SYKES & PELL

[2011] FamCA 695

FAMILY COURT OF AUSTRALIA

SYKES & PELL [2011] FamCA 695

FAMILY LAW – CHILDREN – Where the matter has been determined on a final basis – Final orders provide for the children to live with the father and to spend supervised time only with the mother – Where the mother has unilaterally retained the children following allegations of abuse against the father – Where the trial judge made adverse credit findings with respect to the mother – Mother has filed no material to support her allegations.

APPLICANT: Mr Sykes

RESPONDENT: Ms Pell

FILE NUMBER: BRC 8845 of 2007

DATE DELIVERED: 1 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 1 September 2011

REPRESENTATION

THE APPLICANT: Mr Sykes appearing in person

THE RESPONDENT: Ms Pell appearing in person

Orders

1. Should the Mother Ms Pell not return B (female) born … 1999 and C (female) born … 2002 (“the children”) to the Father Mr Sykes by 4:00pm Friday 2 September 2011, a Recovery Order shall issue forthwith 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.

1. Such persons are authorised and directed to find and recover the children, B (female) born … 1999 and C (female) born … 2002 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 the children may be found.

1. The children are to be delivered to the Father in the State of Queensland or to such other address as agreed between the persons executing the Recovery Order and the Father.

1. The Recovery Order remains in force for a period of six months.

IT IS NOTED that publication of this judgment under the pseudonym Sykes & Pell 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: BRC 8845  of 2007

Mr Sykes

Applicant

And

Mr Pell

Respondent

Ex Tempore

REASONS FOR JUDGMENT

1. The matter before the Court is an application filed by the father, Mr Sykes, on 24 August 2011, seeking recovery orders to be made with respect to two children namely B born in 1999 and C born in 2002.  The father relies upon his application filed 24 August 2011, and an affidavit filed 24 August 2011.

2. On this occasion, the mother, Ms Pell has appeared.  She has not filed any application or affidavit material before me but has handed up, or tendered to the Court, three documents which I have admitted as exhibits. Exhibit 1 being the letter she has obtained from the Department of Communities (Child Safety Services) to her dated 29 August 2011.  That letter simply reflects that on 15 August the Department recorded a child protection notification with respect to the children and confirmed that, as is the usual course, the Department would undertake an investigation. 

3. The second exhibit, or Exhibit 2, are some notes prepared by Ms Pell which she tells me from the bar table are notes concerning what B said on the occasion of attending with the mother on a Dr D, of the E Medical Practice.  The report of the E Medical Practice, dated 12 August 2011, has been admitted as Exhibit 3 for the purpose of this application.

4. My review of the file in this matter shows that it has a very lengthy history.  Without being exhaustive, it appears that as long ago as 13 April 2006, interim orders were made by the Federal Magistrates Court for the children to live with the mother and spend time with the father.  A little over a year later on 2 May 2007, final orders were made by consent for the children to live with the mother and spend time with the father for four consecutive nights each fortnight plus half each school holidays. 

5. In 2008, the mother was convicted of contravening orders by Jarrett FM and he ordered inter alia seven consecutive entire weeks of make-up contact between the father and the children.  On 18 June 2008, the father commenced proceedings to vary those prior orders of the Federal Magistrates Court seeking inter alia that the children live with him.  The mother opposed that application and sought to reduce the time the father spent with both children.  At about that stage, the matter was transferred from the Federal Magistrates Court to the Family Court of Australia. 

6. On 19 August 2009, following a four-day trial of the issues between the parties, Barry J made interim orders and on 26 August 2010, final orders were made by Barry J.  In respect of those final orders, the orders were that both children live with the father and for him to have sole parental responsibility, for the mother to spent time with the children each alternative weekend from Friday until Monday; some holiday contact and for two to three hours up to four afternoons per fortnight after school.  All of that contact or time in communication with the children to be in the presence of, and supervised by, the maternal grandfather, Mr F Pell.  There are other orders – for telephone communication and other injunctive orders and the like.  There was also an order made for the matter to go to a dispute resolution process in the event of there being any issues. 

7. On the father’s material, filed for the purpose of this application and I refer to his affidavit of the 24 August 2011, he deposes in paragraphs 11 to 14 essentially that on 18 August 2011, he received a text message from the mother effectively informing him that she was not returning the children, he says, “due to some allegations she had made”.  He annexes the relevant text messages to his affidavit.

8. The 18 August, he deposes, was not a date upon which there had been any agreement for time to be spent with the children by the mother. In the event, since that date, the children have not seen or had any contact with the father and he brought this application seeking recovery orders. Whilst his application is expressed to be made pursuant to section 65Q of the Family Law Act 1975, it is clear enough in the terms of the orders sought and the contents of his affidavit that rather than a warrant under section 65Q, what the father seeks is a recovery order pursuant to section 67Q of the Act.

9. The father’s material annexes to the affidavit, against the background that I have briefly referred to, the reasons for judgment delivered by Barry J on the occasion on which he made interim orders as earlier referred to.  It is fair to say that on a reading of those orders, Barry J made adverse credit findings – and very adverse credit findings with respect to the mother. 

10. The mother has not filed any application before me, nor has she filed any affidavit material.  Her material is limited to the exhibits to which I have referred.  The mother has not filed before me any evidence from the Department as to any disclosures B has made to any independent officer of that Department.  The medical report that the mother tendered, and which was admitted and marked Exhibit 3, purports to record a history so far as that in the report – but the difficulty of that report is that it is not plain from it whether the history was provided in any sense directly from the child.  It records that B attended upon the doctor in the presence of her grandfather.

11. It would seem from the content of the history, at least in part, that some of that history was perhaps provided by the grandfather and as I say there is nothing before me to suggest that B herself provided directly to the doctor any relevant history, save for the notes of Ms Pell that she has tendered and which I have admitted as an exhibit. 

12. In circumstances where there is no sworn affidavit from the mother, and indeed against the background of the concerning findings so far as credit of the mother, and against the background of the lengthy history of litigation in this matter, it does not seem to me that the evidence such as it is proffered by the mother on this application, is sufficient to entertain disturbing of final orders made on 26 August 2010.  On that basis, there exists an order for both children to live with the father and for him to sole parental responsibility and for supervised time to be in place. 

13. If the mother seeks to amend those orders, she should do so by filing an appropriate application and by formal material.  On her own version, she has had since 18 August to do something formally in terms of enlivening the jurisdiction of the Court. 

14. On that basis I do not propose on this application to disturb the final orders that exist.  I will make orders so far as a recovery order is concerned, but I will suspend the operation of that order for 24 hours to enable the mother to voluntarily surrender the possession of the children to the father.  If that doesn’t occur, then the recovery order will take effect.  Of course, the provision of the 24 hours is simply to allow the children to avoid the trauma of being forcibly removed by police officers from their mother’s care into the care of the father.  There is something then of an onus upon the mother to comply with the recovery order if she seeks to avoid that trauma to both children.

RECORDED  :   NOT TRANSCRIBED

1. It is noted that Ms Pell proposes to take both children to their normal school tomorrow morning and Mr Sykes will collect both children from school at the conclusion.  If that doesn’t occur tomorrow afternoon, obviously the recovery order will take effect thereafter so I will suspend the operation of the order until 4 pm tomorrow, 2 September 2011.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 1 September 2011.

Associate:  

Date:  1 September 2011