Anson & Wilder

[2009] FamCA 158

FAMILY COURT OF AUSTRALIA

ANSON & WILDER [2009] FamCA 158

FAMILY LAW – CHILDREN – Recovery order

Family Law Act 1975 (Cth)

APPLICANT: Mr Anson

RESPONDENT: Ms Wilder

FILE NUMBER: MLC 13268 of 2007

DATE DELIVERED: 27 February 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the children T born … Feburary 1996 and D born … September 1997 and to deliver the said children to the father forthwith, he being the person entitled to contact with the said child pursuant to orders made in the Family Court at Melbourne on the 26 day of March 2008.

2. There be a stay of the issuing of the recovery order until 10.00am on Monday 2 March 2009.

3. That the mother return the children T born … Feburary 1996 and D born … September 1997 to the father by 6.00pm on Sunday 1 March 2009.

4. That if the children are not so returned to the father, at 10.00am on Monday 2 March 2009, the stay be lifted and the recovery order issue upon the application of the father to a registrar satisfying the registrar that the children have not been returned.

5. That all proceedings be adjourned to 13 March 2009.

6. That pursuant to Section 68L(2) the Family Law Act 1975 the children J born … January 1994, T born … Feburary 1996, D born … September 1997 and H born … July 1999 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

7. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

8. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

9. That all parties file any material upon which they intend to rely by 4.00pm on 11 March 2009.

10. That my reasons for judgment this day be transcribed and be made available to the parties.

11. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Anson & Wilder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13268 of 2007

MR ANSON

Applicant

And

MS WILDER

Respondent

REASONS FOR JUDGMENT

1. This is an application for a recovery order in respect of two children of four of the marriage of these parties.  T is 13 years of age and D is 11.  The response by Ms Wilder, the mother of the children, is that pending the progress of these proceedings the children remain with her.

2. By way of background, on 26 March 2008, which I remind everybody was only 11 months ago, final orders were made by consent of both parties, under which three of the four children - T, D and H, H now being nine years of age, were to live with their father.  J, who is now 15 years of age, was to live with her mother.  It is a significant issue in this case that no orders were made by the court for contact between the two older children and their mother and obviously in relation to J and her father.  That has a significant bearing on not only the decision I make today but what might happen in the foreseeable future.

3. I am not dealing with this case on an emotive basis.  I am dealing with it on the basis of the evidence that the parties have presented.  The father’s evidence is that on Monday, 23 February at 3.30 pm he went to collect T from a shopping strip where he usually picked her up from after school.  She did not attend.  He rang her mobile and it was switched off.  He then telephoned the mother to see if she knew of T’s whereabouts, and she told him that T did not want to come home and that she was keeping D from him as well.

4. The emphasis on that evidence, which is important, is the mother's statement that T did not want to come home.  It is interesting at that point in time of course that the parents had had no dialogue with one another.  If there were problems, certainly they were not raised with each other.  That does not look good for any future parenting case between them.

5. The father’s evidence goes on to say that he is afraid for his son's wellbeing as he is disabled, suffering a syndrome called Williams' syndrome.  D cannot talk and has some trouble communicating.  The father goes on then to say that D has improved very much and seems to be very content in his care.  It is the father who says he has attended every hospital appointment with D.

6. All of that has to be seen in the context of orders made only 11 months ago where there were no specific arrangements set by the court for the respective parties to see the various children.  The father’s evidence then goes on to say that on 20 February, which is prior to all of this happening, he spoke to T on the telephone and she seemed quite happy.  T certainly made no mention of any change in her mind as to where she wanted to live.  Importantly, in that conversation, the father says that he told T to have a nice weekend and T replied by saying, "I will see you after school on Monday."  They said goodbye and that ended the conversation.

7. That evidence of course is completely inconsistent with what the mother says.  The mother’s evidence is also set out in a handwritten affidavit.  She says she wishes to submit a notice of risk of child abuse, but at this stage that has not been filed.  She says that on 17 February, so some days before the conversation I have just referred to, she picked up T from school and D arrived home via the school bus.  She said T told her that the forthcoming weekend she was not going to return to her father's and she was going to pack on Thursday her clothing, and she said whilst in tears, that she was sick of being treated badly by her father and his girlfriend.  She also added that she was sick of seeing her brother physically and verbally abused, and that she was not going to return to her father because no‑one would be there to protect D.

8. Again contextually it seemed rather odd to me that having regard to the fact that there were ongoing relations between each parent and the children, that having heard that, nothing was said to the father in between the Wednesday and the Friday.  I make the observation that in future court proceedings between these two parties they had better be aware that a trial judge will take into account how each facilitates the relationship with the children and the other parent.  It certainly does not look good this far.

9. The mother then goes on to say that the children were sent to school on the morning of the Thursday and then they returned to their father's care that night.  Again nothing had been said.  She said that D arrived home on the school bus around 4.30 pm on Friday and whilst he was changing out of his school uniform she noticed a bruise on his right thigh, which she immediately photographed as it was black and blue, saying this was not the first time that he had presented with such a bruise.

10. I have no doubt that it is obviously very disconcerting for a parent who is not the primary carer of a child to see such a bruise.  I began to wonder why there had not been some dialogue between mother and father, but then again that is consistent with everything that seems to be happening between these two parents.  Again I warn them about how that evidence will be seen by a court in the future.

11. Importantly in relation to D, the mother arranged for him to be seen by Dr R, and she annexed to her affidavit a medical report from the N Clinic.  That was done at about 4 pm on 22 February.  The bruise is carefully described and it is consistent with what the mother described.  Dr R said there is no obvious injury anywhere else in his body.

12. What is interesting from my point of view, having regard to the fact that the doctor has a question mark beside the words "child abuse - physical", he does not say that it is consistent with any particular form of beating or child abuse.  I would have thought that that might have been something about which a doctor was concerned if in fact the parent of the child was raising concerns for the child's welfare.

13. Turning back then to T, the mother Ms Wilder says that T was very happy, she presenting with two large school bags full of her clothing and personal belongings, as well as some of her older sister J’s clothing that the father had apparently refused to give the child when J left in December 2007.  Whilst that is also somewhat odd, having regard to the fact that the mother was aware that T wanted to move some days earlier, but I am not prepared to interpret the fact that T had two large school bags of clothings and belongings as a clear indication of the child's views.  There may be some other reasons for all of that, and no doubt they will come out in the fullness of time.

14. The mother’s evidence goes on to say that she asked T if she knew how D got the bruise.  According to the mother, T responded, "I don't know, maybe dad or [C] hit him again."  There are two possible ways of viewing that.  One is that T did not know what happened to D and was therefore looking for some explanation that might have pleased her mother, or possibly that she was simply reporting a fact of life in T’s and D’s life, that dad or C hit D on a regular basis.  I am not prepared to interpret anything from that statement at this stage, until I have some evidence of an objective nature by some expert who looks at exactly what T means.

15. Importantly, the mother did the sensible thing in contacting the Department of Human Services.  I say "the sensible thing" on the basis that all parents who have children who face physical and emotional abuse should be able to fall back on the Department of Human Services.  But I make the observation in circumstances where there are court orders involved.  It does not look good when parents cannot at least say to one another that there is a problem.

16. The mother’s evidence then goes on to say that the department gave her certain advice.  What I have been told by both parties today from the bar table is a story that is on one view, consistent but on another not quite right.  What the father says is that he has spoken to the Department of Human Services and they have not indicated any willingness to become involved, and importantly adding that they could not assist with the determination of how the bruising occurred.

17. The mother on the other hand says the department's view was they were not going to take any further action unless the proceedings were not instituted in this court.  Both parties have spoken to the same person, a Ms B from the … office of the department.  What both parties will need to bear in mind is that Ms B is going to become a very significant witness in this case.  If either of these parties is not telling me the truth then that evidence will have a very significant impact on the outcome of these proceedings.

18. The mother then said in her affidavit that she telephoned the school principal on Tuesday of this week to indicate that she needed to vary the court orders so that T could reside with her on a full‑time basis as the child wished.  She then went on to say, "[T] is now 13 years old an able to choose who she lives with."  I make it abundantly clear that a 13‑year‑old child is still a child and both parents have responsibility for her until she is 18 years of age.  It is not the law in this country that a 13‑year‑old child chooses where she lives.

19. It is the law in this country that when two parents have a dispute over a 13‑year‑old child the court is obliged to consider the child's views.  That depends a lot upon understanding of the child as to those views and her level of maturity.  I have no understanding here of whether T is being manipulated, whether she is frightened of her father or what in fact is happening.  On that basis it makes my task very difficult to determine how much weight, if any, I should give to T’s views.

20. Even when a court makes a recovery order, the provisions of the Family Law Act apply. Every decision in relation to children must be covered by the fact that the best interests of the child are the paramount consideration. To determine what is in the best interests of a child, the Family Law Act sets out in section 60CC a number of factors. I stress for the benefit of the parties in this case that I am determining this matter on the basis of the evidence they have presented. I am not going to plunge in and guess at what has been going on.

21. In relation to the best interests of these two children, I am obliged to take into account the benefit of the child having a meaningful relationship with both of them.  Neither party seems to have made clear just what view they have about the other parent spending a future period of time with those children.

22. A second but also primary consideration is the need to protect the child or children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  The mother has placed that issue high on the agenda.  If the evidence shows that these children are being subjected to abuse or violence in any form, then a court will act on it.  At this stage I am not convinced that the evidence goes that far but when an objective analysis is undertaken of the evidence, particularly with the assistance of the Department of Human Services and the appointment of an independent children's lawyer, the position may be substantially different.  The warning is clear:  the parties will need to ensure that when this case returns in two weeks' time they have all of the evidence that they can garnish in relation to the issue of the need to protect these two children.

23. The other considerations that I need to take into account include the one I have already mentioned about the views expressed by a child.  As I said, I am not prepared to take into account the fact that the child simply brings a bag or more of clothing as an indication that that is the child's view, particularly having regard to the conversation between father and daughter on the Friday prior to the weekend.  Importantly, the parties need to understand that it is not just the views expressed but what weight should be given to the views that is relevant.

24. I am not at all clear on the nature of the relationship between the children and each of their parents.  One of the issues however that I am obliged to take into account is the relationship between these two children and their other siblings.  Neither party has presented any evidence as to how these children will live in a separated environment not only from their youngest sibling from also from their oldest sibling.

25. I am obliged to take into account the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the children and the other parent.  That is a critical factor in this case.  Both parents seem to me to have fared badly.  Both parents will need to have some very clear evidence as to how they propose, for the child or children to spend time with the other parent in the future.

26. I have already mentioned that I am unclear as to how the children will manage living in new circumstances.  I have also mentioned my concern about the capacity of the children's parents to provide for their needs, including their emotional needs.  That is something that someone will have to look at fairly soon.

27. Section 60CC also talks about the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.  For one parent to actively encourage a child to change households, even a child at 13 years of age who is emphatic about wanting to go and live with that parent, without raising the subject with another parent seems to me to have some question marks needing answered as to their parental responsibility.

28. I am very conscious of the family violence issue involved in this case but the evidence at this stage does not warrant me making any findings.

29. I am also obliged to take into account how the parents have behaved towards encouraging the relationship with the other parent and actually participating in the lives of the children when they have had the opportunity to do so.  The evidence in this case is unclear save that, as I mentioned at the start, when these orders were made in 2008 there were no specific provisions about how the parent who did not have the children was to spend time with those children.  On the one view, I could take a positive approach and say that the parties have obviously worked things out, because they have obviously spent some time with the children and encouraged that.  On the other hand, the events of the last week make me very concerned.

30. I am also obliged in every parenting case to look at the question of equal shared parental responsibility.  The presumption of equal shared parental responsibility at an interim hearing level is rebutted in circumstances where the court either does not think that it is in the best interests of the child for the presumption to be applied, or there is not sufficient evidence to make findings.  In this case I am not at all comfortable in saying that I understand exactly what is going on here, and in those circumstances it is not appropriate that I look at the question of the equal shared parental responsibility issue.

31. There is another issue in this case, however, that needs to be contemplated.  There has been long an authority in this court around Australia that once final orders in relation to parenting are made, courts should not simply readily reopen the proceedings without there being a foundation to justify the court allowing the applicant, who wishes to change the orders, moving on to the next phase of the proceedings.

32. This is a case where the facts are significantly disputed, but they are disputed in two different ways.  Sadly, those two different ways affect two different children.  In D’s case there no evidence of maltreatment, other than an assertion made by a 13‑year‑old to her mother.  It may very well be that exactly what T says has happened has been going on for some time.  An independent children's lawyer will assist the court in respect of that.  It will also be possible, depending upon T’s level of maturity, that a family consultant or other psychologist will be able to assist the court in working out just what statement means.  At this stage, however, I am not prepared to make a finding that the evidence relating to D warrants a departure from the existing orders.  The statement itself by T certainly warrants the proceedings being reopened at this stage, subject to the mother filing an notice of risk of child abuse.

33. The second and different issue relates to T.  It seems to me that the whole of T’s evidence as presented at this stage by her mother depends upon her views, or in some people's language her wishes.  If that is the case, then T can tell an independent children's lawyer and a family consultant just exactly what her position is.  I for one would certainly respect the views of a 13‑year‑old child if they were maturely considered and justifiably based.  I am not prepared to make a finding today that those wishes simply ought to be followed because she is 13 years of age.

1. One of the issues I expressed before lunch I now repeat.  If a parent of a 13‑year‑old child in these circumstances cannot convince the child that the court is going to address all of these issues in a proper manner, that parent is effectively arming the child with an opportunity for the child to do what she wishes.  That is not appropriate.

2. In the circumstances what I propose to do is to give the parties an opportunity to explain to these children that they are going to have all of these issues canvassed properly; the children will go back to the starting point, to where the orders provided for them throughout 2008; and in the event that the parties cannot work that out by 6 o'clock on Sunday night I will direct that a recovery order issue on Monday morning at 10 am without further order of the court and the children will be forcibly, by the police, sadly, removed back to their father.

3. In the meantime I propose to adjourn the matter to the senior registrar's list in two weeks' time, at which point in time both parents had better have all of their material about what has been happening in the lives of these children.

I certify that the preceding Thirty Six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  11 March 2009