Wagner and Vance
[2007] FMCAfam 1099
•13 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAGNER & VANCE | [2007] FMCAfam 1099 |
| FAMILY LAW – Urgent orders – restraining orders – Airport Watch List – recovery order – risk to child. |
| Applicant: | MS WAGNER |
| Respondent: | MR VANCE |
| File number: | MLC 1296 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 13 December 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 13 December 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr J. Wertheimer |
| Solicitor for the Applicant: | Melton Law Offices |
ORDERS
That until further order the child M born in September 2005 live with the mother.
The issue of time spent by the said child with the father is reserved.
That leave is granted to the applicant to make an oral ex parte application for the following orders and all times are abridged to enable those orders to be made.
That MR VANCE is restrained from removing the child M born in September 2005 from the Commonwealth of Australia without the written consent of the other party, or order of the Court.
That the Court requests that the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child's name on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the child from Australia in breach of these orders.
That the Marshal of the Family Court of Australia and all officers of the Australian Federal Police and the Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain MR VANCE from removing the said child from the Commonwealth of Australia.
That until further order, MR VANCE be restrained from assaulting, molesting, harassing, stalking, abusing or otherwise interfering with MS WAGNER.
That until further order MR VANCE be restrained from entering upon or loitering near the premises of the applicant situate at and known as A Street, M, and/or any premises occupied by the applicant or the said child, including though not limited to the A Learning Centre, situated at and known as C Ave, M, in the state of Victoria.
That the applicant’s solicitors serve a sealed copy of these orders upon the respondent within 7 days of the date of this order.
That all extant applications be otherwise listed for hearing before this Court on 29 January 2008 at 9.45 am.
That costs are reserved.
IT IS NOTED that publication of this judgment under the pseudonym Wagner & Vance is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 1296 of 2007
| MS WAGNER |
Applicant
And
| MR VANCE |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The application before the court is an application filed by Ms Wagner (the Applicant Mother) on 10 December 2007. The application seeks a recovery order and significantly an order that the Applicant's child, M, born in September 2005 (the child) live with the applicant mother. The Respondent to that application is the father of the child, namely, Mr Vance.
It is noted that another application had been filed earlier with the court by the Applicant Mother on 28 November 2007 which has a hearing date fixed for 29 January 2008. That application seeks various orders in relation to the child.
It is evident from the affidavit material and oral evidence from the Applicant Mother that recent events have overtaken what might otherwise have been regarded as a conventional children's application, hence as a matter of urgency the Applicant Mother had filed an application on 10 December 2007, seeking, as I have indicated, an order that the child live with the mother and further, a recovery order.
In support of that application which is before the court, the Applicant Mother relied upon an affidavit sworn by her on 10 December 2007. The application was scheduled to be heard by this court on 12 December 2007 at 9.45 am. On that day, there was an appearance by the Applicant Mother, represented by her lawyer. The Respondent Father appeared on his own behalf, self‑represented.
When the court considered the material then on the file, it was noted that although there was an agreement entered into between the parties for supervised time to be spent by the child in the presence of the paternal grandmother with the Respondent Father, it was clear that what had occurred was what is described as an overholding and that the child had not been returned to the Applicant Mother. It is noted that the child is two years of age.
Upon hearing the matter on 12 December 2007 and upon considering the affidavit in support sworn by the Applicant Mother, the court decided to make the following interim orders:
“1.The Respondent Father deliver the child M born in September 2005 to the Child Minding Service situated on the 5th floor, 305 William Street, Melbourne no later than 9.30 am on Thursday, 13 December 2007.
2.In the event that the Respondent Father fails to comply with Order 1 hereof that a recovery order may issue forthwith.
3.The application otherwise be adjourned to 9.45 am on 13 December 2007.
4.Costs reserved.”
I note in passing that the order has a typographical error, no doubt based upon errors in the application in relation to the spelling of the name of the child. I will direct that a varied order be provided which corrects that error, namely substituting the word “V” for the word “V” wherever it appears.
The Respondent Father, as I have indicated, was present when those orders were made by the court. It was made perfectly clear to the Respondent Father that he was obliged to deliver the child in accordance with those orders to the Child Minding Centre this day. As it happened, the court has been advised that the Respondent Father contacted the Applicant Mother yesterday and made arrangements for the child to be collected by the Applicant Mother and I understand that that occurred at or about 8.30 pm last evening. Hence, technically, the Respondent Father has not complied with the order which the court made yesterday but in my view, not a great deal turns upon that non-compliance as the practical effect of the order has been achieved, namely the delivery of the child to the Applicant Mother.
The Respondent Father did not appear in court this day. It is evident from the evidence which I have heard from the Applicant Mother this day that other incidents have occurred which satisfy me that the matter should now be treated as urgent and it is also clear to me on the evidence that there is a significant and discernible risk to the welfare of the Applicant Mother and the child if the court does not proceed to make certain restraining orders and airport watch orders in relation to the Respondent Father. So much is evident from the evidence on oath that I have heard this day from the Applicant Mother.
It is significant to record that evidence. The Applicant Mother gave evidence before this court on oath that at about 3 pm on 12 December 2007, she telephoned the Respondent Father on a mobile telephone number. The gist of the conversation which occurred thereafter appears to be the following. The Applicant Mother said, "Could I please speak to M?" The Respondent Father said, "No, she's not with me. Have you ever been sexually assaulted by your father?" The Applicant Mother gave evidence that during the course of this discussion which lasted for a period of approximately 10 minutes, the Respondent Father appeared to be aggressive and, in her word, heated. He apparently repeated the accusations which the Applicant Mother strongly denies. It is perhaps also noteworthy that the Applicant's father in fact passed away on 18 September 2006.
The conversation which occurred at or about 3 pm on 12 December 2007 continued with the following:
The Applicant Mother said something like, "M is in a very safe and stable environment and you know that."
The Respondent Father said something like, "To my knowledge, people in the community have approached me and said you and your sister have been sexually assaulted by your father."
The Applicant Mother said something like, "You know that's not correct."
The conversation, without repeating the further details, continued in that vein, ultimately leading to the Applicant Mother saying something like, "If my father was such a bad person, why did you speak at his funeral and why were you happy to leave the child in the care of my mother and father whilst we both worked?"
At about 6 pm on the same day, that is 12 December, the Respondent Father telephoned the Applicant Mother on her mobile phone whilst the Applicant Mother was at work and there was a conversation described by the Applicant Mother as a conversation in a similar vein to the one recited earlier in this judgment. The Applicant Mother gave evidence that she asked to speak to the child as she could hear the child's voice in the background. The Applicant Mother further said that the allegations that were being put were not true and that she wanted the child returned. She further told the Respondent Father something like, "I'm not happy with the stress that you are causing to me and my family." That telephone conversation was terminated by the Applicant Mother.
The Applicant Mother gave evidence that at about 6.10 pm, the Respondent Father again telephoned her on her mobile phone and the following conversation occurred,
The Respondent Father said something like, "I cannot find legal advice or representation. You must have employed every solicitor in M as no-one will represent me and what I'm going to do is to go in in the morning and represent myself and offer M to Social Services." The Applicant Mother said something like, "Social Services will not be interested in a child which is currently in a stable environment." It is not necessary to recite any further detail of that conversation.
At about 8.30 pm, the Applicant Mother received a text message on her mobile phone from the Respondent Father. In her evidence, I permitted the Applicant Mother to access her mobile phone and to read directly from the message which has remained stored on her mobile phone. The message reads:
“You may pick up M at 8.30 pm provided you incur your own court costs. Please come alone and do not attempt to discuss anything with me but refer to my legal rep. Note I have taken M to the DOCS on Sunday and again today, documented. Please confirm if you are coming or not.”
The Applicant Mother gave evidence that she responded to that message with her own text message which simply stated:
“I'll be there.”
The Applicant Mother gave evidence that she then, in the company of her brother, Mr W, had driven to the Respondent Father's address at
M South. The Applicant Mother gave evidence that prior to her departure for that journey, she had telephoned a friend who was a police officer and requested if that friend would attend in the vicinity of the Respondent Father's premises to coincide with the arrival of the Applicant Mother and her brother. This apparently occurred. When the Applicant Mother arrived at the premises, her brother left her vehicle and sat in the vehicle of the friend some short distance away from the Respondent Father's premises. The Respondent Father entered the outside of the premises, having observed that the Respondent Father and the child were waiting outside. The Applicant Mother then collected the child who had run to her and left the vicinity.
Recorded on the Applicant Mother’s mobile phone is the receipt of a mobile telephone call from the Respondent Father at 8.51 pm on 12 December 2007. By this time, the Applicant Mother had arrived at her home. The Applicant Mother gave evidence that in that conversation, the Respondent Father said something like, "I hope you're happy and during the next access visit or when I see her next, I will take her and you will never see her again." The Applicant Mother terminated that call.
She observes that the tone of the Respondent Father during the course of that telephone call was aggressive, he sounded very agitated and was yelling. After the call was terminated, the Applicant Mother gave evidence that she turned her mobile phone off. She told others in or about the premises to come inside and she locked the door. At that time, those present included the Applicant's mother, her younger sister S, her brother Mr W and his wife B. They all went inside and locked the door.
The Applicant Mother adopted in her evidence the affidavits previously sworn by her, not only in this urgent application, that is, the affidavit of 10 December 2007 but I took her to adopt an earlier affidavit of 28 November 2007. It is clear in the affidavit material that after separation had occurred between these parties on or about 14 September 2007, they did indeed reach some form of agreement for supervised contact to take place, that is, supervised time to be spent with the Respondent Father to take place with the child and that that did occur. However, it is clear that when it occurred on Sunday, 9 December 2007, according to the most recent affidavit of the Applicant Mother, after taking the child to the paternal grandparents' home, that the child was not thereafter returned.
It is perhaps relevant to recite the following paragraphs from the affidavit of the Applicant Mother sworn 10 December 2007 where she deposes:
“6.I state that at all times I have been the principle carer of M and that M has lived me from separation 14 day of September 2007.
7.That on Sunday the 9 day of December 2007 I took M to her paternal grandparent’s home at 10.30 am where I spoke to Mrs V, M’s grandmother and again emphasised that due to me considerable concerns as to M’s safety due to Mr Vance’s behaviour and volatile conduct and my concerns as to his mental state, that time spent with Mr Vance would continue to be supervised by her or a family member and that M was not to be left alone with the Respondent father.
8.At approximately 1.47 pm I received a call on my mobile telephone from the Respondent father stating that he had enforced his rights pursuant to his notice of the
16 November 2007and would not be returning until Sunday the 16 day of December 2007. Now produced and shown to me and marked with the letters “KWA5” is a copy of the Notice dated the 16 day of December 2007 received from my solicitors by the Respondent father.
9.That I was extremely distressed by this as the Respondent fathers has little knowledge of the care of M and from my conversation with the Respondent father I understand that he had not taken any clothes or medication with him and in this regard I state that M is taking antibiotic for a chest infection and that without continued used of the prescribed antibiotic her health is at risk.
10.That I immediately phoned Mrs V. M’s grandmother and she told me that she could not stop Mr Vance from taking M and whilst she had urged him not to take M he had taken her and refused to divulge their destination.
11.I again contacted the Respondent father on his mobile telephone and told him I was going to the police unless he returned M immediately to me which the Respondent father refused stating that I would be allowed supervised contact with M from Sunday 16 day of December 2007.”
Those paragraphs which I have incorporated in this judgment provide some insight into the circumstances and indeed the background to the urgency of this matter. It is also noteworthy that in her evidence, the Applicant Mother has indicated that at one time, she had observed certain medication, the name of which she can not now recall, but which she does recall determining through a ‘Google’ search is a medication used and/or received by persons suffering schizophrenia. She gave evidence that the Respondent Father had been known by her in the past to have used a prohibited substance, namely marijuana. She further gave evidence that she understood from a conversation with a relative of the Respondent Father that the Respondent Father is not currently taking medication.
In circumstances of this kind, where allegations are made concerning the medical condition of a party, it is very difficult for the court to reach anything other than a prima facie conclusion for the purpose of making interim orders. The conclusion I reach at present on the material before me is that the Respondent Father by his conduct, has acted in an aggressive, threatening manner, has evinced an intention to take the child and not to return the child to the Applicant Mother. Further, I conclude on the material before me that the Respondent Father is a person who suffers from a medical condition more likely than not to be schizophrenia.
A combination of the medical condition and the erratic, aggressive behaviour of the Respondent Father leads me to conclude that in this matter, it is appropriate that I should now grant leave to the Applicant Mother to make an urgent oral application for orders beyond the orders which are requested in an application filed 12 December 2007. It is clear to me on the material currently before the court that there is a real risk, both to the Applicant Mother and the child, of harm in the immediate future.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 13 December 2007
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