WATTS & LORRECK

[2016] FamCA 1170

FAMILY COURT OF AUSTRALIA

WATTS & LORRECK [2016] FamCA 1170

FAMILY LAW – APPLICATION FOR RECOVERY ORDER - Where children removed from the mother by the father - Where the children have expressed the view that they wish to live with the father - Where there is evidence that the father is undermining the children’s relationship with the mother -Where the views of the children are not expressed clearly and consistently enough to bear weight - Where the recovery order is in the best interests of the children as per s 60CC

Family Law Act 1975 (Cth) – s 60CC

Rice v Asplund (1979) FCL 90-725

APPLICANT: Ms Lorreck

RESPONDENT: Mr Watts

FILE NUMBER: CAC 23 of 2009

DATE DELIVERED: 11 August 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Gill J

HEARING DATE: 11 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr L Dickson

The Orders

1. The father will deliver the children to the mother at 9.00 am on Friday, 12 August 2016 at the C Store, Canberra City.

2. Until further order, the mother will make the children available for electronic communication with the father each day between 7.30 pm and 8.30 pm Queensland time.

3. I dismiss the orders sought by the father other than orders 2, 3 and 4 which are adjourned for consideration on 9 September 2016 at 3.15pm.

4. I dismiss the mother’s application for a recovery order.

5. Leave is granted to the mother to appear by telephone on the basis that arrangements are made with the Registry 7 days before the adjourned date and on the basis that her solicitor appears in person.

6. In the event of non-compliance with order 1, leave is granted to the mother to list the matter immediately without notice to the father.

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 Watts & Lorreck 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 PARRAMATTA

FILE NUMBER: CAC 23 of 2009

Ms Lorreck

Applicant

And

Mr Watts

Respondent

REASONS FOR JUDGMENT

1. I am dealing today primarily with the application for a recovery order and dealing with consequential orders which may need to be made if the order is not granted in order to deal with care arrangements for the children under such circumstances.

2. The application for a recovery order comes in the context of an application by the father for a change to the final orders that currently govern the children’s living arrangements and to a change in the arrangements for the exercise of parental responsibility.  The application also comes in the context of final orders having been made.

3. The mother correctly identifies that there may be a Rice v Asplund issue in relation to these proceedings.[1]  At this point, I decline to determine such a matter given the circumscribed nature of the proceedings in front of me, the limited nature of the evidence and because it appears to me that it is likely that there will be views expressed by a 14-year old child which are likely to be of significance in determining whether or not there is a sufficient change of circumstances to permit the litigation to continue.

   [1] Rice v Asplund (1979) FCL 90-725.

4. The key issues in determining the matter today are identified as follows.  The first is risk said to be current for the boys in each of the homes in which they might live, being the mother’s home and the father’s home.  Secondly, views expressed by the boys.  Thirdly, the nature of the relationships between the boys and their mother, the boys and their father, the boys in the father’s household, and the boys and the mother’s relatives in Queensland.  Fourthly, the effects of any orders that might be made. 

5. In examining these factual issues against the s 60CC considerations, I note that the primary considerations are particularly engaged, that is, the primary considerations that relate to the protection of the boys and also to cultivating a meaningful relationship between the boys and each of their parents. Of the additional considerations under s 60CC, I particularly pay attention to:

   a)(3)(a), the views of the boys; 

   b)(3)(b), the nature of the relationship between the boys and their parents;

   c)(3)(d), the likely effect of a change in circumstances;

   d)(3)(e), the difficulty of spending time with each of the parents depending on the orders that will be made, noting that, whichever orders are made, there is a significant difficulty for one of the parents to spend time with the boys, and;

   e)(3)(f), issues in relation to family violence.

6. These matters receive limited consideration given the circumscribed nature of the proceedings and I primarily focus my attention on the four factual matters that I have identified as key issues, that being the risk to the boys in each home, the boys’ views, the nature of the relationships, and the effects of the orders. 

7. The mother, in support of her application, asserts that there is no risk in her home to the boys.  In contrast, the father, in support of his application, asserts that there is a risk for the boys with the mother.  He describes the boys’ experience in B Town as being traumatic and describes a number of incidents which involve a manhandling of the boys on the part of the mother, physical chastisement of the boys and aggression in relation to the boys on the part of the mother. 

8. These are, to some extent, disputed matters.  Some of the matters that the father has identified are significantly dated and I find that I can place little weight on them in the context of the current application.  The balance of the matters are at or around the borders of parental discipline or non-abusive family conflict.  I am not prepared, at this stage, to find a risk for the boys if living with their mother on the material that is before me.

9. The mother, for her part, asserted that the boys faced a risk if with their father.  That was clarified to mean a risk to their relationship with their mother and a risk in relation to implementation of the orders.  I do not perceive the mother to be asserting that the boys are at a physical risk if in the care of their father.  The father, likewise, asserts that there is another risk in relation to the boys being with their mother and that is a risk to relationships that she poses, particularly a risk to relationships with him, with his new immediate family and with his extended family. 

10. He describes a gross interference with the electronic communication that he has with the boys and gives a limited number of examples to support that.  On the contrary, the mother says that she does provide time for the father to have electronic communication with the boys, but that he is unreasonable in relation to his attempts to exercise that time.  I note that the orders that govern that portion of the time that the boys spend with the father are voiced in terms of what it is reasonable.  On this application, on the examples that have been provided, I place little significance on the interference with the electronic communication.

11. At the same time that it is identified that there is interference on the part of the mother, it is also clear that the father’s actions have interfered with her relationship with the boys.  The boys have been separated from her in the face of orders and even when she travelled to the ACT to see the boys, no provision was made by the father for her to see the boys except on one short occasion until I made orders on 1 August providing for the boys to spend time with the mother.  This may be explicable by the concern that the father voiced that the mother might simply take the boys back to B Town, and so I place some limited weight on his failure to provide for the mother to spend time with the boys after she arrived here.

12. What I find of particular significance in determining the application before me are the characteristics of the relationship with each of the parents that have been described in the proceedings.  For the father, despite whatever interference the mother might have caused, it appears on his case, and it is not argued against it on the mother’s case, that he enjoys a positive and close relationship with each of the boys.  However, for the mother, at least while the boys have been in the care of the father, it appears that the meaningfulness of her relationship with the boys is at some risk. 

13. He describes that she has had positive face-to-face time with the boys while in Canberra.  However, the Facebook posts, the nature of the emails, the nature of the texts involving the mother and the boys, the reporting by the boys of adverse comments to them by the father about the mother, and the fact that it now seems to be the case that at least one of the boys is referring to the mother by her first name, lead me to conclude that while they are with the father in the short term, the mother’s relationship with the boys is at some risk.  I find this a compelling aspect of the case.

14. As to the views of the boys, this is a matter of great significance.  It is a matter of great significance because X is now 14 years old, and so, in particular, his views must be assessed very carefully in determining this matter.  It is the views of the boys that I regard as the strongest aspect of the father’s case.  Both of the boys expressed a desire to live with the father.  This has been expressed in the interview that they have had with a Family Consultant, although the father also gives examples of the boys’ expression of these things and it seems also that they have expressed the same to the mother.

15. However, in considering the expression of views by the boys to the Family Consultant, the reasoning revealed no maturity of thought on the part of the boys or comprehension of the personal implications for them and for their parents.  X expressed he did not wish to talk to his mother at the present time.  He was concerned that the mother might remove him to B Town.  He was concerned also that the mother might prevent him spending time with the father. 

16. As I understand the evidence before me, there is no evidence that the mother has prevented face-to-face time between the father and the boys.  X also expressed to the family reporter that he would want to run away. That is short of an intention to run away.  X said that he still wanted school holiday, and Skype and other such time with the mother.  That expression sits uncomfortably with the hostility that he seemed to express in relation to the mother.  It reveals that there is a relationship still in place between X and the mother, but, at present, that appears to be being degraded.  I have serious doubts that the views represent a genuine, understood, and reflective of maturity position on the part of the boys. 

17. What was concerning in relation to the expression of the views is that the boys were assessed as anxious and sad, and expressed the views in a distressed and urgent manner.  The father correctly pointed out that this assessment of views is in a vacuum in the sense that the Family Consultant did not have a broad picture and, in forming her views in relation to the boys, did not express it in the context of the litigation that has taken place between the parties.  While she examined the views of the boys in a vacuum, I infer from the material in front of me that there is a hostile inter-parental relationship. 

18. The distress and urgency expressed by the boys to the Family Consultant was not matched by their expression of a basis, or reasons, or reasoning.  I cannot say whether or not the anxiety and sadness, and distress and urgency is because of the prospect of spending time with their mother again or because of their current circumstances in being removed from their mother. 

19. Going then to the effects of the orders as sought by each of the parties, the father’s application would result in a change of residence, a change of primary carer, a change of schools mid-year in circumstances where there seems to be no real criticism of the schooling, a change in environment, a change in relationships generally, and I note that the boys are not presently at school.  The orders would also seem to necessitate some form of change in parental responsibility. 

20. The orders that he seeks would see the mother having a limited relationship with the boys, given she resides in B Town, and they would then be living in the Canberra region.  The application on the part of the mother does not involve these changes for the boys, but, as the father has noted in his material, it does involve a limited relationship for him, because the boys would then be in B Town and he would be in Canberra, and so his opportunity to spend time with the boys would, likewise, be limited. 

21. It is necessary that I determine the issue of the recovery order application based upon the paramountcy of the best interests of the boys.  The primary considerations I consider on the basis of limited material.  There is some issue of potential family violence.  It does not rise to a level of intensity or immediacy as to have a significant impact on my determination as to whether or not to issue the orders. 

22. The issue of meaningful relationships looms large.  The father claims that his relationship is being undermined.  In fact, it appears that his relationship remains positive and healthy with the boys, while the mother’s relationship with the boys shows every appearance of being undermined.  The views of the boys do not seem to reflect maturity; they do not disclose reasoning such as to allow me to place weight upon their views as currently expressed, despite the fact the X has reached the age of 14.

23. The balance of the s 60CC factors that fall for consideration do not allow a close analysis. The large changes that would be necessitated by failing to issue the recovery order are significant. They are significant in particular given that there are orders in place which cater for sole parental responsibility on the part of the mother and I do not consider that uprooting the boys from the longstanding arrangement is in their best interests, at least not in the immediate future.

24. I determine that, pending disposition of the father’s application for final orders, an immediate return of the boys is in their best interests such that they may resume their schooling, and resume their relationships and to prevent degrading of the meaningful relationship with the mother in the context of a strong and abiding relationship with their father, notwithstanding the distance that is involved in relation to that. 

25. I intend to make orders which will see the boys travel back to Queensland with their mother immediately.  I note that the focus of part of the father’s complaint related to the arrangements for him to have electronic communication with the boys.  The current orders provide that it be done reasonably.  I am prepared to entertain an immediate application for definition of those orders if that is what the father seeks.  Otherwise, it will be my intention to adjourn the matter for further directions on 9 September before me to deal with issues such as the appointment of an independent children’s lawyer, the arrangements for the preparation of a fulsome family report, and questions as to the appropriate registry to dispose of the matters. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 11 August 2016.

Associate

Date:  10 May 2017