Short and Turlison

[2016] FamCA 439

FAMILY COURT OF AUSTRALIA

SHORT & TURLISON [2016] FamCA 439

FAMILY LAW – CHILDREN – Recovery order sought by father – Order made

Family Law Act 1975 (Cth)

APPLICANT: Mr Short

RESPONDENT: Ms Turlison

FILE NUMBER: LEC 324 of 2008

DATE DELIVERED: 27 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Hazan, Trenches McKenzie Cox

RESPONDENT: No Appearance

Orders

IT IS ORDERED THAT

1. The Applicant Father is granted leave to proceed ex parte.

AND IT IS FURTHER ORDRED THAT

1. Pursuant to s 67N of the Family Law Act 1975 (Cth), the Secretary of the Department of Human Services (the Department) provide to the Registry Manager of the Family Court of Australia at Brisbane any information about the location of the child, B, a female born … 2005 that is contained in or comes into the records of the Department.

2. For the purposes of the preceding Order:

   (a)the Secretary will cause the records of the Department to be searched within 10 days after service of the Department of a sealed copy of this Order, and every three (3) months thereafter while the Order is in force;

   (b)the Secretary will provide written notification to the Registrar of this Court of the result of each search of the Department’s records;

   (c)information about the child’s location will include information about the location of the mother, Ms Turlison born … 1981 with whom the child is believed to be, and will include but not limited to:

   (i)information about any address of the child or of the mother, Ms Turlison born … 1981;

   (ii)information about the name and address of any person with whom the Department’s records suggest the child or the mother, Ms Turlison born … 1981 may be;  and

   (iii)location arising from any payment by the Department to or in relation to the child or the mother, Ms Turlison … 1981 or any person with whom the Department’s records suggest the child or the mother, Ms Turlison born … may be including:

   (A)the name of any financial institution conducting any account to which such payment is or was made, and the branch at which the account is or was conducted;

   (B)the name and number of any account to which such payment is or was made.

3. Pursuant to ss 67N(8) of the Family Law Act 1975 (Cth), if the Secretary provides information under this Order, the Secretary must, at the same time, provide any information about actual or threatened violence to the child, to a parent of the child, or to another person with whom the child lives, that is in the records of the Department.

AND IT IS FURTHER OREDRED THAT

1. Pursuant to s 67U of the Family Law Act 1975 (Cth), a Recovery Order shall issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

2. Such persons are authorised and directed to find and recover the child, B, a female born … 2005, and for that purpose, with such assistance as they require 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 each child may be found.

3. The child, B, a female born … 2005, is to be delivered to the care of their father, Mr Short at such address as agreed to between the person executing the Recovery Order and the father.

AND IT IS FURTHER ORDERED THAT

1. The Respondent Mother Ms Turlison, born … 1981, herself by her servants and/or agents is and they are hereby restrained from removing or attempting to remove or causing or permitting the child, B, a female born … 2005, from the father’s care following her return to his care upon execution of the Recovery Order made today and from any school at which the child attends.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 324 of 2008

Mr Short

Applicant

And

Ms Turlison

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The concerns about the mother’s behaviour being a risk to the child’s emotional wellbeing and development – and, of course, the contents of the orders made by consent by Kent J which reflect, it seems to me, those concerns in the manner in which orders provide for the child’s time with her mother to occur in the six stages that are outlined within that order – persuade me to give leave to proceed on an ex parte basis.

2. The Court has before it an Application filed on 27 May 2016 by the father of the child B, born in 2005.  By that Application, the father seeks a number of orders, the first of which is that he be granted leave to make the Application on an ex parte basis.  As will be apparent from recourse to the discourse between myself and Ms Hazan, who appears on his behalf this afternoon, I have given him leave to proceed on that basis.  I have done so because I am satisfied, having regard to the requirements imposed by Rule 5.12(a)(ii), that the contents of his affidavit comply with and meet the requirements imposed by Rule 5.12(b) and establish the following: there has, in this case, been a history of allegations of child abuse:  there have previously been proceedings on foot between the child’s parents – initially resolved by order made in the Federal Magistrates Court in July 2009 but, subsequent to that, by orders made by Demack FM (as her Honour then was) on 27 August 2012 by which the father was accorded sole parental responsibility for the child.  That order was that the child live with him and that he be entitled re-enrol her at C School in D Town.  As well as injunctive relief directed towards the mother, orders were made for the child to spend supervised time with her at the E Town Children’s Contact Centre.

3. More recently, orders were made by consent by Kent J on 5 May 2015.  These orders, in a detailed way, provide for the manner in which the child, who is to live with her father pursuant to them, is to spend time with her mother.  So insofar as the requirement for (b)(iii) of Rule 5.12 is concerned, these orders are the orders currently in force.

4. It is certainly alleged (as I apprehend the material) by the Applicant that the Respondent has previously breached previous orders.  It is clear that neither the Respondent nor any legal representative who may have been engaged by her have been told of an intention to make an application for a recovery order in a specific or particularised manner – although I note reference in the contents of the text communications to the concept of a recovery order being made.  So to the extent that that could be thought to have been notice, it’s certainly a prospect that appears to have been raised.

5. Insofar as the point that there will be any hardship, danger or prejudice to the Respondent or the child if an order is made ex parte, the submissions made on behalf of the Applicant are that, absent an order made ex parte, there may well be danger to the child as a consequence of continued exposure to the Respondent’s comments (as demonstrated by the correspondence exhibited to the father’s affidavit, the contents of his affidavit – where relevant to this topic –  and the contents of Exhibits 1 through 5 (also, where relevant to this topic).  It is also clearly submitted on behalf of the Applicant that there is a significant risk of danger or harm to the child if an order for her recovery and return to his primary care is not made – the same submissions are relied upon to urge that such order should be made urgently.

6. The father, in his affidavit, has outlined for the Court his knowledge of the Respondent’s address. I accept the submissions made by his legal representative that, as he has not himself visited that residence, he does not have personal knowledge as to whether, in fact, the Respondent remains resident at those premises. 

7. I am satisfied, having regard to the matters in Rule 5.12, that the order should be made on an ex parte basis and I give leave for that. 

8. The recovery order sought in the Application is sought pursuant to s 67U of the Family Law Act 1975, which provides that, in proceedings for a recovery order, the Court may, subject to s 67V, make such recovery order as it thinks proper.

9. Section 67V of the Family Law Act 1975 provides that, in deciding whether to make a recovery order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.  Reference, therefore, must be had to the familiar and well-known provisions contained within sections 60CB to 60CG and, in particular, s 60CC of the Family Law Act 1975. It is clear that the proceedings here involve an application for the making of a recovery order as that term is defined by s 67Q of the Family Law Act 1975. 

10. I am satisfied that making a recovery order in the circumstances of this case is something which is in the child’s best interests.

11. I arrive at this conclusion at this time for the following reasons. One, it is clear she has lived primarily with her father since at least orders were made by Demack FM in August 2012.  It is also clear that agreement had been reached as between her parents that she continue to live primarily with her father – such agreement having been evidenced by the terms of the order made by consent by Kent J on 5 May 2015.  The mother’s actions in retaining the child in her care, contrary to those orders (at least on a prima facie basis) clearly seek to impose a significant change to the circumstances which, for the child, have existed for a significant period of time.

12. The evidence also establishes that, since the Respondent’s decision to retain the child in her care (since 20 May 2016) she has failed to continue to attend at C School, D Town – where she has attended subsequent to her re-enrolment by her father in 2012.  Reference to evidence provided by Ms F, the principal of that school, and the correspondence from Ms G, the assistant principal and the child’s teacher at that school, clearly establish that she has attended consistently, has been well cared for, has participated in all school activities, has been observed to be a child of a kind and gentle demeanour and who has friends and is, it seems, well settled.  Within those circumstances then, the significant disruption to her day-to-day life, caused as a consequence of her mother’s decision not to return her to her father’s care to permit her to continue to attend at the school, is another very relevant factor, in my view. 

13. There is nothing in the evidence to suggest that the child is other than well cared for by her father: in fact, the evidence provided by the school makes it abundantly clear that she is a child whose needs are being well met by him.  So much can only be seen as having been conceded by the mother when she agreed to the orders made by consent in May last year.

14. It is of significant concern to the Court that it appears from the Applicant’s affidavit material and the contents of the Exhibits that the child is currently being exposed to (at the very least) the mother’s views of the father’s behaviour toward her – those views having already been canvassed in the course of litigation over a number of years and those matters having already been the subject of the significant injunctive relief agreed to by the mother and which forms part of the orders made in May last year by consent.

15. I take into account, also, that it seems to me, at least on a prima facie basis, that the contents of the text messages (the Exhibits) may well provide a basis to conclude that the mother has breached the undertakings set out in order 9 of the May 2015 orders because it seems to me to be arguable that she has expressed a view, again, that the father is the perpetrator of abuse of the child. 

16. In particular, regard is had to the contents of the texts:

    (a)sent at 12.16 pm: “you all tough throwing women around and abusing kids”;

    (b)sent 7.50 am: “Well, I have got news for you.  You want to try and fight me for the child.  She doesn’t want you.  She knows you are sick.”; and 

    (c)further: “And all the mental health checks I had to show your lawyer wasn’t good enough, was it, when you are the real problem?  A sicko, disgusting, poor excuse of a father.  Well, guess what, no more.  Come and pick up your daughter, [Mr Short]”.

17. Additionally, the contents of texts sent from a different number (one the father suspects is that of the mother’s current partner) include the following:

    (a)“The cops know you play with little girls.”; and

    (b)a later message:  “Not to mention the uncohearsed statements from the child of what you did to her, and the child protection unit for what the NSW police would really like to talk to you soon.”; and

    (c)further: “Remember this is not about me or [Ms Turlison].  It’s all about that innocent little girl you have terrorised and abused all these years and she has had enough”.

18. These pieces of evidence are more than enough to satisfy me, on a prima facie basis, that there is a very real and significant risk that, whilst the child remains in the care of the Respondent, it is highly likely she is again being exposed to conversations which include comments such as them, or comments about aspects of allegations previously made by her mother about asserted behaviour by her father toward her.

19. Given the imperative contained within s 60CC of ensuring that children are protected from the risk of harm in the manner outlined there, I am well satisfied that an order requiring the child to be returned to her father’s care (as is provided for in the May 2015 Order) is one which is in her best interests. 

20. It is, of course, always concerning to the Court that a child be recovered by police officers.  I have given serious consideration as to whether, in this case, it may be possible to make an order requiring the Respondent to return the child to her father by a specified time, failing which the recovery order issue.  Unfortunately, the circumstances of this case are such that I have reached the conclusion that the risks to the child of the Respondent becoming aware of the fact that an order for the child’s return to her father has been made are greater than the highly significant risks and impact to her of police executing a Recovery Order.

21. So in some sense – somewhat reluctantly – but because I have arrived at this conclusion firmly – I have declined to make an order permitting the Respondent the opportunity to act to ensure that the child is not exposed to further harm. 

22. A further matter I have taken into account in arriving at my conclusions about the recovery order, the manner in which it should issue and its terms is that the text communications forming part of the Exhibits seem to me to contain taunts to the father to attempt to retrieve the child.  Despite having made those suggestions that he collect the child, there is nothing to suggest the Respondent has done anything to return the child to him.  This gives rise to significant concern that, in the event that the Respondent was made aware of the recovery order, the child may be exposed to further turmoil, upset, harm and distressing circumstances.

23. I also take into account, as I have said during the course of discourse, that the existing final consent orders seem to me to provide for what is to happen next: that is, after the child’s return to her father’s primary care. 

24. I am not persuaded to make an order restricting the operation of the recovery order, or restricting the time within which it remains in force, with the consequence that s 67W(1) shall operate to ensure that the recovery order remains in force for 12 months.

25. I have arrived at this conclusion because I am not persuaded that it is in the child’s best interests that her father, who is primarily responsible for her care and, no doubt, primarily responsible for meeting her financial needs, be put to the expense of having to return to Court in the unfortunate event that the recovery order is not executed within a shorter period of time.

26. I am persuaded that information orders are appropriate, proper and something that should properly be made in order to obviate a necessity to return to Court and to promote the prospect of a successful execution of the recovery order.

27. The Application relied upon also seeks additional orders of an injunctive nature to restrain the mother from removing or attempting to remove the child from her father’s care or from any school attended by her. 

28. Whilst my preliminary view is that it may well be said that an implementation of Clauses 6 and 16.6 of the Consent Order made in May 2015 will have the effect that the child’s time with her mother (following her return to her father’s care) is to occur on a supervised basis at a children’s contact centre and that there is no necessity to make orders of an injunctive nature sought by the Applicant, I am concerned in this case that there is a risk, given the contents of the texts contained within the Exhibits, that the Respondent may attempt (perhaps with the assistance of her partner) to remove the child from her father’s care or from the school to which she will be returned following her return to him. 

29. For those reasons, then, I am persuaded that it is appropriate to make an order in terms of Clause 8 of the Application in a Case filed 27 May 2016 and that until further order the mother, Ms Turlison, born in 1981, herself or by her servants and/or agents is, and they are, hereby restrained from removing or attempting to remove, or causing or permitting the child, B, born in 2005, from the father’s care (following her return to his care upon execution of the recovery order made today) and from any school at which the child attends.

30. For those reasons then, a recovery order shall issue, an information order shall issue and injunctive orders shall issue. 

31. I direct that a copy of the Reasons I have provided orally be prepared forthwith and provided to the parties as soon as is practicable. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 May 2016.

Associate:                 

Date:    27 May 2016