Vale and Vale (No 4)

[2016] FamCA 895

FAMILY COURT OF AUSTRALIA

VALE & VALE (NO 4) [2016] FamCA 895

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where mother’s oral application to adjourn the hearing of the father’s recovery order is dismissed – where the court was not persuaded that the interests of justice weighed in favour of an adjournment

FAMILY LAW – CHILDREN – Recovery order – where recovery order issued – where recovery order remains in force for twelve months – where it is in the child’s best interests to return into the father’s care

Family Law Act 1975 (Cth) ss 60CC, 67U, 67V

Vale & Vale [2016] FamCA 626

APPLICANT: Mr Vale

RESPONDENT:	Ms Vale
FILE NUMBER:	SYC	7455	of		2012

DATE DELIVERED: 25 October 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 20 October 2016

REPRESENTATION

SOLICITORS FOR THE APPLICANT: G & D Lawyers

THE RESPONDENT: In person

Orders

1. The Respondent mother’s oral application to adjourn the hearing of the father’s application for a recovery order is dismissed.

2. A Recovery Order 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, save that that order lie in chambers until 4:00pm Friday 21 October 2016.

3. Such persons are authorised and directed to find and recover the child, B (a female) born … 2001 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/children may be found.

4. The child is to be delivered to the Applicant, Mr Vale, at an address provided by his solicitor in writing or as agreed to between the person executing the Recovery Order and the Applicant.

5. The Recovery order remains in force for a period of twelve months.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vale & Vale 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: SYC7455/2012

Mr Vale

Applicant

And

Ms Vale

Respondent

REASONS FOR JUDGMENT

introduction  

1. On 20 October 2016, I made a Recovery Order in relation to B (born in 2001 and hence presently 15 years of age) (“the child”).  Earlier on that day, I had dismissed an application by Ms Vale (“the mother”) to adjourn the hearing of the application for a Recovery Order, which was brought by Mr Vale (“the father”).

2. These are my reasons for refusing to grant the adjournment, and for making the recovery order.

BACKGROUND FACTS

1. The parties have two children: The oldest is the child the subject of this application; the other child is C, who is presently 12 years of age, and lives with the father. 

2. In Vale & Vale [2016] FamCA 626 at [24]-[32], Hogan J conveniently provided a brief summary of relevant historical factual matters as follows, which I gratefully adopt:

   The parents married in 2000. Whilst there is a dispute about when they separated on a final basis, it appears they physically separated on a final basis in or about September 2012.

   At some time in late 2012, the mother relocated with the children to northern New South Wales.

   Proceedings were initially commenced in late 2012 by the father.

   In February 2013, final orders were made by consent. These Orders provided that

   a)the parents have equal shared parental responsibility for the children; and

   b)the mother relocate with the children to the [J Town] area from Sydney; and

   c)          the children spend with their father during school holidays.

   There is dispute as to what time the children spent with their father after this.

   On 18 September 2014, a Recovery Order was issued in respect of the children.

   On 3 October 2014, the mother attempted to remove the children from the Commonwealth of Australia. It seems that, having been stopped at the Sydney Airport, she fled with the children, leaving behind various belongings.

   Thereafter, she and the children were uncontactable until July 2015.

   On 23 July 2015, the Australian Federal Police recovered the children and placed them in their father’s care. As noted, they have not spent time or communicated with their mother since. 

3. The parenting dispute between the parties is listed for trial before Hogan J commencing 14 November 2016.  Although the father has conformed with the relevant directions for the preparation of material for file, the mother has not.

4. In his affidavit filed 19 October 2016 in support of the Recovery Application, the father detailed recent events in relation to the child.  It appears as though she left his care on 11 October 2016, and since then it is likely she has been residing with the maternal uncle, Mr K, in the Newcastle area.  Certainly in the hearing before me, the mother confirmed that the child was then living with him.

5. Prior to leaving the father’s care, on 7 October 2016 the child wrote a letter to an organisation called “L Group.”  In it she set out that she was “extremely unhappy living with my father and I fear for my safety.”  She also listed a number of complaints she had in relation to her father, including allegedly controlling and manipulative behaviour, paranoia, poor housekeeping and regular denigration of the mother.  A central theme to that letter is that she believes that it is the father who has been keeping her away from her mother.

6. It appears likely that the child has not attended school since she left her father’s home on 11 October.  Other than the fact that she is with the maternal uncle, her current living arrangements are not the subject of any evidence before me.

THE APPLICATION FOR AN ADJOURNMENT

1. The mother sought an order that the hearing of the father’s application be adjourned for seven days.  She said that she wanted to put on material to resist the application, and needed that time in order to do so.  The father opposed any such adjournment. 

2. He did so on several bases.  The first was that had the mother complied with the various trial directions, she would have had current material before the court.  In a sense therefore, she was trying to gain an advantage by her own default.  Second, he said that the appropriate parenting arrangements for the child were the subject of the determination by the Principal Registrar on 11 February 2016, which orders were not substantially changed by Hogan J who conducted a review of them order in her reasons of 5 August 2016.  Thirdly, he said that to the extent that the mother may wish to seek a variation to the present interim orders in relation to the child, dealing with the Recovery Order application would not preclude her from doing so thereafter.  She could still seek to bring that application when she had the necessary materials to hand.  Of course whether a court would deal with such an application given the looming trial, is another matter.

3. The Independent Children's Lawyer supported the position of the father.

4. I am not persuaded that the mother suffers any undue prejudice by virtue of not affording her the opportunity to put on material to resist the father’s application.  I accept that, had she complied with the trial directions, up to date material would be in front of me, and further, if there are documents which she wishes to tender during the course of the hearing, she may seek to do so on an individual, document by document, basis.  Moreover, she may make such submissions against the recovery orders as she sees fit. 

5. I was therefore not persuaded that the interests of justice weighed in favour of the grant of an adjournment.

RECOVERY ORDER

1. The power to make a recovery order is under s 67U of the Family Law Act.  By s 67V, in deciding whether to make a Recovery Order in relation to a child, the best interests of the child is the paramount consideration.  Section 60CC of the Act provides how a court determines what is in a child’s best interests.  However inevitably in proceedings such as this, the court is not able to make detailed findings of fact where they are controversial.

2. Uncontroversial facts here are as follows:

   ·Notwithstanding the February 2013 final consent orders, the mother withheld the children and concealed their whereabouts from the father between September 2014 and July 2015, when police recovered the children and placed them in the father’s care;

   ·Since that time, at least on the evidence before me, neither child has spent time nor communicated with the mother;

   ·On 30 July 2015 the Principal Registrar made orders that the children live with the father and spend supervised time with the mother, which orders were varied on 11 February 2016.  In whatever form, the mother has not availed herself of the opportunity to spend time with the children which those orders afforded;

   ·Both children are presently enrolled in schools near the father’s home;

   ·On 11 October 2016 the child, without prior notice to the father, ceased to live with him, and was at the time of the hearing before me living with the maternal uncle.

3. The mother says that the child does not have a good relationship with her father, and is fearful of him, given alleged past historical violence perpetrated by the father which she has witnessed.  Whilst accepting that the circumstances under which the child came to live with him in July 2015 presented challenges, the father’s material and the most recent Family Report, in substance, say that he has a good enough relationship with his daughter, who is progressing adequately under his care.  I cannot make findings in relation to this matter, save that I note that in the child’s letter to L Group, she does not appear to have any significant complaints as to the quality of actual care that the father affords her, save that she says that the house is untidy and she sometimes has to eat food that is past its use by date.

4. The mother says that child wishes to have a relationship with her, and would benefit from that.  The father does not dispute that, save that he says that the circumstances of the child’s reintroduction to the mother need careful management.  At paragraphs 49 to 55 of her reasons of 5 August 2016, Hogan J traversed the evidence which suggested that the mother’s time with the children, and her communication with them, needed to be supervised, so as it did not undermine their relationship with their father and current living arrangements.  Her Honour acted in accordance with those recommendations.  Neither party has appealed from that decision.  I am satisfied, particularly given the mother’s history of withholding the children from the father and concealing their location, that there is a real risk that she might be content to again terminate the children’s relationship with their father.

5. The mother says that the father presents a risk of harm from family violence to the children; the father denies that.  I am not able to ascertain the level of such risk as the father may pose, save that I note that in the child’s letter of 7 October 2016, while she expresses fear of the father, who she says gets angry if she misbehaves, there is otherwise nothing which would suggest a risk of physical or indeed emotional, harm to the child from such behaviour since July 2015.

6. In her letter of 7 October 2016 the child expresses a wish to not live with the father and to re-establish a relationship with her mother.  The difficulty is that the court does not know the circumstances as to how the child came to be communicating with L Group, or what communication she may have had with maternal family members leading up to that.  In those circumstances, I do not give her expressed views in that letter much weight.

7. I have already noted the evidence that the father has a good enough relationship with the child, although the child has some complaints in relation to it.  The child has in the past had a very close relationship with her mother, and there is no reason to doubt that she is not still yearning that.

8. Leaving the child in the maternal uncle’s care would necessarily mean that she would not be attending her present school, and would not be spending time or communicating with her sibling.

9. The capacity of both of the parties to provide for the child’s needs is put in issue by the other.

10. In the past the mother has demonstrated a poor attitude to the responsibilities of parenthood by withholding and concealing the location of the children from the father.

11. I have adverted to the allegations of family violence, and noted that I cannot resolve that issue.

12. In my view the following points weigh strongly in favour of the Recovery Order being made.  They are:

    ·The child has been living with the father since July 2015;

    ·On the material before me, the child has neither spent time nor communicated with the mother since that time;

    ·There is ample reason to believe that the maternal uncle is some form of conduit to the child either spending time, or communicating, with the mother, however both the Principal Registrar and Hogan J have been persuaded that the circumstances of the mother’s re-introduction to the child needs strict supervision, which opportunity the mother has not availed herself of;

    ·The mother has a history of absconding with the children, which evidences complete disregard of court orders.  If she were to abscond again, it is likely to affect harm to the child;

    ·There is a trial looming on 14 November 2016, and all of the parties’ controversies can be resolved in the course of that;

    ·It appears as though the child has had a good enough relationship with the father since she returned to his care in July 2015;

    ·The child would appear not to be presently in school, and given her age and the time of year, I am satisfied that her attending school at this time is important;

    ·It appears as though she is no longer spending time or communicating with her sibling.

13. I am well satisfied that requiring the child to return into the father’s care is presently in her best interests.  Such concerns as the mother may have in relation to the quality of care which he affords, and the risks which he may pose to her whilst she is living with him, can be adequately investigated in the forthcoming trial.

14. For those reasons I made the Recovery Order on 20 October 2016.  However in order to give the mother and Mr K the opportunity to not have the child forced back into the father’s care by police, I directed that the Recovery Order lie in chambers until 4:00pm on 21 October 2016, but then issue.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 October 2016.

Associate: 

Date: 25 October 2016