Wafula and Batley (No 3)

[2019] FamCA 1051

FAMILY COURT OF AUSTRALIA

WAFULA & BATLEY (NO. 3) [2019] FamCA 1051

FAMILY LAW – CHILDREN – Interim – Best interests – recovery order – where there is an urgent need to secure the short-term safety of the child pending completion of the hearing and the delivery of final judgment – where a recovery order is issued directing that the child be delivered into the father’s care – where the child shall live with the father until further order– where the mother has failed to attend court – where the evidence indicates that there is a risk that the mother may act impulsively or abscond with the child – where there is a need to protect the child from the mother’s reaction in the event she is cognisant of the possibility that the child might be removed from her care or spend unsupervised time with the child – where the mother has recently become self-represented – where it is essential that the trial continue.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wafula

RESPONDENT: Ms Batley

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 9694 of 2015

DATE DELIVERED: 14 May 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 14 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bryan

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Ms Lane

SOLICITOR FOR THE RESPONDENT: Coote Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. All previous parenting orders be suspended.

2. Until further order the child X born … 2015 live with the father.

3. Paragraph 3 of the orders made 28 February 2019 remain in full force and effect.

4. Pursuant to s 67U of the Family Law Act 1975 (Cth) a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover child X born … 2015 and to deliver the said child forthwith to:

   (a)      the Childminding Room on Level 5 of the Melbourne Registry of this Court, 305 William Street Melbourne in the State of Victoria if between the hours of 9.30 am and 4.15 pm; and

   (b)    if outside of the hours 9.30 am and 4.15 pm to the father, he being the person entitled to spend time with the said child.

5. The Court forward a copy of this order to the Australian Federal Police.

IT IS FURTHER ORDERED

1. Until further order the mother and/or her agents be and are hereby restrained from attending within 500 metres of the father’s home, save for the purposes of delivering the child to the father pursuant to these orders.

2. Until further order the mother and/or her agents be and are hereby restrained from being within 500 metres of the father and/or the child.

3. All extant applications be adjourned for further hearing before Justice Macmillan at 10.00 am on 15 May 2019.

AND THE COURT NOTES THAT

A.The mother’s residential address is BB Street, Suburb CC in the State of Victoria.

B.If practicable the mother or the maternal grandmother or maternal grandfather be permitted to accompany the child with the Australian Federal Police to the Family Court of Australia or to the father’s home for the purposes of delivering the child to the father pursuant to these orders.

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 Wafula & Batley 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

FILE NUMBER: MLC 9694 of 2015

Mr Wafula

Applicant

And

Ms Batley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The final hearing of this matter commenced on 25 February 2019.  We are now on what I believe is day 27, in circumstances where the matter was listed as a four-day matter.  The hearing of this matter was made significantly more complex when on 12 February 2019 the mother indicated that she proposed amending her application to seek orders that the child spend three hours supervised time with the father once a year.  The mother didn’t put any other proposal on the basis that in the event that the Court did not accede to her application, she would be unable to cope and would take her own life.

2. Although it is day 27 of the final hearing, the hearing has been interrupted on many occasions for a variety of reasons including the mother’s health and her need for breaks during the evidence, as she said she could not cope.  The mother has frequently been late to Court and on occasions has not attended at all, including last Thursday when she went to the zoo with the child and the maternal grandmother and could not be persuaded to come to Court to continue her case.

3. The previous day, she had similarly not attended Court in the morning but had ultimately been persuaded to come to Court later that day.  When the mother attended court on 10 May 2019, she said that the reason she had gone to the zoo was because it was her last chance to spend time with the child or words to that effect. 

4. Although the mother did not attend the hearing today, she sent an email to the  Independent Children’s Lawyer (“ICL”), which he tendered setting out her reasons for not attending as follows:

   My family and I have been swamped by disgusting allegations with the apparent approval of the Court.  When I tried to defend myself from this tirade of abuse, I have been repeatedly accused of failing to show the respect that was denied to me.  The rejection of my good faith offer for unsupervised access was ridiculed by the Court who advised their clear intention to ignore my fears and concerns for X’s wellbeing.

   Due to severe financial distress (cost is over three/almost four times what we were initially advised) and the refusal of our representative to complete the trial pro bono after over $300,000 in fees, we have no legal representation, a refusal to give time to secure legal aid or pro bono support and a determination by the Court to proceed regardless with or without my attendance.  No firm will touch this case without there being an adjournment.  I cannot get a barrister.

   My family and I have done everything possible to protect X and provide a loving and safe environment which has been ridiculed by all parties and the Court.  I am not able to continue attending Court and continue to listen without the chance to have legal representation.  I am not in a position to re-examine or cross-examine at this late stage given the amount of evidence and no time given to allow me to revise.  X is safe, and I will continue to follow the Court orders despite X not being at risk with me.

5. I make a number of points with respect to that email.  Firstly,  legal representation is a privilege and not a right, and when a party is not represented either by choice or because they are unable to afford legal representation, they sometimes have to appear without legal representation.   From the Court’s point of view, it is not particularly satisfactory, and particularly so when as in this case the hearing is close to being concluded and the ongoing litigation could itself place the child at risk. In my view in this case, it was important to conclude the trial and I refused the mother’s application for an adjournment on the basis that she wished to get Legal Aid and get legal representation.

6. That being said and I did tell the mother on a number of occasions I was prepared to allow some leeway on the basis that we proceeded with the evidence of the two remaining witnesses, Dr C and the family consultant and in circumstances where  judgment would not be delivered for some time the mother would be in a position to either pursue legal representation by way of an application for Legal Aid  or in the event that  was not successful, to reconsider any questions she failed to ask during cross-examination and whether she wanted to further examine those witnesses.  I made it clear to the mother that I would consider an application for the case to be reopened on that basis.

7. The mother had the weekend to prepare for re-examination of her father.  She also had the opportunity to prepare questions for Dr C, and as he was her witness, for re-examination. I also told the mother that I would allow her some leeway in relation to the questions she asked both Dr C and the family consultant. I also suggested to the mother that the maternal grandfather, who is a qualified lawyer, be present with her in Court to assist her as a McKenzie friend, however the maternal grandfather did not attend with the mother on Monday, and she said she had not prepared any questions.

8. I also note what the Court was told by counsel for the mother when she sought leave to withdraw, was that the mother had withdrawn her instructions. In addition, I was also told by the solicitors instructed by the mother that they had been trying to contact the mother to get instructions, but that she was not returning their calls, it was on that basis that I also released them from further attendance.  It was certainly not put to me, as referred to in the mother’s email, that they had refused to act for her on the basis that she would not pay their fees, and certainly had they done so that might have been a somewhat different situation.

9. At this point of the trial I have heard the majority of the evidence.  I also have the family consultant’s report which raises various of the issues that have played a part in this hearing.  I’ve heard evidence from the father and he has been cross-examined, lengthy evidence from the mother and she has been cross-examined at length, evidence from the maternal grandfather and also the evidence of the mother’s psychiatrist Dr C.  Dr C has been treating the mother since her early teens, and although he has not completed his evidence I found that evidence most helpful. It is fair to say that the emphasis of his evidence today has been on the issues that arise as a result of the mother’s decision not to attend the hearing today.

10. The father seeks a recovery order requiring the child to be delivered to the child minding room in the counselling section of this registry.  In the alternative, if the Court facilities are closed, that the child be delivered into the father’s care until further order, his application is supported by the ICL.  When I raised with counsel for the father my concerns about the issue of a recovery order, which involves the police attending to collect the child without first giving the mother the opportunity to deliver the child to the Court, it was her submission that her client’s concern was that an order requiring the mother to deliver the child to the counselling section might precipitate the very harm that it was intended to prevent.  There is some force in that submission.

11. The mother was diagnosed with borderline personality disorder in her adolescence.  Although Dr C in his report dated January 2019 opined that the mother didn’t currently meet the criteria for a borderline personality disorder, he did describe in some detail and has also given oral evidence that the mother’s personality style is “characterised by strong personal views on right and wrong which when formed could be enduring and consuming”.  Dr C, however, did acknowledge during cross-examination that given the description of the mother’s behaviour during the conduct of this case generally and particularly as described to him in cross-examination, that there appeared to be the possibility of some regression.

12. He also conceded in cross-examination that he had concerns about how the mother might react to an order that the child spend unsupervised time with the father, let alone an order that the child be removed from her care.  I take from his evidence that until recently the mother had not been able or willing to acknowledge or appreciate the possibility of that outcome. However, the mother, having spoken to Dr C about the possibility of allowing the child to spend unsupervised time with the father and acknowledging at least to some extent that she might lose the child, suggests that the mother does now appreciate that  is a possibility.  This is consistent with her own statement about why she took the child to the zoo.

13. That of itself raises various concerns.  Dr C’s evidence was that he had challenged the mother about the possibility of harming the child that he did not believe she would do so, but that similarly, he could not rule it out.  He also raised the possibility of the mother perhaps behaving impulsively and absconding with the child as a possible risk.  There is also the risk to the child of the impact of the mother’s reaction upon him in the event that she is cognisant of the possibility that she may lose his care or that the father may be spending unsupervised time with him.

14. The father, on the other hand, was a good witness.  He appeared to be insightful as to the possible impact of the orders he seeks upon the child and how the child might cope.  It is also in my view, significant and consistent with the evidence that I have heard, and although I don’t propose to go into all of the details of the allegations made by the mother, that the family report writer’s view was that he did not appear to present a risk to the child. I am satisfied that in the short term that the child would be safely cared for in the father’s care in the interim.

15. To make a recovery order without first allowing the mother to deliver the child to the Court is an unusual order to make. Although it is not unheard of, generally speaking, the Court will try to minimise the impact upon the child and being collected by the police from the primary carer is almost inevitably going to have some impact on this child. However, I must weigh up the risk to the child if I don’t make that order.  Because of my concerns about the mother I have already made orders that the child not be left unattended with the mother.  Whilst the mother assures me that they will abide by that order and the maternal grandfather said they were abiding by the order; the maternal grandfather and to some extent when I heard brief evidence from the maternal grandmother prior to making that order, in my view minimised the risks and as referred to by Dr C, minimised the extent of the mother’s vulnerabilities and her mental health issues.

16. In these circumstances, I have reservations about whether the maternal grandparents appreciate the significance of the possible risk or that they will abide by that order.  In the short term the Court is left with little option if it is to secure the child’s safety in the short term.  These are brief reasons, and I will hear from the mother if she chooses to attend Court and present her case, but in the short term, the welfare of this child and in particular, his safety in the event that the mother is facing the reality or sees herself as facing the reality of losing his care is the priority and I propose to make the order the father seeks.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 14 May 2019.

Associate: 

Date:  20 March 2020