Surry and Surry (No 2)

[2018] FamCA 949

FAMILY COURT OF AUSTRALIA

SURRY & SURRY (NO. 2) [2018] FamCA 949

FAMILY LAW – CHILDREN – Where the Court orders a further Recovery Order to issue where a Provisional Apprehended Domestic Violence Order is in existence.

Family Law Act 1975
APPLICANT:	Mr Surry

RESPONDENT: Ms Surry

FILE NUMBER: BRC 12807 of 2016

DATE DELIVERED: 9 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 9 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: DME Law

NO APPEARANCE BY THE RESPONDENT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms A Smerdon

Legal Aid Queensland

Orders

1. The Court discharges the Orders made on Wednesday 7 November 2018.

2. That on the oral application of the father on Wednesday 7 November 2018 and as a result of recent events, the proceedings before the Court are re-opened.

3. That the children, X born … 2007 and Y born … 2010, live with the father.

4. That the father be permitted to engage Ms B, psychologist, immediately to provide therapeutic counselling for the children.

5. That the children immediately attend C School from Monday 12 November 2018.

6. That the mother be restrained and an injunction issue restraining the mother from:

   (a)contacting the children by telephone or by other electronic means unless it is facilitated and initiated by the father; and

   (b)seeking to contact or remove the children from the father’s care or the children’s school.

7. That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)to find and recover the children, X born … 2007 and Y born … 2010 and to deliver the children to the father at D Street, Suburb E in the State of Queensland, or such other place as the father and the person effecting such recovery agree to be appropriate; and

   (b)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 said children may be found.

8. That this Recovery Order remains in force for a period of one (1) month.

9. That the mother, her servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from the father’s care until further order of the Court.

10. The mother file and serve a Response to the father’s Application in a Case filed 2 November 2018 supported by an Affidavit by 4pm on Tuesday, 21 November 2018.

11. That the matter be adjourned to 9:30am on Friday 23 November 2018 in the Family Court of Australia at Brisbane.

Notation:

A.The court notes and has taken into account the Provisional Apprehended Violence Order against the Father authorised at 5:18pm on 6 November 2018 and served upon the father at 6:00pm on 7 November 2018. The Court accepts the Orders made today are inconsistent with the Family Violence Order and delivered Reasons today and on Wednesday as to why the Order the Court has made are in the best interests of the children on an interim basis.

B.The Court further notes the mother was present in person on Wednesday when Reasons for the order were delivered orally and that those Reasons are currently being transcribed.

C.The Court is aware of the likely distress the children will suffer in transition to the father’s care as provided by this Order and supports the father’s proposal that counselling with Ms B begin immediately today, which might involve the police handing the children to the father at Ms B’s rooms.

D.At the conclusion of delivery of Reasons on Wednesday 7 November 2018, the mother indicated that there might be a less stressful way of transitioning the children to the father and, if the parties agree on a process other than a Recovery Order, such that the children are placed in the father’s care today, then the Court should be informed so that police authorities can be advised.

E.The father indicated that the paternal grandmother is travelling from Lightning Ridge to his home, due to arrive this Friday, the 9 November 2018 and his intention is that his mother remain in the home for the foreseeable future.

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 Surry & Surry (No 2) 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 BRISBANE

FILE NUMBER: BRC 12807 of 2016

Mr Surry

Applicant

And

Ms Surry

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. As the transcript will reflect, this matter was before me on Wednesday, 7 November 2018, at which time I gave reasons for orders made on that day, which included a Recovery Order to be executed that day. In the Reasons, I made clear that my concern about making the order included that the Court was aware that the children had previously expressed concerns about the father to a report writer as recently as earlier this year. Nonetheless, for the reasons given, I made the order I did, which included that the children live with the father. It became apparent later that day, and exhibits, actually, 4 and 5 today reflect this, that there was a fact not disclosed to the Court by the mother and not known to either, I am satisfied, the father or the Independent Children’s Lawyer (“ICL”), that has created a difficulty with the operation of Section 68P of the Family Law Act 1975.

2. Although the Court was aware that the police had interviewed X, and that X had made a disclosure to the police, the Court was not aware that at or about 5.18pm on 6 November 2018 (being the Tuesday night), a police officer in New South Wales, based on information then available to that police officer, authorised a Provisional Apprehended Domestic Violence Order under the New South Wales legislation known as the Crimes (Domestic and Personal Violence) Act 2007.  The order requires the father, who has now been served with the order by Suburb E Police at 6.00pm on Wednesday, 7 November 2018, to appear before the Q Local Court in Sydney on Wednesday, 21 November 2018.  The Order provides that the father:

   …must not do any of the following to [Y], [X], [Ms Surry], or anyone they have a domestic relationship with:

   A)       assault or threaten them,

   B)       stalk, harass or intimidate them, and

   C)       intentionally or recklessly destroy or damage any property that belongs to or is in the possession of [Y], [X], [Ms Surry]

3. Furthermore, order 3 provides, importantly, that the father:

   …must not approach:

   A)       the school or any other place [Y], [X], [Ms Surry] might go to for study,

   B)       any place they might go to for childcare, or

   C)       any of the following places

   [R Street, Suburb S].”

4. The order I made, which required the children to live with the father is inconsistent with the tenor of the Provisional Apprehended Domestic Violence Order.  Although, the address of R Street, Suburb S, was not the address that the Court was informed the children were being held in the care of the maternal grandmother and maternal aunt.

5. In the circumstances, and to avoid any misunderstanding, the Court today discharges the Orders made on 7 November 2018.  However, there is no information before the Court that the Court would regard as different, other than for the Apprehended Domestic Violence Order, to persuade it not to make the orders it made on that day, for which reasons were given.  Accordingly, I make those orders in exactly the same terms now, including the Recovery Order.

6. The information available from the records tendered on 7 November 2018 do reveal that X has made an allegation.  However, it is clear from what the mother said to me that the allegation is exactly the same allegation that was before authorities in Queensland and investigated, including through a number of s.93A interviews, and was fully tested within this Court in a trial, upon which the Court has indicated, although reserved, it will find that the father is not an unacceptable risk of harm to the children in the way urged upon the Court by the mother.

7. So to the extent that the order I make today is inconsistent, it seems to me clear that the order I make is consistent with the evidence I have, which was not available to the police in New South Wales.  No criticisms of the police in New South Wales is intended, as they can only deal with what they are told.  I understand the dilemma it created for the Suburb E Police Service who were required to execute a Recovery Order, but where there was an inconsistent earlier Apprehended Domestic Violence Order.

8. In the circumstances, the orders will issue today.  I will direct that a copy of these Reasons be published as well, particularly because the mother is not here today, although attempts to have her informed by email of the listing today were made, I am satisfied, by the registry.

9. Sadly, I further note that the Court made an order that the children live with the father.  There is no evidence before the Court that the mother or any of her family have made any endeavour to comply with the order of the Court and arrange for the children to go into the father’s care.  This is, in my view, could be an example of the regrettable approach of the mother that has forced the Court to issue the Recovery Order as a means of transferring the children from the mother, or mother’s family’s care, to the father.

10. I also reconfirm that one of the concerns I had on 7 November 2018 was that the mother, who had, without the father’s consent, left Queensland, purportedly to go to Victoria to see a relation, could abscond with the children so as to avoid the orders made by the Court.  I really hope that is not going to be the case.

11. I am going to make the orders.  The order will have exactly what it had been on Wednesday, 7 November 208, and the order will say that the Court notes and has taken into account the Provisional Apprehended Domestic Violence Order against the father authorised at 5.18pm on 6 November 2018 and served upon the father at 6.00pm on 7 November 2018.  The Court accepts that the orders made today are inconsistent with the family violence order referred to and has delivered reasons today, and on 7 November 2018, as to why the orders the Court has made are in the best interests of the children on an interim basis.  The Court further notes that the mother was present in person on Wednesday when reasons for the order were delivered orally, and that those reasons are currently being transcribed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 9 November 2018.

Associate: 

Date:  20 November 2018