Recovery

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Conlan & Tomlinson [2019] FamCA 93 (27 February 2019)

The child is 8 years old and is subject to final parenting orders that provided for both parents to have equal shared responsibility. The child resides with the mother and spends time with the father. The child has a good relationship with both parents.

However, the father subsequently applied to restrain the mother, and Interlocutory orders were made, the father alleged the mother had threatened to relocate the child to the United Kingdom for a period of time and enrol the child there for school; provisions were made regarding international travel.

It’s important to note at this point, the mother had previously removed the child from school, enrolled and removed her from another school and then commenced home schooling without the fathers consent. The orders also state for a psychologist to support the child’s anxiety and the return of the child back to mainstream school.

The mother- pending final orders, notified the father of her proposal to relocate with the child to the ACT, the father considered it but did not consent. The mother then relocated with the child, notifying the father of the location and the mainstream school the child was enrolled in.

The father has now filed an application in a case seeking the return of the child to live within a 40 km radius of him with the mother, or for a recovery order for the child to live with him if the mother does not return. He sought orders related to schooling arrangements for the child and for costs. The relocation by the mother is in conflict with the orders made in relation to equal shared parental responsibility.

The mother now seeks orders allowing the child to remain in the ACT and to ultimately relocate to the UK with the child.

FACTS SUMMARY:

  • Interim Parenting Orders.
  • The mother made a unilateral change in the face of final parenting orders.
  • The mother and child relocated to the ACT without the fathers consent.
  • The mother further proposes relocation to the UK with the child.
  • The father has applied for orders seeking the child be returned to the area with the mother, if the mother does not return, for the child to reside with him.
  • The mother seeks to remain with the child in the act with intentions to ultimately relocate to the UK.

ISSUE:

Is it in the child’s best interest to remain in the ACT with the mother?

HELD:

It was ordered for the child to be promptly returned to the town to the fathers care, the exception is if the mother returns as well, then the child will live with her and have access to the father. The mother may also select the school for the child, however she is prohibited to change the school without the consent from the Father.

If the Mother does not return with the child, she will remain with the father and time spent with the mother will have to be considered. Furthermore, it was established the mother’s conduct was in contravention of the final orders, however, punishment for breach was not a concern in these proceedings.

The court considered the child to remain in the ACT with the mother, nonetheless there was significant concern regarding the accumulative instability in the child’s life over a period of time from the choices and conduct by the Mother

It was stated at [35] the child had changed schools once and then been removed from school completely to be home-schooled. She has then changed home, changed city, and enrolled in a new school and now there is a proposal that she may relocate to a new country.

It was therefore determined in the best interest of the child that there is a significant need for her to be provided stability, at the very least during the circumstances of the current proceedings, even if it means abrupt interruption for the child and possible amendment of primary carer.

 

Legislation and Principle Cases

Family Law Act 1975 (Cth) s 65DAA  s 60CC  

Goode v Goode  [2006] FamCA 1346

Morgan v Miles [2007] FamCA 1230;  (2007) FLC 93-343

Rice & Asplund [1978] FamCA 84;  (1979) FLC 90-725

U & U [2002] HCA 36;  (2002) 211 CLR 238

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Herbert & Herbert [2019] FamCA 5 (10 January 2019)

 

FACTS:

  • Two boys: X who was born in 2003 and Y who was born in 2009. 
  • Mother was primary carer of the boys.
  • On 7 September 2018 interim orders were made.
  • Ordered both boys to live with the father and not to spend any time with the mother nor communicate with her unless with the father’s agreement.
  • On 7 December 2018, the mother applied for an order that the boys again start spending some unsupervised time with her.
  • The ICL and father opposed the application.
  • The Court ordered the mother for unsupervised time with the boys on alternate weekends.
  • Included in the orders was an option for the father to apply for an urgent hearing for recovery orders if the children were not retuned at the end of their visitation.
  • On 9 January 2019, the father asks for the matter to be listed urgently for the hearing of an application for a recovery order. Boy X (15 year old) had not been returned to the father on Sunday, 6 January 2019 as was required by the orders.
  • Although the boy Y was returned at the end of that weekend, the boy X was not. The mother states that it was the child’s own voluntary decision and that he told the father “I’m not coming back with you."
  • Evidence suggests he was returned to his father on Tuesday night, 8 January 2019, at approximately 6.30 pm.
  • Wednesday 9 January, the boy got on his pushbike and rode back to his mother’s place without his father’s knowledge or consent.
  • The mother says that she took the boy back to the father’s home in the morning and the father was not there, she took him back to her place.
  • The mother states that she again took him back to the father’s place it is also an undisputed fact that again the child got up and without his father’s knowledge or consent got on his bike and rode back to his mother’s place.

HELD:

Recovery orders for the 15-year boy old to be returned to the father- not to be executed until after 4.30 pm if the Mother has not returned him or he does not voluntarily return himself, the Mother also looses unsupervised time and all communication with both boys until further orders.

While the Mother emphasises that she repeatedly takes the child back, the evidence display that the mother lacks capacity to be able to persuade the boy that it's not in the child's best interests to keep doing what he has been doing, returning to her home against the orders.

 

 

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Bondelmonte v Bondelmonte  [2017] HCA 8 (1 March 2017)

This case sparked national interest in 2017, with two brothers aged 15 and 17, who expressed strong views to reside with the Father who had existing equal shared parenting orders with the mother.

This case tested the expressed views of children (in this case teenage children) and their wishes for which parent to reside with.

FACTS:

  • The Mother and Father separated in 2010 and had equal shared parenting orders, they have a daughter aged nearly 12 and 2 sons aged nearly 15 and nearly 17.
  • It was decided between the family the two sons live with the Father and the daughter lives with the Mother. All siblings had regular contact, the eldest son did not have much contact with the mother, the youngest son did.
  • In 2016 the father and the boys went on a holiday to the USA that was consented by the mother in accordance to existing orders.
  • They did not return to Australia after the holiday concluded, the Father and boys wanted to remain living in the USA and contacted the mother to tell her so. The move overseas, however, was a breach of the existing parenting orders.
  • The boys were clear they wanted to stay in the USA with their father.
  • However, the mother wanted them to be returned to Australia (and so did their sister), she filed orders in addition to proceedings brought in the United States under the Hague Convention.
  • The primary judge made interim orders for return of children to Australia and for living arrangements upon return.
  • It was uncertain where the boys should be placed to reside if the father did not return to live in Australia, they expressed they did not want to live with the mother or sister, the court granted the children live in supervised accommodation paid by the father or to reside with parents of their friends.
  • The Father appealed and it was dismissed
  • The Father then was given leave to appeal the decision to the High Court.

ISSUE:

  • Was it incorrect to discount weight given to views expressed by children?
  • Was the father's breach of parenting orders relevant to children's best interests?
  • And is it necessary to determine children's views as to living arrangements?

HELD:

Appeal by the Father dismissed.

The High Court supported the primary judge’s application of discretion in not placing as much weight on the boys’ views and that ‘other factors’ needed to be considered (such as relationship to mother and sister, relatives etc).The High Court held that Section 60CC(3)(a) only requires those views ‘expressed’ by a child to be considered and ascertaining a child’s view is not statutorily mandated.

Furthermore, the court determined the boy’s views were under the influence of their father, the High Court states: ‘Although accepting evidence that the boys wished to remain living with the father in New York, Justice Watts considered the weight of those views to be ‘weakened by the circumstances which have been contrived by the father.’

Moreover, the high court further specified at [39] the father's flagrant disregard of the parenting orders was a matter relevant to the child's best interests under s 60CC(3)(i).

Despite the boys’ strong desires to reside in the USA with their father, they were ordered to reside in Australia, this was in the child’s best interest, if the father did not return to reside with the boys it was ordered they were to live in supervised accommodation paid for by the father or with parent’s friends.

Case Summary from the High Court

 

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Young girl ordered back to father under the Hague Convention despite saying he hit her

 

9:00am 1/2/2019

The mother of a six-year-old girl ordered back to Australia under the Hague Convention is questioning why her daughter's views were disregarded by a judge.

The girl told a lawyer she was scared of her dad because he smacked her and yelled at her most days.

Applications under the international child abduction agreement can be denied when it is determined a child would be thrust into an intolerable situation.

That's exactly what a New Zealand mother believes her daughter would have been put into after a Family Court case last year.

Melanie, not her real name, said she fled Australia and her former partner after being sexually and physically assaulted.

Later he applied for the daughter's return, Melanie said her daughter was given a lawyer for child, and was independently interviewed prior to the case.

The girl's comments, detailed in court files, made clear she did not feel safe with her father.

"When asked if there was anything her father needed to change, she said he used to smack her bottom every day and yelled at her every morning," the court document reads.

"She changed the everyday to lots of days.

"She said that he did this for no reason. I asked if she felt safe with him and she said no. I then asked why. Initially she said she didn't know, and then she said, 'Because of the smacking and yelling'."

Melanie said her daughter's comments were paired with evidence of injuries sustained at the hands of her father.

But at the end of the case her daughter was ordered back to Australia, and initially it would have been without the support of her mother.

"My passport had already expired, so they weren't going to allow time for me to renew my passport even though I could renew hers at the same time, given it was about to expire as well," Melanie said.

"They said, 'No, it has to be in a timely manner, her passport's about to expire, she needs to go back with or without you'."

Melanie secured an emergency passport and left for Australia four days after her case concluded, and before she had the chance to consider an appeal.

She is still confused about how her daughter's testimony could be disregarded, and that she could be ordered back to a father she was afraid of.

Law Society Family Law section chairperson Kirsty Swadling said dealing with children in court cases can be difficult.

Judges needed to weigh up their maturity and age in taking their testimony into account.

"The question is whether there is a child that objects to being returned, and whether that child has obtained an age and degree of maturity at which it's appropriate to take those views into account.

"So, there's a couple of things there. First of all, working out what the views of the child are, and secondly, what that child's age and degree of maturity is.

"Obviously, the older the child, the more relevant their views are going to be."

Ms Swadling said increased support for New Zealanders living in Australia would likely reduce the number of Hague Convention cases taken up here.

New Zealand mothers agree.

Melanie and her daughter are now living in hiding in Queensland, supported by a $300-a-week New Zealand support benefit.

They had been homeless for more than two months but moved into a house this week. It leaves them just $50 each week for other living expenses.

Because of that, Melanie's daughter hasn't been able to start school.

"She probably won't be starting for another one or two weeks just because I can't afford her stationary and uniform for a brand new school, given I get $50 remaining at the end of my work and income payment each week."

Justice Minister Andrew Little said he would be taking up the treatment of New Zealanders in Australia with government officials when the two nations meet this year.

 

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AUSTRALIAN FEDERAL POLICE: RECOVERY ORDERS

Recovery of children:

A Recovery Order is an order of a Court issued pursuant to section 67U of the Family Law Act 1975 (Cth).

A Recovery Order can direct The Marshal, officers of the AFP or officers of State and Territory Police forces to locate and deliver the subject child to a person nominated on the Recovery Order (usually the Applicant).

If you would like more information about Recovery Orders, you may wish to read the Federal Circuit Court fact sheet 'Recovery Orders' which provides further information.

How do I obtain a Recovery Order?

If you wish to apply for a Recovery Order, it is recommended that you seek legal advice.

I have a Recovery Order for my child. What happens now?

The AFP will only accept and act upon a Recovery Order issued in accordance with section 67U of the Family Law Act 1975 (Cth) from the issuing Court.

The AFP receives all Recovery Orders issued by all Courts across Australia, with the exception of Western Australia. The Family Court of Western Australia will refer all Recovery Orders issued in WA to the Western Australia Police. If your Recovery Order was issued in WA, please contact the WA Police.

It should be remembered that the AFP and State and Territory police are coordinating many Australian family law matters (including Recovery Orders) at any one time. This means that State or Territory police may have carriage of a Recovery Order related to your child.

The AFP understands these matters are difficult for all involved and will coordinate and action orders it receives as soon as possible.

Background enquiries

It is important that the AFP is aware of the background in the matter before an attempt is made to recover your child. For the safety of your child and the police officers, the AFP undertakes background enquiries before executing a Recovery Order. To assist the AFP in locating your child and for the safety of all, you should provide the AFP with as much information as you have regarding your child, the Respondent, or any other person that may be with or have knowledge of where the child is. You can do so by first completing a Recovery Order Information Sheet (PDF, 1MB) and providing a copy to the Court when making your application for a Recovery Order.

The AFP requires a completed Recovery Order Information Sheet (PDF, 1MB) to enable an effective response to the Recovery Order.

Digital photographs of your child may assist and can be emailed to AFP (see AFP contacts).

Referral to a State or Territory police service

The AFP is responsible for the coordination of all Recovery Orders, with the exception of Western Australia. The AFP has agreements in place with the various State & Territory Police services throughout Australia for the execution of Recovery Orders. The State or Territory your child is located in will determine which police service executes your Recovery Order.

Recovering your child

Except in extraordinary circumstances, police will not generally recover a child until the person to whom the child is to be returned is in a position to receive the child and is close by. This is especially so if the child is very young or does not speak English. If the child is interstate, the Applicant must still be as close as possible to receive the child. This reduces the stress on the child and the necessity for the child to remain in police care.

You will not be permitted to be present during the execution of the Recovery Order.

Any costs incurred in effecting the delivery of your child (ie. travel, sustenance or accommodation) will be borne by you and will not be met by the Commonwealth or any State or Territory police service. Police have the discretion not to execute a Recovery Order if you are not able to receive the child.

Also, it is an offence to prevent or hinder a police officer in the execution of a Recovery Order (s67X of the Family Law Act 1975 (Cth)), or to prevent or hinder a police officer in the execution of their functions generally (s149.1 of the Criminal Code 1995 (Cth)).

What if I don't know where my child is?

If you do not know where your child can be located, the AFP may suggest that you obtain a Location, Commonwealth Information, or Publication order from the Court to assist in our investigations.

It should be remembered that police are very limited in the enquiries they can conduct in Recovery Order matters. The issuing of a Recovery Order does not necessarily mean that a criminal offence has or may have been committed and therefore may limit our ability to access certain personal information.

It is highly recommended that you discuss your options with your lawyer.

How long are Recovery Orders valid?

Recovery Orders are valid for 12 months from the date of issue unless otherwise stated. A recovery order does not cease to be in force once the order is executed (Note 2 of section 67Q and section 67W(3)), and it may lawfully be re-executed.

However, following the execution of a recovery order your matter is generally mentioned before the Court that issued the Recovery Order and orders may or may not be made by the Court that affect the validity of the Recovery Order. The AFP is generally not informed of any subsequent orders made by a Court. For this reason, as a matter of routine, Police will generally only re-execute a Recovery Order following consultation with the issuing court.

orders

 

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