In the recent case of Drew & Jensen  FCCA 656 (13 April 2017) Judge Altobell considered an ex parte recovery order made by a Local Court.
The father obtained the initial order by alleging that the mother had escaped with their 5 years old daughter and 2-year-old son. With the intervention of the police, the children were removed from the mother’s care and delivered to the father.
The mother applied to the Federal Circuit Court seeking the discharge of the recovery order and an order that the children live with her. The mother alleged that she had taken the children and left the home as she was fleeing from the father’s violence. The father denied these allegations.
Analysis of the Court’s Decision on Appeal
In the family law case of Saleh & Saleh  FamCAFC 100, the Court considered how disputed and untested allegations of family violence are treated in interim parenting proceedings. The Court made the following important points:
a) Section 60CC of the Family Law Act (the “Act”) requires a Court when considering what parenting order to make to ensure that whatever order is made it does not expose a person to an unacceptable risk of family violence, but focuses on risk, which can exist independently of disputed allegations.
b) Another pertinent section, Section 61DA of the Act, is in mandatory terms: “the Court must apply a presumption that is in the best interests of a child for there to be an order for equal shared parental responsibility. Section 61DA(3) states that the presumption still applies unless the Court considers that it would not be appropriate in the circumstances’ for the presumption to be applied in making an interim order. Section 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.
c) In the case of Goode, the Full Court of the Family Court warned against inappropriately being drawn into matters of contentious fact and noted that merely because facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.
d) An acknowledgement that at an interim hearing, a Judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible to simply ignore an assertion because its accuracy has been put in issue: SS & AH  FamCAFC 13. This applies especially to family violence allegations.
e) There is no requirement for corroboration or objective support for an allegation of family violence. Family violence often takes place in private, in circumstances where no corroboration is available.
f) A reference to the civil standard of proof is entirely inapt in the context of disputed family violence allegations in interim hearings.
g) It is unwise to simply ignore family violence allegations and find that presumptions of equal shared parental responsibility apply.
The Court stated that a lawyer representing an applicant for a recovery order has a very substantial duty to the court. That lawyer must neither mislead the Court nor allow the Court to be misled by the material placed before the Court, or by any representation made to it.
A recovery order is a form of mandatory injunction, a very drastic form, as the statutory scheme suggests. There is no reason in principle why the law about injunctions, especially ex parte injunctions, should not apply to recovery orders.
In Myrtie & Myrtie  FamCA 460, Kent J stated that the duties of litigants and their legal representatives to act with candour on an ex parte application are well-established. All the facts relevant to the relief sought, whether or not that supports the grant of the relief, must be laid before the Court.
Aside from this duty, the failure to disclose a material fact in an ex parte application for an injunction, subsequently exposed on the next return date, commonly leads to the discharge of the inunction whether or not, if the disclosure had been made, the injunction would still have been granted.
The Court considered that the obligation of disclosure discussed in these authorities apply as much to parties as to their lawyers. When a party fails to disclose relevant information to the Court in a parenting case, this may reflect adversely on their capacity to provide for the emotional needs of the child [s60CC(3)(f)] and their attitude to the child and to the responsibility of parenthood [s60CC(3)(i)]. It is, in any event, certainly a fact or circumstance that a Court might consider relevant [s 60CC(3)(m)].
In his affidavit, the father sets out his evidence as to why he is not spending any time with his daughter, A, 12 years old. He explained that he never had much of a relationship with her mother, Ms Y, as they had separated before the father was told that she was pregnant.
The Court stated that it is critically important for any party who brings parenting proceedings to present all relevant information to the Court. If it were possible to have an even higher duty of disclosure in these circumstances, it arises when ex parte orders are sought.
The difficulty for the father, however, in the present case was that the particular evidence on which he relied in order to gain recovery order, was plainly misleading in what it did not tell the Court.
The mother’s solicitor caused to be produced to the Court on short notice documents produced on subpoena by New South Wales Police. The first category of documents in this regard related to the father’s criminal history. The significance of the criminal history in the context of examining the father’s evidence filed in the Local Court is that his 2003 assault occasioning actual bodily harm convictions arose out of his assault of A’s mother, Ms Y.
It is plainly the case that the father, who must have known about these events and the charges and convictions against him, not only failed to disclose this information, but presented an even more disturbing half-truth before the judicial officer who was called on to make an urgent and ex parte decision about his children.
The Court stated that any parent who has been convicted of an offence involving violence towards a former partner in the past, and does not spend time or communicate with children from a previous relationship for reasons that include that violence, must put that material before the court in all circumstances, especially when ex parte orders are sought.
An ex parte recovery order should only be made as a last resort, in circumstances where the Court is clearly concerned about a risk of harm to children.
The Court stated the principle that recovery orders should not be warranted because children are taken away from their new puppy, their home with which they are most familiar, and one parent. The Court stated that none of the father’s concerns had any basis. Indeed, the clearest indicator of this was the parenting orders that he sought in the same application in which he sought a recovery order. Those proposed parenting orders were totally inconsistent with the alleged risks to the children.
The recovery order was discharged and an order made that the children live with the mother and spend alternate weekends with the father.