B and F - [2001] FMCAfam 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & F

[2001] FMCA fam 314

FAMILY LAW – Urgent change of residence ordered – risks to child – lack of candour by mother.

Applicant:

Respondent:

File No:

ZB 5084 of 2001

Delivered on:

7 December 2001

Delivered at:

Brisbane

Hearing Date:

7 December 2001

Judgment of:

Baumann FM

REPRESENTATION

Solicitors for the Applicant:

Mr Boundy of Andersens

Counsel for the Respondent:

Mr Goodwin

Solicitors for the Respondent:	Robins Hoskins
Counsel for the Child Representative :	Mr George

Solicitors for the Respondent:

Robyn McKenzie

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER:

That the child R born 18 October 1992 reside with the FATHER.
That the FATHER collect the child from the WRSS, by arrangement with the school, but no later than 2.30 pm today.
That the MOTHER have no contact to the said child unless agreed to by the FATHER.
That from the pronouncement of these orders, the MOTHER be restrained and an injunction is hereby granted restraining her from attending the WRSS.
That a Recovery Order directed to All Officers of the Australian Federal Police and All Officers of the State and Territory Police Forces of Australia issue authorising them with such assistance as they may require, and if necessary by force, to recover the child and deliver her to the father.
That the Recovery Order lie in the Registry.
That the application be adjourned to 2.15 pm on 14 January 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

ZB5084 of 2001

Applicant

And

Respondent

REASONS FOR JUDGMENT

The child representative re-listed the matter for consideration in accordance with a liberty to apply provision contained in an order made by me on 8 October 2001. That order arose from a trial of this action which had taken place before me some days earlier. It was a matter which troubled me at the time and the concerns which I expressed are set out in the Judgment given at that time. I shall cause a settled copy of the reasons for Judgment to be distributed to the parties without further delay.
However, it is worthwhile reminding the parties that I concluded my remarks in that Judgment by these observations:
“Perhaps I have not yet quite reached the position faced by the trial Judge in re David where the only choice open to me is a change of residence for R. Certainly everyone concedes a change of residence at the current time would prove extremely traumatic for the child. Mr Sedgman said so. Although the child’s relationship with her two siblings is a fact to be given significant weight in my view certainly I can find no reason why the two boys should not continue to have contact with B, a person who I am completely satisfied acted with affection and consideration as their father for eight years of the marriage and with the support of the mother during that time. I must admit I have agonised over this decision. I decided it is not in the best interests of the child for me to make a final order in this matter at this time because of the reservation I have about the mother's overnight attitudinal transformation.”
As a result of the assertion made by her counsel on her instructions, at the time of the conclusion of the trial, namely that the mother moved from a position that the father ought have no contact to the child, R, to the position where she supported, she said, contact between the child and the father being recommenced, I set out a specific regimen of contact which developed over time to a overnight contact regimen.
I did so in the firm hope that the mother would, as she instructed her counsel that she would, support and promote contact and undergo appropriate counselling to enable her to deal with the changes that were required for R to enjoy the contact with her father that was being proposed by him. I made observations in the Judgment at that time that I regarded the mother as an unreliable, and in fact untruthful witness.
There has been nothing that I have read in the material to date, and in the brief evidence that she gave today, which in any way persuades me that that finding at that time is not still a valid finding. In fact today, for the first time, I was informed that the mother had remarried on 7 October, it would seem some three days after the trial of the action. There was some evidence given at the trial about the mother engaging in internet romances and engaging in relationships which were distracting to her role as a mother. She of course denied them.
More importantly, during the trial she denied to my recollection a direct question about the level of any relationship she had or was likely to have into the future arising from that involvement. She denied anything occurred. I have no way of understanding why the mother would so blatantly and clearly act untruthfully in this Court. It appears on the face of the material before me that she did not inform her solicitor of what was a very material fact.
Furthermore it seems that she at no time raised these matters with Mr Sedgman, the report writer. There was no way therefore at that time, or even today, to understand what impact upon the family unit, and in particular to R, the introduction of an apparent American man, Mr G, coming into the life of the children over the previous six months had upon R.
The orders I made on 8 October 2001 required the mother to immediately engage in such counselling or therapy at her cost as approved by the child representative to deal with her actions and conduct in discouraging contact between the father and Rebecca. In support of her compliance with that order I was provided today with a report of a Dr Cook. The report is of little value to me. It is undated but refers to the fact that the mother attended upon him on two occasions – 20 November and 27 November.
It is clear that Dr Cook was not given the benefit of the report from Mr Sedgman, nor any idea of the results of the trial including the clear finding I made that there was no evidence to my satisfaction justifying the mother's claim of sexual abuse by the father against R. It is again, in my view, another clear and perfect example of the way in which the mother chooses to deal with the issues relating to R. It reflects a lack, in my view, of candour to Dr Cook. It reflects, in my view, a lack of proper compliance with my order.
The father also was required to engage and undertake counselling as approved by the child representative. To his credit I am instructed from the Bar table that he undertook a five week anger management course conducted by Life Line.
Today I was urged by the child representative and the solicitor for the father to make the order that I was urged to make at the conclusion of the trial on 5 October, namely that there be a change of residence.
In considering that issue I must necessarily consider what is in the best interests of the child. I am firmly of the view, considering the further evidence put before me, which suggests, even though untested on an interim basis, an ongoing lack of support by the mother for contact between R and the father. Such view is supported by Mr Trudinger, an experienced child psychologist who was engaged by the child representative in accordance with my order to facilitate the ordered contact. There has been no attitudinal change by the mother as she indicated by her words, but not her deeds, would occur.
I am then confronted with the situation that, as it presently stands, whilst the child remains in the care of the mother I must accept that there is no prospect of any contact with the father taking place. I do not hold similar reservations in relation to the father's position. Certainly, Mr George says that I should provide a sanctuary for the child to have no contact with the mother so that the child can at least settle down to a level where she can see the benefits of, and perhaps enjoy a proper relationship with her father and the extended family.
Such an order will of course at this time put significant stress upon the child. She will have her final week of school somewhat disrupted. She will have, it would seem, the period of Christmas which would normally be regarded as the family Christmas time shared with her mother and her siblings, disrupted. It will come at a time where, since the order I have made, the child has had to witness inappropriate conflict between the father and the mother and extended family members.
Such conflict, it is said, was sufficient to cause this nine year old girl to run away when the mother says that she was confronted with overnight contact. That issue, including allegations again by the mother of abuse as against the child, were the subject of investigation by the Department of Families and their report was produced through the subpoenaed material today. Again I see the report, the nature of the complaint and the final unsubstantiated finding at the conclusion of the investigation as again a further indication of the manner in which the mother has sought to influence the direction of this case.
It is never an easy option to remove a child of this age from the care of her primary carer, but in this case I am left with no other option. On an interim basis I propose to order that the child reside with the father. I propose to further order that change over of contact occur today by 2.30 pm.
I propose to order that the mother be restrained from attending the Watson Road State Primary School. The order I propose to make is the mother have no contact with the child unless agreed to by the father. I do that for these reasons. I can only anticipate that the child, Rebecca, is likely to be distressed by having gone to school today expecting to return to the care of her mother and being placed into the care of the father in the only way I can be satisfied a change over will occur appropriately.
I shall leave it to the father to empathically and sympathetically accept the adjustments which the child is being asked to make so quickly, and believe the child's readjustment on this interim basis is likely to benefit from what I would think might be only telephone contact to the mother and siblings, especially over the Christmas period. The mother is not to telephone the child.
I have some concerns about the “sanctuary period” being as long as two months as recommended by Mr George. I make no criticism of his proposal, save that it seems that the issue that needs to be resolved next in this difficult case, in my view, is where the child Rebecca should go to school at the commencement of next year. The parties have not placed before me any particular material upon which I could make such a decision at this stage.
I contemplated whether I should on an interim basis give to the father sole long term responsibility for the care, welfare and development of the child. I do not believe in the circumstances that it would be an appropriate order. What I propose to do is to have this matter returned to me at 2.15 on 14 January 2002 to consider interim school arrangements for R and the further management of this matter including a completion of the trial on parenting issues which I acknowledged in my reasons for Judgment delivered was to be regarded as a part heard trial.
I do not propose to order that Mr T facilitate the arrangements, although it would of course be of some benefit, I believe, to the child if that took place. I do not accept the criticisms again made by the mother of anyone independent who does not agree with her as was Mr T's position. I also regard it as symptomatic of the mother's inability to deal with these issues appropriately that she made very serious allegations about the independent child psychologist effectively physically abusing the child during a counselling session.
For these reasons I find it hard on an interim basis to accept the observations of Dr Cook that the mother does not suffer any psychiatric disorder. That is a matter that may need to be further investigated when issues as to the nature of contact by the child to the mother and any future change of residence back to the mother have to be contemplated. I say that because the mother needs to be aware that the order I am making today is not a final order.
I am not satisfied that she has the current capacity or insight to reflect upon these reasons and to understand that she must change her attitude if she is to continue to play an effective role in the parenting of Rebecca. I hope she can. I have some reservations, notwithstanding the undertaking which Mr Goodwin says his client is prepared to give, that there still could be some difficulties with the child returning to the care of the father and accordingly in addition to the orders which I have already pronounced I propose to order that a recovery order be directed to all officers of the Australian Federal Police and officers of the State and Territory police forces of Australia authorising them for such assistance as they may require and if necessary by force to recover the child and deliver her to the father.
In the hope that it will not be necessary for that recovery order to issue, I propose to further order that the recovery order lie in the Registry. I make it clear that if I am informed that there are any difficulties in recovering the child, I will immediately issue the recovery order. I also make it clear and I want the mother to understand this, that if she does not comply specifically with my order I would expect the child representative to bring such lack of attention to my order back to my attention in this Court so as the mother can understand that a failure to comply with orders of the Court bring with it significant and severe sanctions.
Between now and 14 January I shall leave it to the child representative to consider and ponder what further evidence might be required to enable this matter to be finally determined. I have indicated that I believe there are some issues relating to the mother's psychiatric profile which requires investigation. Having said that, the child representative and the resources of Legal Aid have been substantially expended in assisting this family.
There is a limit to how much they can reasonably and properly incur in the support of a family in conflict like this. The father needs to be aware that this will not be an easy transition for the child. It is likely the child, based on the evidence I have seen, will demonstrate and exhibit some significant behavioural issues. I would expect the father to understand that the child has a very close and loving relationship with her mother. That there is every reason to hope that in the future the mother can play an effective role in the child's life. Whether that be as resident parent or as a significant contact parent is yet to be determined.
Therefore it would be wrong for the father to assume that the effect of this interim order is that the mother is forever removed from the life of the child. That is not the intention of the order. It is not something which, whilst on an interim basis I think is appropriate, I would necessarily even on the evidence before me, regard as an appropriate long term solution.
And finally I should indicate to the mother that when she comes to a Court and when she is required under oath to tell the truth, failure to do so, as is clearly the position in this case, makes it difficult to have the confidence in anything that she says. She now has to rebuild the confidence of the father and have a significant look at her own attitude. A failure to do so is likely to make it more difficult for the Court to have any confidence that her special qualities, which every parent has, are likely to be given an opportunity of being exposed to the child in the future. It is ultimately a matter for her.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date: