Sanders & Sanders (No 2)
[2022] FedCFamC1F 291
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sanders & Sanders (No 2) [2022] FedCFamC1F 291
File number(s): SYC 7660 of 2020 Judgment of: CHRISTIE J Date of judgment: 14 April 2022 Catchwords: FAMILY LAW – RECOVERY ORDER – when the children have been ordered to live with the mother and have no contact with the father for three consecutive months – Where the children have left the mother’s home and returned to the father – where the mother seeks a recovery order – where the children are no longer in the father’s care Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 14 April 2022 Place: Sydney Solicitor for the Applicant: Ms Middlin Solicitor for the Respondent: Mr Marhinin Solicitor for the Independent Children's Lawyer: Ms Jenkins ORDERS
SYC7660/2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SANDERS
Applicant
AND: MR SANDERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.In the event that the children are in the care of the father, other than in accordance with Orders of 7 April 2022, that within 4 hours of them coming into his care, the Respondent Father shall ensure the return the children, X (born 2009) and Y (born 2010, "the children") to the primary care of the Applicant Mother.
2.That in the event the Respondent Father fails to ensure the delivery of the children to the Applicant Mother pursuant to Order 1, then this Recovery Order is addressed to the Marshal, all officers of the Australian Federal Police and all officers of the State and Territory police forces;
(a)Such persons are authorised and directed to find and recover the children X (born 2009) and Y (born 2010) and for that purpose, with such assistance as they require:
(i)to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found
(ii)to stop and search the Motor Vehicle 1 registration number …
(iii)to enter and search the premises or place situated at and known as C Street, Suburb E in the State of New South Wales..
(b)The children are to be delivered to the Mother, Ms Sanders of NN Street, Suburb E in the State of New South Wales or to some other persons she nominates in writing to receive the children on her behalf;
(c)Mr Sanders of C Street, Suburb E in the State of New South Wales is prohibited from again removing or taking possession of the child (other than in accordance with the Orders made on 7 April 2022 by the Federal Circuit and Family Court of Australia (Division One));
(d)If Mr Sanders of C Street, Suburb E in the State of New South Wales again removes or takes possession of the child (other than in accordance with the Orders made on 7 April 2022 by the Federal Circuit and Family Court of Australia (Division One)), he may be arrested without a warrant;
(e)The Recovery Order remains in force for a period of 12 months.
(f)The Registry Manager shall provide the person(s) to whom the Recovery order is addressed with such information as the Registry Manager receives that may assist in finding and recovering the child.
THE COURT NOTES THAT:
A.Unless otherwise specified in the order:
i.The order remains in force for 12 months.
ii.Each term of the order continues to have effect until the end of the period it remains in force, regardless of whether anything has previously been done in accordance with the order.
B.Section 122AA of the Family Law Act 1975 authorises the use of reasonable force in making an arrest or to prevent the escape of a person after arrest.
C.Section 122A sets out the powers of entry and search for the purposes of arresting a person.
D.It is at the discretion of the person authorised or directed to find and recover a child under this order to recover the child from the place where the child is found if the person to whom the child is to be returned or delivered it not present and able to receive the child.
E.If a person who is authorised or directed to find and recover a child is given information provided to the Registrar of a court under a location order, that information shall not be disclosed to any person, except as authorised by section 67P of the Family Law Act 1975.
F.Sections 65S to 65W of the Family Law Act 1975 set out what happens to a person who is arrested without warrant.
G.Section 67X provides that it is an offence to prevent or hinder the taking of action by a person authorised by a recovery order. A person found guilty of such an offence can be fined, ordered to enter a recognizance or imprisoned.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanders & Sanders has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
CHRISITE J:
These are proceedings for a recovery order. The mother brought an application today for a recovery order in respect of the children X, born in 2009, and Y, born in 2010. Final orders were made on 7 April 2022, and the history and background to these proceedings is set out in that judgment. After orders were made on 7 April 2022, the children came into the care of their mother and remained in her care, albeit not without problems, until 11 April 2022. During that period, according to the mother’s affidavit evidence, the children were in her care, and she arranged to be supported by friends and arranged for the children to see and spend time with friends.
According to the mother’s affidavit evidence, X would appear to have been unhappy in her care, and Y, from time to time, quite happy in her care. As it transpired on 11 April 2022 unbeknownst to the mother, the children left her home and travelled to the home of the father located relatively nearby. The father, for his part, says he did not know they were coming, and when they arrived, took no action to allow them to enter his home. As a consequence, according to the father’s affidavit evidence, they broke into his home. Thereafter, they remained with the father. The father filed an affidavit today in response to the material filed by the mother.
In that affidavit, he sets out briefly – and there’s no criticism of him for that – the events which have occurred since the children came into his home. At no time in that affidavit material does he talk about any attempt he made to return the children to their mother directly. According to the father’s evidence, there were two incidents which occurred while the children were in his home which were of concern to him. First concerned his son [Y] banging his head against the wall, and the second was his son X placing a belt around his neck. As a consequence of those two actions by Y and X, together with what they said to their father which indicated that they might undertake acts of self-harm, the father made contact with emergency services by ringing triple 0.
He did that on 11 April 2022. The children were not conveyed to hospital on that day. The father was given the details of the mental health team. He made contact with them. On 12 April 2022, at approximately 3.30 pm following advice from the mental health team and apparently 24 hours after the events of the day before which had caused him concern, the father took the children to U Hospital where they have remained. The Department of Communities and Justice have been involved, and in the mother’s affidavit evidence, it is suggested that reports are that the children are happy at the hospital. The father was in default of his obligations under the orders which required him to support the orders which provided (a) that he was injuncted from having the children in his care and that the children were to be in their mother’s care.
It is important to understand that the family therapist who was assisting the parties commented in her evidence at the final hearing that the children feel as though they need their father’s permission to be with their mother, and they need their father to tell them that they are safe with their mother. I have heard submissions from the Independent Children’s Lawyer in this case. The Independent Children’s Lawyer tendered into evidence a copy of email correspondence between herself and the children’s family therapist, Ms M. That evidence suggests two things: (1) that the father continues to believe that anybody who does not support his point of view is corrupt, but (2) that the children are experiencing these circumstances as extremely difficult, and that the father’s actions in obtaining for the medical assistance, are, as his counsel suggested, appropriate.
That said, unless some action is taken to ensure that the children remain in the care of their mother, it will, as the solicitor for the mother, Ms Middlin said, be necessary for this application to come back before the Court. Accordingly, I intend to make orders such that, if the father were to again find himself with the children in his care, there will be a recovery order in place. I will make the recovery order today, but given that the children are not in his care, it will not be a recovery order which says that the children are to be recovered from the father today. The three consecutive months by which the children were not to see their father were designed to provide a break for the children.
Those three consecutive months haven’t started yet, and it is only when the children are able to have some distance from the conflict that the situation may resolve. I take particular comfort from the following facts: the children have not, at least according to the affidavit evidence filed by the mother, engaged in acts of self-harm whilst in the care of the mother; the child Y appears to have enjoyed some of the time he has spent with his mother to date; the children have not reported concerns about self-harm either to Ms M or the Independent Children’s Lawyer. I am told, albeit second-hand in the mother’s affidavit material, that the children are in a position, so far as the hospital is concerned, to be discharged.
It is important that conduct of the children in the father’s household does not obtain for them that which they seek, namely, to remain in the father’s care.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 14 April 2022
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