Principles applicable to ex parte recovery applications

Principles applicable to ex part recovery applications

1. 20. It appears clear that the Applicant misled the State Magistrate and the solicitors for the Applicant, at best, failed to provide the State Magistrate with any or any appropriate assistance as to the law and applicable principles to be applied in an application such as this. I therefore take some time to reiterate the relevant principles for making an ex parte order, as are apparent from the authorities and the particular difficulties in applying these principles in children’s cases.
   21. The difficulties that may be caused by ex parte recovery orders were identified in the Full Court in Scarle & Ringwood and Anor [2017] FamCAFC 57 where the court said:
       [17] The trial judge acknowledged the problems with the making of the Recovery Order and said at [12]: “Certainly the issue of a Recovery Order was a very dramatic step and not one that I would have taken had I been handling the case in early 2013.” We agree. At best the evidence adduced by the grandmother suggested a Commonwealth Information Order and/or Location Order was required, followed by a prompt hearing. The consequence of the Recovery Order was that the children were removed by the police and placed with the grandmother. The Applicant had no opportunity to oppose the application or deny the serious allegations made against her, virtually until the hearing three years later.
   22. Another poignant example of the difficulties that can flow from such ex parte orders can be seen in Sawant & Karanth [2014] FamCAFC 235 where a Magistrate’s ex parte recovery orders resulted in a breastfeeding child being removed from a mother.

1. 24. The modern practice referred to has been extended in the Federal Circuit Court to include even telephoning a Respondent from court to secure their engagement in proceedings in order to avoid the need for ex parte recovery orders in many cases and orders to bring children to court after a short delay of a day or so.
   25. If a court is satisfied that the urgency of a claim is so great as to outweigh the egregious lack of procedural fairness inherent in making ex parte orders, the only way for the court to ameliorate the procedural unfairness is to demand that Applicants make full and frank disclosure of all relevant material, including claims likely to be made by the other party. An Applicant must act with utmost good faith (‘uberrimae fides‘): see Dalglish v Jarvie [1850] EngR 688; 42 ER 89; (1850) 2 Mac & G 231, 243.

30. Most importantly, one cannot underestimate the distress (and potential psychological harm) to a child when the police execute a recovery order. Invariably the police attempt to execute the orders in the least distressing way for a child, however they must also make an assessment as to the possible dangers inherent in executing such an order. At best the execution of the order results in the child being taken without warning from a place of apparent safety, such as a school or kindergarten, by people unknown to the child. At worst the child may be seized as a result of a raid upon the child’s home by police prepared for all manner of resistance (sometimes even armed and in protective vests), then being physically taken from their distressed parent by the police. In most cases children can be secured within Australia with a watch list order and the parent served.
31. Where a parent fails to engage with the court arrest of the parent is preferable to a recovery order. Whilst there will occasionally be cases where the risks to a child are such as to outweigh the obvious harms flowing from a recovery order, those cases will be rare indeed. The risks of harm as a result of the effects of a recovery order must always be carefully weighed against the risks of harm if the Respondent is given notice. In this respect, any delay in seeking an ex parte order will be a significant consideration, often telling against urgency and the risk of harm that may follow from giving the Respondent notice of the application.
32. If the proceedings did not involve the welfare of children, the conduct of the Applicant in this case in obtaining the ex parte order in the way it was obtained and on the terms on which it was obtained, would in my view, result in the court discharging the order. However, as this is a matter that involves the best interests of children, the conduct of the Applicant is but one factor in determining what the most appropriate orders are for these children at this point in the proceedings. To approach the matter on the basis of simply discharging the orders would not appropriately place the best interests of the children at the forefront, as is required under the Family Law Act 1975.
33. The nature of family law proceedings presents further unique difficulties for the court. Litigants are often extremely emotional and therefore find it difficult to provide a balanced account of events to their solicitors. Many family law solicitors will have rarely, if ever, applied for ex parte orders and will often be operating on a limited budget that precludes briefing experienced counsel. The result is that judges and magistrates who are sitting in very busy lists often receive far less assistance than would reasonably be expected in ex parte applications in other areas. Despite often imperfect material and little assistance the risks to a child must still be weighed – risks more significant than loss of money or property. The State Magistrate, in this case, was placed in an invidious position and one can well understand why the orders may have been made.
34. The conduct of the Applicant in bringing the proceedings in the manner in which they were brought is a matter that must necessarily reflect upon the Applicant’s attitude to the responsibilities of parenting unders.60CC(3)(i), and the level of insight that the parent shows with respect to the need to protect the children from psychological harm from separation from those who have been primarily caring for the children for some time as required by s.60CC(3)(d). However, it is important to bear in mind that these are but some of a great many factors that are relevant in determining the children’s best interests in a case such as this and should not permitted to become overwhelming or determinative: rather these matters must simply be weighed along with the various other factors relevant to determine the most appropriate orders for the care of the children.