REILLY & SULLY

[2017] FamCA 371

FAMILY COURT OF AUSTRALIA

REILLY & SULLY [2017] FamCA 371

FAMILY LAW – CHILDREN – Best interests – Application in a Case – Recovery order –– Where final orders have been made – Where there is no appearance by or on behalf of the father – Where it is appropriate to hear the mother’s application on an undefended basis – Where the mother seeks a recovery order, a restraint order and a suspension of the father’s time with the child – Where orders are made to suspend the operation of the parenting orders – Where a recovery order is made – Where the father is restrained from communicating with or coming into contact with the child – Where the proceedings are adjourned for hearing of the interlocutory dispute.

Family Law Act 1975 (Cth) ss 60CC, 68B

APPLICANT: Ms Reilly

RESPONDENT: Mr Sully

FILE NUMBER: SYC 5651 of 2013

DATE DELIVERED: 18 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 18 May 2017

REPRESENTATION

APPLICANT: Ms Reilly in person

RESPONDENT: There was no appearance by or on behalf of the Respondent

Orders

1. The proceedings are adjourned to the judicial duty list at 9.30 am on 22 May 2017.

2. Until further order, it is ordered that the operation of Orders 1.4, 1.7, 1.8 of the orders made on 16 March 2016 be suspended.

3. Pending further order the father is restrained by injunction from:

   3.1communicating with the child in any way;

   3.2going within 200 metres of the child;

   3.3going within 200 metres of any place where the child resides;

   3.4going within 200 metres of the child’s school.

4. The Court notes that the orders in Order 3 are for the personal protection of the child, B.

5. The Court notes that the orders made today are made until further order but it is the Court’s expectation that in the event that there is a dispute between the parents those orders would be addressed at a hearing on the merits of any interlocutory dispute.

6. A recovery order issue addressed to the Marshal of this Court, all officers of the Australian Federal Police and of the Polices Forces of each of the States and Territories of Australia authorising and directing them if necessary by force to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where there is reason to believe the child B born … 2008 (female) may be found to recover the child and to deliver the child to the mother Ms Reilly.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reilly & Sully has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5651 of 2013

Ms Reilly

Applicant

And

Mr Sully

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, B.  She was born in 2008.  After very protracted proceedings, orders were made on 16 March 2016 in terms agreed between the parents, providing for the mother to have sole parent responsibility for the child, the child to live with her and to spend time with the father including time on alternate weekends, which would involve overnight time, holiday time and time on special days. 

2. The matter comes to Court on the mother’s Application in a Case filed on 12 May 2017.  This is the first return date.  Attempts were made to serve the father with the Application at an address of Suburb C on 17 May on several occasions, and they were unsuccessful.  On the same day, a copy of the application was forwarded by email to the father at ….  There is evidence from a process server that an attempt was made to serve the father personally and the email service was effected.  The matter has been called on a number of occasions today and there is no appearance by or on behalf of the father.  Attempts were made to call the father on a landline and a mobile number provided by the mother, and on each occasion those calls were not answered.  There is evidence attached to the mother’s affidavit sworn 12 May 2017 of email communication between the father and the mother, and the father and a solicitor acting for the mother at the email address …. 

3. I am satisfied that it is appropriate to deal with the mother’s Application as an undefended matter.  A level of service of the Application has been effected, and there are reasons that I will come to as to why it is appropriate to make orders.  The mother’s evidence is that the father has breached the current parenting orders on many occasions.  She concedes that she herself was in breach of the orders at Easter time this year.  She has lodged and has yet to have heard an application that the father be dealt with for contravening orders affecting the child.

4. The mother says that the father contravened the orders on many occasions.  She says that she has not commenced contravention proceedings before now or sought a change in the substantive orders because on each occasion, after a number of days, the child was returned to school or to her, and/or the father gave her to understand that that would happen.  The mother contends that the father is a complicated individual, and she has been trying to manage his behaviour without escalating things. 

5. She gives evidence that the father took the child to a general medical practitioner.  She says that the general practitioner notified her and notified the Department of Family and Community Services about allegations made against her by the father and by the child in relation to physical violence and in relation to the inappropriate conduct of the mother in the nature of the excessive use of alcohol and other matters. 

6. All parenting orders are made on the basis that the best interests of the child is the paramount consideration, and that applies to enforcement proceedings.  The most direct and dangerous of the enforcement mechanisms is a recovery order which directs the authorities to locate and seize a child.

7. As I explained to the mother today, this procedure involves the enforcement of a civil order.  It does not lend itself to urgent questions of safety.  Those matters are the responsibility of the state welfare authorities and the police.  The mother says, although she does not mention it in her affidavit, that she understands there has been a welfare check on the child by the police, on the initiative of the child’s school.  Her evidence would be that she asked the police to take action on various occasions and they declined to do so, because there are court orders in place. 

8. The mother refers to the fact that in the substantive proceedings prior to the final settlement, there were single expert forensic psychiatry reports suggesting that the father may have suffered from conditions associated with a narcissistic personality type, and that caution was expressed by Dr D as the most recent forensic psychiatrist involved in the proceedings, in respect of the father’s capacity.  The mother says that as far as she is aware, since Easter the father has not returned the child to school.  She understands from inquiries she has made today the child is not at school today.

9. She is now worried because this is out of the pattern of the breaches that the father committed previously and that the father’s behaviour has escalated from previous times.  She attached to her affidavit, email correspondence between herself and the father, and between the father and a solicitor acting on her behalf over the Easter situation.  That communication gives rise to some concern.  The father complains in that email correspondence about violent abuse by the mother against the child, and yet complains in that correspondence that the child’s Easter activities with the father have been frustrated by the mother taking the child to Adelaide.  That is a nonsensical position.

10. If the child is in danger because the mother is violent to her, the question of what activities the father had arranged for the child over Easter would be irrelevant.  On his representation, the child is not safe with the mother.  There is something wrong with that complaint, although it would be consistent with retaining the child away from the mother since that time.  Neither of the parties has fully respected the court orders.  The mother would say she did so to a greater extent than the father.  Each of the parties was obliged to apply to have the current orders changed as soon as practicable after he or she was convinced that the orders no longer met the child’s best interests.  And on the face of it, that occurred some long time ago. 

11. The parties’ delay in bringing the proceedings back to Court makes it even more worrying that such a dangerous thing as a recovery order would issue.  The police who execute such orders are sensitive to the problem.  They would invariably require the mother to accompany them on the execution of a recovery order so that there is a familiar person for the child to go to.  This is a child who is nearly nine years of age.  One can describe the process in a number of different ways, but, in effect, the child is going to be arrested by the police.  And depending on how the parties behave, that is going to be a stressful event.

12. I have talked the mother through the less serious options.  She wants an Independent Children’s Lawyer (“ICL”) restored.  I think, in fact, the Registry made contact with the former ICL.  There is no current appointment.  And I understand that she was not available today.  It was not practicable to have somebody attend on behalf of the child’s representative.  I can understand that decision because the value of such an appearance would be that somebody had spoken to the child and that has not happened. 

13. I suggested an order being deferred.  An order could be made and stayed with notice given to the father that it would be executed on a particular date.  On the other hand the matter could be adjourned to another date with a warning that the order could be made.  The worry is the one that the mother has identified.  There is evidence before the Court of some qualification in relation to the father’s mental health.  There is evidence that he is in breach of the current court orders, and there is no suggestion that he has applied to change the orders.  The father is out of contact, both in terms of formal contact and the informal contact that might be possible by telephone communication. 

14. On balance and with obvious misgivings, it seems to me appropriate to make a recovery order. 

15. I will adjourn these proceedings to the judicial duty list at 9.30 am on 22 May 2017 in Sydney.  Normally, I would bring the matter back before myself but I am in a different Registry next week.  I will defer making an order about an ICL.  I do not know yet whether there are going to be controversial proceedings.  It may be that the father will be sanguine about the outcome, or that the matter might resolve in some other way.  In addition such an appointment will incur expense.  Not having had the assistance of an ICL today, I think it would be best to defer that issue to another date. 

16. The wording or the proposed recovery order is different to the order usually made and I will change it. The mother also seeks an order that until further order, the child live with her and that is appropriate. She seeks that the existing parenting orders be suspended – I think she probably just means the orders that provide for the father’s communication and time with the child, not her parental responsibility order, for example. The mother seeks injunctions – these would be under s 68B of the Family Law Act 1975 (Cth) (“the Act”) in relation to restraining the father from communicating with the child, attending within 200 metres of the child, going within 200 metres of any place where the child resides or attends school.

17. I am going to make the orders, in effect, as the mother seeks them.  And I am going to make them until further order, but I will note that is just in case the matter cannot be reached on Monday.  I would expect that as soon as there can be a hearing on the merits on an interlocutory basis, that should happen in relation to those issues. 

18. I note that the orders made today are made until further order, but it is the Court’s expectation that in the event that there is a dispute between the parents, those orders would abide or await a hearing on the merits of any interlocutory dispute. 

19. The Court notes that the orders made pursuant to paragraph 3 of the mother’s Application in a Case are orders for the personal protection of the child, B. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 18 May 2017.

Associate: 

Date:  30 May 2017