Tabano and Yabon

[2019] FamCA 952

FAMILY COURT OF AUSTRALIA

TABANO & YABON [2019] FamCA 952

FAMILY LAW – CHILDREN – Recovery Order – Where orders were made earlier this year for three children live with their mother who was also given sole parental responsibility for them – Where one of the children has left the mother’s care on several occasions since then and Recovery Orders have been issued – Where there is another Recovery Order application for her return – Where the mother asserts that the father had a hand in this – Where this is disputed by the father who says that the child has elected to “vote with her feet” – Where the allegations made by the child as to why she has been leaving her mother’s care are concerning, but given the background of the case, and previous findings, those matters are to be left for consideration and determination at trial – Where the Recovery Order is to issue after the father is given the opportunity to contact the child by telephone and try to convince her to return to her mother’s care.

APPLICANT: Ms Tabano

RESPONDENT: Mr Yabon

INDEPENDENT CHILDREN’S LAWYER: Gary Rolfe

FILE NUMBER: BRC 8367 of 2016

DATE DELIVERED: 10 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 9 December 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Jurgensen
Jurgensen Horne Lawyers

SOLICITOR FOR THE RESPONDENT: Ms French
Cornerstone Law Offices

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rolfe
Gary Rolfe Solicitors

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the Order of Judge Purdon-Sully of 26 July 2019 specifically restraining the father from any communication with the child, X born … 2006 (“the child”), is suspended until 5.00 pm on Tuesday, 10 December 2019 for the specific purpose of his telephone communication with the said child to persuade her to return to the care of her mother pending the hearing of the trial in this matter that is being expedited to meet the best interests of the three children subject of these parenting proceedings. 

2. That a Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police and to all Officers of the Police Forces of all the States and Territories of Australia.

3. That such persons are authorised and directed to find and recover the child, X born … 2006, 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 child may be found.

4. That the child be delivered to the mother at B Street, Suburb A in the State of Queensland, or to such other address as agreed to between the person executing the Recovery Order and the Applicant.

5. That the Recovery Order not be executed before 5.00 pm on Tuesday, 10 December 2019.

6. That on provision of information by the mother that the child has not been returned voluntarily to her care the Recovery Order be executed as soon as possible thereafter.

7. That the Recovery Order remains in force for a period of twelve (12) months from the date of this Order.

IT IS NOTED THAT

(A)The Australian Federal Police may telephone the mother to ascertain if the child had been returned voluntarily.

IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. That the respondent father, his servants and/or agents, including expressly, Ms D, Ms E, Mr F Yabon and Ms G, are hereby restrained from again removing or causing the removal of or attempting to remove the child from the care of the mother and from keeping the child from the care of the mother.

2. To the extent that it is practicable, any further applications for Recovery Orders prior to the commencement of the trial herein, shall be brought to the attention of his Honour Justice Forrest for listing before his Honour and, in the event that there are any further such applications for Recovery Orders, the father can be expected to have to show cause why he should be heard at all in response to any such applications.

3. That pursuant to s 91B of the Family Law Act 1975 (Cth), the Director-General of the Queensland Department of Child Safety, Youth and Women is requested to intervene in these proceedings.

AND IT IS FURTHER ORDERED

1. That the matter be listed for trial commencing at 10.00 am on Monday, 30 March 2020 with an estimated hearing time of five (5) days.

2. That leave is granted to the parties to, by 4.00 pm on Friday, 28 February 2020, make, file and serve one affidavit of evidence in chief for each person who is going to be a witness whose evidence they will be relying upon at the trial, including only one affidavit of each of the mother and the father themselves.

3. That except as already provided by these Orders, the parties shall not file any further affidavits, and may not rely upon any past affidavit previously filed, without the leave of the Court first obtained.

4. That the mother and the father shall attend upon the family report writer as directed by the Independent Children’s Lawyer and/or the family report writer for the purposes of interviews for the preparation of an updated family report and the children shall be made available for interviews with the family report writer as required.

5. That each of the mother and father shall use their best endeavours to ensure that significant others in their lives make themselves available as requested by the family report writer to be interviewed in the preparation of the updated family report.

6. That the Independent Children’s Lawyer shall confer with the parties and prepare an indexed and paginated bundle of documents which are to be tendered into evidence from the documents produced under subpoena, and file a copy of that bundle with the Court and provide one copy of that bundle to each of the parties by no later than seven (7) days in advance of the trial.

7. That no later than seven (7) days prior to the commencement of the trial, the parties shall make, file and serve a Case Outline document containing:

   (a)A list of all affidavits they rely upon;

   (b)A chronology;

   (c)A summary of argument;

   (d)A Minute of the orders that each will be contending the Court should make at the end of the trial.

8. That all parties have liberty to restore this Trial Management Hearing to the list on seven (7) days’ notice for further procedural directions.

9. That leave is granted to the Independent Children’s Lawyer to cause any further subpoenas to issue from the Court as he determines necessary.

10. That should any of the parties determine prior to the commencement of the trial that they do not wish to cross-examine any of the other parties’ witnesses, they should give the other parties notice in writing of that decision as soon as they have made it.

11. That all outstanding Contravention Applications are adjourned for further mention at the conclusion of the trial listed to commence on 30 March 2020.

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 Tabano & Yabon 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 8367 of 2016

Ms Tabano

Applicant

And

Mr Yabon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Listed for determination by me is an application for the Court to issue a Recovery Order directed at Police to find and collect X, who turned 13 years of age this year.

2. On 26 July this year, Judge Purdon-Sully of the Federal Circuit Court made interim orders that X and her two younger siblings live with their mother who was also given sole parental responsibility for them. Her Honour’s Orders also included an Order that the three children have no time or communication with the father. At that time, the parenting orders proceedings were listed for trial in that Court on 11 November 2019.

3. The father has lodged an appeal against those interim Orders. That, of course, was his right, although the logic of appealing against an interim order when the matter was listed for a final hearing in November, less than four months later, is a little lost on me. In any event, the final hearing dates were subsequently vacated by her Honour and the matter was transferred to this Court, seemingly because of its complexity and the likelihood that the trial will take five days of hearing time. The father’s appeal against the interim Orders of her Honour has, the Court was told, been listed for a hearing in the Full Court in late January 2020 and given that the November trial dates were vacated, the father may now, at least, consider his decision to appeal against her Honour’s interim Orders to be a good one.

4. The circumstances that have otherwise transpired since those interim Orders were made are very troubling and are what, ultimately, have brought the matter before me today. Sometime prior to 6 September 2019, X left the mother’s care without the mother’s knowledge or consent. The mother asserts the father collected her in a planned manoeuvre in contravention of the Orders. I understand the father disputes that. Nevertheless, on 6 September 2019, Judge Tonkin of the Federal Circuit Court made Orders that X be returned to her mother’s care with a Recovery Order to issue if she was not. X was returned to the mother’s care.

5. Sometime prior to 25 September 2019, X left the mother’s care again without the mother’s knowledge or consent. The mother asserts that the father had an “associate” collect X from her school on this occasion. The father asserts it was the mother’s niece who collected X. Again though, on 25 September 2019, Judge Purdon-Sully issued a Recovery Order for X to be found by police and returned to her mother’s care. That happened.

6. Sometime prior to 1 November 2019, X left the mother’s care again without the mother’s knowledge or consent. The mother asserts that X was again taken by “associates” of the father. The father again disputes the circumstances as asserted by the mother. Nevertheless, on 1 November 2019, Judge Purdon-Sully ordered that the child be returned to the mother’s care that same day with a Recovery Order to issue if she was not returned by the end of the day. Judge Purdon-Sully also transferred the matter to this Court and vacated the trial dates that were then listed in her Court.

7. Sometime in recent weeks, X left the mother’s care again without the mother’s knowledge or consent. The mother again asserts that the father was involved, even if through “agents” or “associates”. The father told the Court this morning that the child has been staying with the mother of the “best friend” she had at Suburb H State High School when she was attending there earlier this year at her family home in Suburb H. He said he has had nothing to do with X leaving her mother’s care on the four occasions that she has done that since the July Orders were made. It would be pure speculation on my part to consider that the friend’s mother drove from Suburb H to Suburb A to collect X and to return her back to Suburb H. There is no evidence before the Court from which I could safely conclude that. The father told the Court through his affidavit evidence and his solicitor that he has had no communication with X since the July Orders prohibiting him from such contact with her. His solicitor did tell the Court this morning that the friend’s mother says she cannot force X to return to live with her mother as the existing Orders provide.

8. The mother asks the Court for the fourth time in less than five months for a Recovery Order to give force to the existing Orders providing for X to live with her siblings in the care of her mother. The father opposes that course, urging the Court to accept that X continues to “vote with her feet” not to live with her mother. He asks the Court to discharge all the existing interim Orders and to make orders that the three children live with him and spend supervised time with the mother and her partner. As an alternative, he asks that this Court simply order that just the child, X, live with him on an interim basis. He also wants the Court to list the matter as soon as possible for trial.

9. The Independent Children’s Lawyer (“the ICL”) also appeared this morning. He was represented by very experienced counsel. Counsel’s submissions were totally supportive of the mother’s application for a Recovery Order. He referred to Judge Purdon-Sully’s Reasons for Judgment published at the same time as she made the Orders on 26 July. In those Reasons, her Honour concluded:

   … that the children are at an unacceptable risk of emotional and psychological harm if they remain in the father’s care…

10. Her Honour referred to the evidence of a psychologist who had been providing counselling to the three children as support for that finding and said she was satisfied that the father “does not support the children’s relationship with the mother”.

11. The father adduced into evidence a number of documents. Those included a letter written by Ms J, a Community Youth Response Practitioner with L Family Support which is, apparently, a service provided by the L Group, an indigenous community organisation. The letter was undated and written to “To whom it may concern”. However, the father said it was written on 5 December 2019. He did not say how he came to have the letter in his possession or how he knew the date it was written.

12. In that letter, Ms J said she was, in her capacity as a Youth Worker, supporting X and had been since 15 November. She referred to certain things X had said to her, including:

    (i)That she does not want to live with her mother and step-father due to “abuse, neglect and inappropriate sexual acts she has experienced in the household”;

    (ii)That she will “kill herself if she is forced to go back to live with her mother and step-father”;

    (iii)That she wishes to be placed back with her father and step-mother;

    (iv)That she does not want to be forcibly placed back into an environment in which she feels unsafe and neglected.

13. Appropriately though, Ms J acknowledged that she may not have all the facts of the case.

14. One of the other documents that the father adduced into evidence was a seven page typed document titled “Statement by [X]”. It was very well typed, with few mistakes at all. It bore the date ‘14 November 2019’ and purported to be signed by X “solemnly and sincerely” declaring it to be true. There was nothing on the document that indicated who typed it and the father did not say in his affidavit how the document came into his possession, though his solicitor told the Court he received it from the people at the L Group.

15. It had a lot of content that raises concern. Reference was made to poor and abusive treatment of X by her mother and her step-father and to poor and abusive treatment of X’s mother by the step-father. Complaints were made about the ICL, Departmental staff and her psychologist. If they were truly the views of X they are very concerning. However, matters of complaint that are included in that document were raised before Judge Purdon-Sully’s decision. They have been the subject of complaint to the Department of Child Safety, Youth and Women (“the Department”) and to the Child Protection Investigation Unit of the Queensland Police Service.

16. The solicitor for the mother adduced into evidence at the hearing this morning, an email from a Detective Sergeant of the CPIU of the Queensland Police written to her only this morning informing her that the investigation of complaints made by X against her step-father is now finalised and the complaints found by police to be unsubstantiated. The police officer went as far as saying in respect of an alleged assault against X that “there is sufficient evidence offence [sic] did not occur”. In respect of another alleged assault, the police officer said again “there is sufficient evidence offence [sic] did not occur”.

17. The mother’s solicitor adduced a letter from the Department into evidence. It was a letter informing the mother that the Department’s investigation of the notifications of child concern reports in respect to the mother’s baby girl of her marriage to her new partner was completed and the outcome recorded as unsubstantiated. Counsel for the ICL also informed the Court that the ICL had spoken this morning to the Child Safety Officer at the Department who told him a similar letter would be sent out in the next few days in respect of the investigation of the complaints pertaining to X and her siblings.

18. This case is truly a concerning one with a very troubling history that I will not go into in these reasons. I am deeply concerned that it is reported that X says she will self-harm if she is returned to the care of her mother and step-father. Nevertheless, against the background of this case, the findings of her Honour Judge Purdon-Sully, the submissions of the ICL and the unsubstantiated findings of the Queensland Police Service and the Department of Child Safety, I consider that it would be a knee-jerk response simply to dismiss the application for a Recovery Order and to order that X live with her father. There are so many issues here that need to be considered properly in the context of a trial with cross-examination of witnesses, including expert witnesses.  

19. I intend to make orders, yet again, for X’s return to her mother’s care, but I will also be listing this matter for a trial at the end of March and the beginning of April so that the parenting dispute involving some very difficult issues can be heard and determined as quickly as my diary commitments and the need for the matter to be properly prepared by the parties can accommodate. A report is awaited from Dr M, Consultant Psychiatrist, into the state of the mental health of each of the parents. An updated Family Report will also be required from the Family Report writer, with particular attention to be paid by him to the views expressed by X and his opinions about the matters that would determine what weight might be attributed to the views she expresses.

20. It is anticipated and expected that X’s living arrangements will, once she is back at her mother’s home, remain stable for the short period of time between now and the trial. It is expected that she will be cared for appropriately in that time. It is hoped that she will not be assisted by any third person, whether an “associate”, “friend” or “relative” of the father or any other third person to again leave the mother’s home without the mother’s knowledge or consent.

21. The father maintained instructions to his solicitor that he is concerned about his daughter but that he has been honouring the Orders to have no communication or contact with his daughter. His solicitor said he could do nothing to encourage her to go back to her mother’s care and to remain there pending further investigation and trial unless the injunction restraining him from contacting her was lifted, even temporarily. I will give him the opportunity to communicate with his daughter by telephone and to encourage her to return to her mother’s care before 5.00 pm today. If she is not back at her mother’s home by then, the police will be authorised to find her and take her back to her mother’s home. It is hoped and expected that the father is able to convince her that is the best course for her to take, particularly in the light of the fact that I have determined to list the final hearing as soon as I possibly can. As I informed him during the hearing, success or failure in this respect will be significantly demonstrative of his parenting capacities in respect of this thirteen year old girl.

1. The Court was asked by the mother at the hearing of the application for the Recovery Order to discharge a previous order of Judge Tonkin that the mother ensure that the children are not left in the care of her partner unsupervised. The mother’s application was made orally and on the giving of no notice at all to the father. The mother’s solicitor told the Court that the mother is a flight attendant and is required to travel interstate and is sometimes away overnight. She told the Court that the Order of Judge Tonkin has been making things a little inconvenient for the mother as she is required to have her own mother, the maternal grandmother, travel from Suburb N to Suburb A to stay at her home with the mother’s husband to ensure that the three children are not left unsupervised in his care. She told the Court that the maternal grandmother was not “well”. All of this evidence was simply given by the solicitor from the bar table. Nothing was said about it in affidavit form.

2. Counsel for the ICL gave some support to the mother’s position in the light of the information from the Department and the Police that the allegations made against the step-father were unsubstantiated. Nevertheless, the allegations the 13 year old apparently makes in the document that is described as her “statement” are serious and cannot simply be cast aside at this point without testing at a trial. The solicitor for the father did concede to the Court that the father would find it easier to persuade X to return to the mother’s care for this limited interim period up to trial now if that injunction requiring the step-father to have supervision of his care of the children remained in place. I accept that. I will not make any change to the Orders of Judge Purdon-Sully or Judge Tonkin about that particular issue. The step-father must remain clothed around the three children and they should not be left in his unsupervised care. I expect this should assist the father in his endeavours to persuade X to return to her mother’s care before police are authorised to go and collect her and return her.

3. Accordingly, I will make an Order that permits the father to communicate with X by telephone up until 5.00 pm today with the purpose of arranging for her to be returned immediately to her mother’s care without the need for police to go and find her and return her.  If she is not back in her mother’s care by 5.00 pm today, the Recovery Order is to be executed forthwith.

4. I will also make trial directions readying the matter for trial and I will list the outstanding contravention applications each has against the other for further mention at the conclusion of the trial.

5. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 10 December 2019.

Associate: 

Date:  10 December 2019