Mother Opposes Father's Application for Recovery Order

Masek & Jefferson (No 2) [2021] FCCA 1661 (17 June 2021)

The father made an urgent application for a recovery order in respect of the W, the parties' fourteen year old child. The mother has withheld the child in circumstances where she alleges the child has complained of being assaulted by the father. The mother is currently residing with a person facing serious criminal charges but made an undertaking to cease with such living situation.  The Court, in deciding whether or not to make a recovery order, relied on the status of South Australian Police's investigation. 

Facts:

In early 2021, approximately in January or February, W relocated to her mother’s care.  The father was unable to locate the mother and W for a significant period.  A location order was necessitated because of the mother’s failure to advise the father of where the child was living.  The father eventually located the mother and served her with proceedings.  The mother alleged that W complained of having been assaulted by the father. 

The South Australian Police (SAPOL) advised the Court that there had been an allegation that the father assaulted W.  The father's counsel alleges that SAPOL may not lay any charge against the father because her client has not been interviewed nor the matter has been resolved.  The mother is currently residing with Mr D, a person facing serious criminal charges.  He was charged with possess or use a dangerous article, possess a controlled drug (not cannabis), and use or have possession of a prohibited weapon.

Issue:

Whether or not the Court should make a recovery order in favor of the father. 

Applicable law:

Family Law Act 1975 (Cth) s 91B - provides that in any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare.

Analysis:

In child proceedings, there is a duty of disclosure so if the mother was aware of those matters and failed to disclose them in her affidavit material, such actions would constitute misleading the Court and is a serious matter.

There are some indications that what the child says about the father may not be entirely correct.  The father's counsel tendered a portion of a text message which appeared to be between the child and the father from April 2021.  The text message indicated that the child was on good terms with the father and was expressing regret for something that had happened and asked him for $10.  While SAPOL made allegations against the father, SAPOL is yet to resolve the matter. 

Conclusion:

The Court is not satisfied that it is appropriate to make the recovery order in circumstances where the criminal investigation is not finalised.  The Court ordered that the mother be restrained and an injunction hereby issue restraining the mother from permitting the children to come into contact with or be in the presence of Mr D and from consuming illicit substances or permitting the child to be exposed to illicit substance use.  The parties and the child W born in 2007 do attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Adelaide on 17 July 2021 at 9:30am with the parties to telephone the Case Coordinator Child Dispute Services on 1300 352 000 to confirm their attendance.  The family consultant is to have discretion as to how the parties attend.