Wilde and Foster (No 2)

[2018] FamCA 956

FAMILY COURT OF AUSTRALIA

WILDE & FOSTER (NO 2) [2018] FamCA 956

FAMILY LAW – CHILDREN – Application for recovery order – Where the father makes an application for an urgent recovery order on an ex parte basis – Where the mother has contravened an order that the child live with the father – Where the mother has previously been found to pose an unacceptable risk to the children if their time with her is unsupervised – Where the child who is the subject of the recovery order sought is 17 months old – Where the mother, members of her family and her previous solicitors have not agreed to have the child returned to the father – Recovery order made.

Family Law Rules 2004 (Cth) r 5.12

APPLICANT: Mr Wilde

RESPONDENT: Ms Foster

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2427 of 2018

DATE DELIVERED: 31 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 31 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Doolan Wagner Family Lawyers

SOLICITOR FOR THE RESPONDENT: Parker Law

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

Orders

THE COURT ORDERS THAT

1. Leave be granted to the Applicant for short service of his Application in a Case filed on 31 October 2018.

2. Leave be granted to the Applicant for substituted service of his Application in a Case filed on 31 October 2018 to the Respondent mother’s email address, being: ...

3. Leave be granted to the Applicant to proceed ex parte for the purpose of his Application in a Case filed on 31 October 2018.

4. Pursuant to section 67U of the Family Law Act 1975 (Cth), a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child Y, born … 2017 (“the child”) and to return the child to the Applicant father, Mr Wilde, who is resident at C Street, Suburb D NSW 2065.

5. For the purpose of finding and recovering the child, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia are authorised and directed, and if necessary by force, 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 may be found.

6. The matter be listed in the Duty List on 12 November 2018 at 9:30am for further directions.

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 Wilde & Foster (No 2) 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 SYDNEY

FILE NUMBER: SYC 2427 of 2018

Mr Wilde

Applicant

And

Ms Foster

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an urgent Application in a Case filed on behalf of the father, without notice to the mother, in respect to a parenting matter that is before the Court.  In that application, the father seeks an order that the parties’ child, who is 17 months old, be recovered, after he was taken from the care of the father, by the mother, in contravention of current interim parenting orders.

2. The background to the matter is set out in the interim judgment I delivered on 6 July 2018.  That judgment identifies that the dispute between the parties concerns parenting arrangements for the parties’ children X, born in 2014 and Y, born in 2017 (“the children”).  On that date, I made orders that the children live with the father and spend time with the mother each Monday from 12:00 pm until 3:00 pm, each Wednesday from 12:00 pm until 3:00 pm and each Friday from 11:00 am until 4:00 pm, as well as during such other periods as may be agreed between the parties in writing.

3. I also made an order that the children’s time with the mother be supervised by B Group or such other professional supervision organisation as the parties may agree upon and that the cost of that supervision be met equally by the parties.  That order for supervision was made in the context of concerns regarding the mother’s mental health and, specifically, the father’s allegations that, as a result of those mental health issues, the mother poses an unacceptable risk of harm to the children if they were to spend other than a limited amount of supervised time with her. 

4. The father has today filed an application for a recovery order, supported by an Affidavit. That application is made, as I have said, without notice to the mother. In those circumstances, the Court is required to consider the matters set out in rule 5.12 of the Family Law Rules 2004 (Cth) (“the Rules”). Relevantly, for the purpose of these proceedings, I note the following:

   a)In terms of rule 5.12(b)(ii), there has been a previous case between the parties, to which I have referred. That case, as I have indicated, concerned parenting arrangements in circumstances where there are allegations regarding the mother’s mental health and the unacceptable risk she poses to the children;

   b)In terms of 5.12(b)(iii), I have referred to the particulars of the interim parenting orders currently in force between the parties;

   c)In terms of rule 5.12(b)(iv), I find that, based on the facts as set out in the father’s Affidavit, it appears that the child, Y, has been taken from the father’s care, by the mother, contrary to the orders that I made on 6 July 2018, to which I have earlier referred;

   d)In terms of rule 5.12(b)(v), the father’s solicitor has today given evidence that her firm has attempted to contact the mother’s legal representatives to advise them of their intention to make this application. The father’s solicitor was advised that the mother’s solicitor is currently on leave and spoke to the solicitor who has care of the mother’s matter, in her absence. That solicitor advised the father’s solicitor that the mother has ceased providing instructions to her solicitor;

   e)In terms of rule 5.12(b)(viii), I note that Y is 17 months old and, accordingly to the father’s Affidavit, was, last night, taken by the mother to her rental property at Suburb D, without the father’s consent. At the request of the father, the Police attended that property and were of the view that there were insufficient supplies and equipment at that property to properly care for Y. On that basis, the mother took Y to the maternal grandmother’s residence at Suburb AA; and

   f)In terms of rule 5.12(b)(ix), based on the circumstances set out in the father’s Affidavit, I am satisfied that the recovery order sought by him should be urgently made and that the child may be at risk of serious harm if he is not returned to the father’s care, as soon as possible, in accordance with the current interim parenting orders.

5. As stated, pursuant to those orders, the children’s time with the mother is currently supervised.  The father asserts that, as a result of the mother being unable to meet half the cost of that supervision, that time has since ceased. 

6. The father’s Affidavit sets out occasions when the mother has since attended his residence to spend time with the children.  Specifically, the mother attended the father’s residence yesterday evening, 30 October 2018, with a view to providing clothing to the children.  However, during the course of the evening, it appears that events occurred such that the father requested the mother to leave the residence.  

7. The father asserts that the mother did not leave his residence, as requested, and so he contacted the Police.  While he was doing so, the father asserts that the mother left the home with Y.  As stated, the Police subsequently attended the mother’s residence at Suburb D and expressed concern regarding there being inadequate supplies and equipment to properly care for Y.  

8. As noted, Y was then taken by the mother to the maternal grandmother’s home at Suburb AA.  The father refers to attempts that he has made to contact the mother, the maternal grandmother and the maternal aunt, as well as the solicitors who were previously acting for the mother.  According to his Affidavit, despite attempts to secure an agreement with those persons for Y to be returned to his care in accordance with the current interim parenting orders, Y has not been returned to the father. 

9. As such, I am satisfied that the mother has contravened orders for Y to live with the father, in circumstances where I have previously found that the children are exposed to an unacceptable risk in spending unsupervised time with her.  Given Y’s very young age, I am satisfied that there is urgency such that it is appropriate that I make orders in circumstances where notice of this application has not been provided to the mother.

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore judgment of the Honourable Justice McClelland delivered on 31 October 2018.

Associate: 

Date: