Welldon and Welldon

[2007] FamCA 1478

FAMILY COURT OF AUSTRALIA

WELLDON & WELLDON [2007] FamCA 1478

FAMILY LAW – CHILDREN – Application for recovery order – Recovery order issued

Family Law Act 1975 (Cth)

APPLICANT: Ms Welldon

RESPONDENT: Mr Welldon

FILE NUMBER: (P)NCF 2097 of 2003

DATE DELIVERED: 21 August 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: Justice Ryan

HEARING DATE: 20 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C Boyd

SOLICITOR FOR THE APPLICANT: Boyd Olsen

SOLICITOR FOR THE RESPONDENT: Crane Butcher McKinnon

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Burns

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Denise Clarke

Orders

1. That pursuant to s 67Q of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshall, all Officers of the Australian Federal Police and all officers of the Police Force of all States and Territories of the Commonwealth of Australia to take possession of and deliver the said child J born … December 1993 to the Mother, Ms Welldon at a place nominated by the officers giving effect to this order.

2. That the Recovery Order remains in force for a period of three months.

3. By consent and pending further order the Father is restrained from telephoning the child J, Mr E and Ms H.

4. That the Father’s application for leave to make an oral application for interim orders that the child J live with him is refused.

5. That the mother's costs of the recovery application are reserved.

6. I vacate the hearing scheduled to commence on 22 October 2007.

7. That on the next occasion the parties and the Independent Children’s Lawyer shall provide:

   (a)       list of issues;

   (b)       list of witnesses;  and

   (c)       proposed orders for the appointment of a Court Expert.

8. That the parties and the Independent Children's Lawyer may have liberty to apply on 24 hours notice.

IT IS NOTED that publication of this judgment under the pseudonym Welldon & Welldon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 2097 of 2003

MS WELLDON

Applicant

And

MR WELLDON  

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally and relate to a recovery order issued yesterday.

2. This is an application by the mother for a recovery order.  The person sought to be recovered is the parties' middle child, J.  J will be 14 in December 2007.

3. Following a five day hearing earlier in the month, on 20 December 2005 Rose J made a suite of parenting orders.  Relevantly, these provided that the parties' three children, B, J and K, would live with their mother and exercise regular contact with their father.  In essence the children's contact with their father centres upon them spending time with him each alternate weekend and half of the school holidays. 

4. On 11 August 2007 all three children went to their father's for the weekend.  The father lives in the Macleay Valley area and the mother lives in Newcastle.  When the mother arrived to collect them at 5.30 pm on the Sunday evening, B, who is the elder of the three children, told her that earlier in the afternoon J and a friend, M, had gone to visit another friend T and had not returned.  B said that the father and K were out looking for J.  The mother telephoned the father on his mobile at 6.15 pm.  The father drove to the homes of various friends who had seen J earlier in the evening but at that stage said they did not know where J was.  When neither party was able to find him, the mother contacted the local police and obtained their assistance in locating the child.  While she was out searching J returned to the father's home. He was there by 9.00 pm, but decamped not long after perhaps overhearing the mother’s telephone call to the father to the effect that she was on her way to collect him.  Following Rose J’s orders this is the third time J has behaved in this fashion.  J went to the home of Ms H where he stayed overnight.  It appears that Ms H did not inform either parent that J was at her home.  Police advised them where he was.

5. On the Monday morning the mother contacted Ms H and unsuccessfully sought her assistance in retrieving J.  Ms H telephoned the father and apparently mistaking B for the father said “has your wife left yet?” The mother telephoned Ms H’s house and spoke with J at 11.00 am.  There was no resolution about J’s returning to Newcastle with the mother.  At some stage during the day J returned to the father's house.  The mother learned this when she telephoned the father on Monday evening.  The father and J were dining at friends. In response to the mother’s enquiry about where J would be sleeping the father told her that this was up to J, with the choices being to either stay with his father or return to Ms H’s.  Since then, J has refused to return to his mother.  He has not attended school and it appears he has stayed with the father or friends in the Macleay Valley area. 

6. On 16 August 2007 the mother filed an application for a recovery order.  The parties and the Independent Children’s Lawyer appeared personally on 17 August 2007.  I was somewhat surprised that the father left J in the Macleay Valley area. I say this because in response to the mother’s application the father applied for an order that J receives counselling.  He did not seek dismissal of the mother’s application or himself seek an interim order that J lives with him.  He had not himself applied for any form of urgent order. The obvious inference is that at this stage the father did not accept J’s claims that he was at risk if he returned to the mother’s care. The mother consented to an order for counselling to be arranged for J on 17 August 2007.

7. So as to avoid increasing the stress of the situation, in particular avoid the necessity for a recovery order, the father was ordered to deliver J to the mother by 10.00 am Monday. The venue for his return was the Dispute Resolution Services at the Court. This venue was selected so as to provide expert assistance to J and his parents with what was potentially a difficult situation.  The father did not return J to the mother over the weekend and did not comply with the order to deliver J to her at the court.  Anticipating that there may be difficulties I had ordered that the parties and Independent Children's Lawyer had liberty to apply on half an hour's notice.  The mother relisted the matter and pressed the issue of a recovery order which had been adjourned until 2.00 pm yesterday afternoon. 

8. The parties agree that in deciding whether or not to issue a recovery order, J's best interests are the paramount consideration. J's best interests have been recently considered and determined by Rose J. Rose J was cognisant of J's stated desire to live with his father.  However, concerning this issue, and in particular the weight that should be attached to those wishes, his Honour said this:

   Accordingly, it is an over-simplification to simply recite and give weight to the wishes regarding residence pressed by the two younger children.  Indeed, I give little weight to them having regard to my findings that the husband has manipulated and/or influenced the expression and strength of those wishes in a variety of ways, the subject of earlier findings. 

   Consequently, I have concluded that the husband has severe limitations upon his capacity to provide for the emotional needs of the two younger children.  I accept Dr [C]'s conservatively expressed opinion that: 'Whilst the father is in most respects a competent parent, he is engaging the children in inappropriate discussions to influence their wishes and is not behaving in a manner that will promote their healthy emotional development.' 

   In addition, I have no reservation in accepting on the balance of probabilities, having regard to all my relevant findings previously given, that the husband has been engaged in a process of alienation of the two youngest children from the wife. The husband 'appears to be oblivious to the potential emotional damage to the children that this behaviour could cause.' 

   It was recognised by both the Children's Representative and the wife that there is likely to be a difficult period of adjustment for the two youngest children in returning to live with the wife and [B] having regard to the background of not only the positive aspects for them in living in [the Macleay Valley area] but also the adverse influence that the husband has brought to bear upon them and professional assistance will be required.  The other alternative to the two youngest children continuing to live with the husband is worse. 

   For the latter situation to continue in my view it is unacceptable having regard to the best interests of the two youngest children being the paramount consideration. There was nothing in the evidence of the husband which engendered any confidence that having achieved his object of a residence order he would suddenly demonstrate the insight and sensitivity that has been so sadly lacking on his part in terms of the effect of his behaviour upon the emotional development of the two youngest children and their relationship with the wife. 

   The husband's mindset regarding the involvement of the two youngest children, currently aged 11 and 9 years respectively, in these proceedings shows no sign of abating.  The husband's evidence has been that in the event of their not being a residence order in his favour he would bring a fresh application for residence if that was in accord with the wishes of the two youngest children.  The sooner the two youngest children commence to live in a healthier emotional environment with the wife then the better it is likely to be for their overall development and progress in their relationship with both the wife and [B].  To that extent those matters are very much in their best interests.

9. It is the mother’s case that, just as Rose J found the father was likely to continue to manipulate the children's wishes, he has done so. 

10. The father says that J should not be returned because he is at risk if he is.  The risk is twofold.  Firstly, it arises from the strength of his wishes to reside with his father and, secondly, the risk of physical harm from his mother and elder brother.  I will deal with the latter first.

11. Exhibits ‘A’ and ‘B’ comprise two photographs, J says, of bruises inflicted on him by his mother and brother.  These bruises are said to have been inflicted in the last week of April 2007 or the first week of May 2007. Curiously, it is alleged that J first showed these photographs, taken on a camera he received at Christmas 2006, to Ms H.  This was on Sunday, 17 June 2007.  The father, upon learning about the photographs, says he later discussed them with J and his discussion is contained in the proof evidence exhibited yesterday.

12. The mother first became aware of the photographs existence in early August 2007.  She denies inflicting any bruises on J or seeing B hit him in the manner alleged.  Thinking back, she recalls that on 12 June 2007 J may have hurt himself while at play with a friend.  She has no recollection of seeing bruises around 12 June 2007.  This is the only occasion upon which the events of the day may explain these bruises developing on the child.  The father says there were no bruises on J on 16 and 17 June 2007.  I agree with the mother's proposition that it is unlikely if the bruises arose from an incident on 12 June 2007 that they were completely faded within the few days following. She points out that there is nothing in the photographs which shows that the photographs are of J.  The effect of this evidence is that the nature, causation and timing of the bruises are uncertain.  It seems that they arose some four months ago.  There is no evidence that there has been any further bruising to J and I infer there has not.  Thus although potentially serious the evidence is not so clear that I could be satisfied that if J returns to his mother he faces an unacceptable risk of physical harm from her or B.

13. I turn then to consider J's wishes.  It is significant that J gave these photographs to Ms H and then to his father.  There can be no doubt that he has shown them the photographs with the intention that his father would use these to bolster his application that J should live with him.  It also suggests that J may believe that Ms H is his father’s ally.  If the photographs related to J’s concerns about being physically harmed while with his mother I would have expected him to show the photographs to his father and/or Ms H the first weekend after the alleged incident.  However the combination of J's refusal to return to his mother in August 2007 and provision of the photographs shows that presently J has a strong wish to live in the Macleay Valley area, in all probability with his father.  The issue arises, however, whether the views J is presently expressing reflect his own maturely formed desire or whether his views are substantially manipulated and driven by the father continuing to behave in the fashion identified in Rose J's judgment.

14. The father would submit that there is no evidence that suggests the criticisms made by Rose J are apt today.  I do not accept that that is the case.  Primarily this is because the father has failed to comply with the Court's order that he deliver J yesterday to the mother.  I was concerned on Friday when I learned that the father had left J in the Macleay Valley area and that the Court's attempts to arrange J's orderly return that day were thwarted by distance.  These two factors alone raise the spectre that there may be some strength to the mother's case that J continues to be manipulated by his father.  Whether or not this is so will be a critical issue for trial.  But the evidence presently is not so clear that J's desires are formed upon mature reflection that they should be allowed to drive the outcome of this recovery application.  Indeed with respect to the difficult situation J is in, his behaviour is presently quite immature.

15. I regret deeply that a recovery order is necessary but it seems to me that, unless a recovery order is issued, the prospect that the father will return J to the mother are slim indeed.  Submissions were made to the effect yesterday that a recovery order involving police can only be traumatic for the boy and it is preferable that the father has the chance to explain the situation to J and arrange the boy’s return. With these remarks I agree. I was surprised that the submission was made on the father's behalf because with respect to him he has had ample opportunity but failed to do so. 

16. In the regrettable circumstances, I am satisfied that a recovery order is necessary and that it accords with J's best interests as they are presently understood. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date:  30 August 2007