CLANCY & SAWYER
[2012] FMCAfam 802
•18 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLANCY & SAWYER | [2012] FMCAfam 802 |
| FAMILY LAW – Interim arrangements for care of children aged 12, 9 & 7 – final orders made following trial in August 2011 – children to live predominantly with father – mother has retained children alleging father has neglected children – best interests – assessment or risk – Rice & Asplund considerations. |
| Applicant: | MS CLANCY |
| Respondent: | MR SAWYER |
| File Number: | ADC 427 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 18 April 2012 |
| Date of Last Submission: | 18 April 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 18 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lee |
| Solicitors for the Applicant: | Franklin Legal |
| Counsel for the Respondent: | Ms Read |
| Solicitors for the Respondent: | Boril Olds Solicitors |
ORDERS
Leave is granted to all parties and their legal representatives to inspect the documents produced in answer to an order made pursuant to 69ZW to the Department of Education and Child Development subject to any privilege claimed. Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses. Leave is granted on the condition that all copies are destroyed at the conclusion of the matter.
The mother’s contravention application is fixed for final hearing before Federal Magistrate Brown on 25 July 2012 at 10:00am NOTING 1 day allowed.
Pursuant to Section 26 of the Federal Magistrates Act the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 16 July 2012 at 9:15am.
The orders made on 29 February 2012 are discharged and the orders made on 12 August 2011 return.
The father file and serve a Response and Affidavit in support and a statement of his financial circumstances in relation to the mother’s application for property settlement within 21 days of today’s date.
In the event the parties are unable to agree on the value of the former matrimonial home they instruct a valuer at the parties joint expense to be conducted no later than 28 days prior to the conciliation conference.
Parties exchange copies of all relevant documents as outlined in Rule 24.04 of the Federal Magistrates Court Rules 28 days prior to the conciliation conference.
IT IS NOTED that publication of this judgment under the pseudonym Clancy & Sawyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 427 of 2010
| MS CLANCY |
Applicant
And
| MR SAWYER |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally immediately following the interim hearing. Given the complex litigation history between the parties and due to the fact that the matter is proceeding further, it is appropriate that the reasons be transcribed.
The reasons have been corrected from the transcript. Grammatical errors have been corrected and an attempt made to make the orally delivered reasons amenable to be read.
Today, I have to deal with interim proceedings concerning three children. The children are [X], who was born [in] 2000; [Y], who was born [in] 2002; and [Z], who was born [in] 2005. The parties to the proceedings are the parents of the three children concerned, Mr Sawyer “the father” and Ms Clancy “the mother”.
I should point out that it is common knowledge between the parties concerned that Mr Sawyer is not [X]’s biological father. [X]’s father is a gentleman by the name of Mr R. But it is, I think, agreed between the parties that to all intents and purposes, Mr Sawyer is [X]’s father in every other sense of the word.
The parties have been in vitriolic disagreement with one another for a significant period of time. These proceedings between the parties first began on 8 February 2010. At that stage, Ms Clancy had moved with the children to a rural area close to [omitted]. As a result of this move, the father commenced proceedings to have the children return to the [omitted] area of Adelaide where it was clear that the children had lived for most of their lives up until that stage.
I ultimately determined that the children should be returned to the Adelaide area pending a more detailed inquiry into what was likely to be the best outcome for them. Regrettably, the process of that inquiry took a long time.
It took a long time because the parties, somewhat uneasily, agreed on arrangements for the care of the children, which it was hoped would obviate the need for a final hearing. These arrangements ultimately came unstuck. As a consequence, it was only in August of last year, following a lengthy hearing, that I made final orders in respect of the three children concerned.
A significant component of the evidence available for consideration at the final hearing was in the form of a number of family reports prepared by a court appointed expert, Mr U, who is an experienced psychologist. Mr U visited the parties’ respective homes on, I think, three occasions each. During these visits each of the children were asked about their preferences, as to future living arrangements and an assessment was made of their relationships with each of their parents and one another.
Ultimately, as a result of that report process and as a result of my assessment of each of the parties in the witness box, I made final orders in respect of the children not very long ago. In fact, less than a year ago now on 10 August 2011.
These orders provided that the children should live predominantly with their father, in the home in which they had lived for much of their lives, and spend time with their mother on alternate weekends during school term, overnight on Wednesdays during school terms, and for regular and equal portions of the school holidays.
I accept that Ms Clancy was not happy with those orders. I provided extensive written reasons as to why I made them. There was no appeal lodged in respect of the orders. The intention of those orders was to finalise arrangements for the care of the three children concerned.
I should also point out that it was an issue at the trial that [Z], the youngest child, suffers from haemophilia. It has long been Ms Clancy’s position that she is better placed to deal with [Z]’s haemophilia than
Mr Sawyer.
It is Mr Sawyer’s position that he is able to care adequately for [Z] and tend to his needs so far as his obviously life-threatening medical condition is concerned. I should point out, however, that during the trial, neither party sought to call an expert medical witness regarding [Z]’s haemophilia, although as I say, it most certainly was a live issue at the trial.
The matter has come back to Court following the judgment. It returns to court about six months later. On 21 February 2012, Mr Sawyer lodged an application in a case. He prepared that himself, and the orders he sought were:
Recovery of children and enforcement of existing orders. I seek urgency.
Along with that application, he filed a fairly brief affidavit. He said as follows:
On Wednesday, 15 February 2012, my ex-partner picked the children up from school for her fortnightly contact and was meant to return them back to school on the morning of 16 February 2012. Children not returned on 16 Feb and have disappeared. Not seen or heard from to this date. I hold grave fears that the mother has fled the state with the children as she has done before and returned by this court.
Major concerns about youngest child with haemophilia, who needs treatment, and according to his doctors, has not been receiving it. School is concerned about welfare of children, as they now are implicated by way of lies by the mother to release the children to her on the Wednesday of 15 Feb. I believe the children are in danger, and I am extremely concerned for their health and safety. I am seeking an urgent recovery order.
Those documents were filed on 21 February. On 22 February,
Ms Clancy filed a number of applications on her own behalf. These included applications to change the parenting orders on both an interim and final basis; an application for property settlement; and contravention proceedings in respect of the August 2011 orders. On an interim basis the mother seeks that the three children should live with her. She filed her own affidavit in support of her application.
It seems to be the position that perhaps Mr Sawyer was frustrated by what had occurred, and had, in that frustration, filed his own application without reference to his solicitor. It also seems to be the case that Ms Clancy had not left the state, but she was living where she had lived for a significant period of time. As such it was hyperbole to say she had disappeared with the children.
It also seems to be fairly clear that the parties’ respective solicitors, who have been engaged in these proceedings for a very long time, were in contact with one another. Anyway, it is, I think, striking that, along with the orders Ms Clancy seeks in respect of the three children, she also seeks orders for matrimonial property settlement.
I should say that it is clear that the parties have been separated from one another for a very significant period of time, although I understand they are not, as yet, divorced. Anyway, Ms Clancy asserted that there needed to be urgent changes to the final children’s orders. The various grounds for changing the orders perhaps, can be categorised as relating to allegations that the children were subject to gross neglect by their father.
These allegations arose in respect of how the children had apparently presented at school on or about 15 February. It is said that [Z] was filthy and had not slept, and also had a sore and swollen foot and bruises all over him. He apparently had a physio appointment at 2 pm that day.
It was also said that [X] had been stepped on by a horse, and the father had neglected to take her to the hospital because he was too drunk to do so. Other criticisms were made in respect of [Y], who apparently was upset and was feeling sick because of gastro.
In addition, it is the substance of the mother’s contravention application which contains some 13 counts, that Mr Sawyer has not attended to [Z]’s medical needs during 2011 and into 2012. The mother’s application and the father’s application were made returnable on 29 February.
Apart from Mr Sawyer’s brief affidavit, which I have read out verbatim, he had not said anything about [X]’s alleged injury to her ankle, or about [Z] and his having been taken to the hospital. His concerns were inchoate and unspecified.
In those circumstances, on the 29th, I thought that, given the mother had raised serious concerns about the welfare of the children, I was duty-bound to put in place some process of those complaints being investigated, and also allow Mr Sawyer to answer the allegations put against him with some precision.
Accordingly, on 29 February, I directed that Families SA provide information about what they knew of the children. I also directed that Mr Sawyer file a response and an affidavit in support. In the short-term, although I had some concerns about the unilateral nature of
Ms Clancy’s action, I determined that the children should live with her in the short to medium term.
It is of some moment, I think, that the mother, notwithstanding her criticisms of Mr Sawyer, was prepared to acquiesce to the children seeing their father on alternate weekends, notwithstanding her view that he was basically incapable of providing for their needs.
On 27 March, Mr Sawyer filed a lengthy and comprehensive affidavit. It deals with the issue of [X]’s injury to her left foot. I now have a report from the Children’s Youth and Women’s Health Service that says that [X] was at the hospital on 15 February. The clinical details are that a horse stepped on her left foot, query fracture. The diagnosis following is, that no fracture or dislocation is identified. Overall, alignment of the limb is said to be preserved.
Associated with that, is a letter from a Dr N, dated 5 March 2012 who examined [X] and he said, “In my opinion, she had no residual foot injury and there is not a case for wearing a moon boot at this stage.”
It seems common ground that [X] has, as many children do, particularly girls, and I do not mean to be sexist – of her age, living in a rural area, an interest in horses. She has a horse. She is a lucky young girl.
Whilst she was with her horse on somebody’s property, the horse and it is trite to say it but I will say it nonetheless, horses are large animals. Anyone who has had anything to do with horses knows that they are large animals and sometimes unpredictable. The horse stepped on her foot. That was unfortunate but it was an accident. I have no doubt it was an accident.
Anyway, fortunately, [X] did not suffer any serious injury. Ms Clancy, it seems, having learnt about this incident did not see fit to discuss it directly with Mr Sawyer or for the parents to have any dialogue about it. Rather, she assumed the worst and assumed that this accident was in some way attributable to Mr Sawyer.
In terms of [Z], I have not been provided with any extensive assessment of [Z]’s haemophilia. I know he suffers from haemophilia and I suppose, I can take judicial notice of the fact that if anyone who suffers from haemophilia suffers a bleed, that can potentially have catastrophic consequences. I have been directed to medical records that the wife’s solicitor has subpoenaed. On 15 February, there is a physiotherapy note.
I note, of course, it is a physiotherapy note. It is not a note from a haematologist, it is not a note from a medical practitioner. [Z] apparently came with right or left ankle swelling. He presented at 1400. He was sent to the haemophiliac clinic.
The physiotherapist has reported a history from the mother which includes her report that the father does not give factor therapy which is the prophylactic drug. [Z] attended the physiotherapist in a wheelchair. His leg and ankle was swollen and tender.
He had multiple bruises and dirty feet. Now, what that means is difficult for me to assess. I am not concerned that a child of [Z]’s age had dirty feet on a day in mid-February. How he suffered his bruises, I do not know. The note does not say and nor does Ms Clancy. Nor do I know what are the inherent dangers of this bruising for [Z].
Further, what is [Z]’s propensity to bruise is not the subject of any evidence before me. In these circumstances, I have to make some sort of assessment of the risk that is represented to these children of them returning to the regime which I put in place after some thought last year.
The father denies the gravamen of the contravention claims made against him. It is also the case and I ask Ms Lee specifically about this, whether she could point to some evidence or document indicating that [Z] had come to actual harm as a result of his father’s alleged neglect.
She is not able to point to any such document. Her and her client’s case, to a very large extent, in my view, rests on conjecture. She has taken me, that is, Ms Lee has taken me to subpoenaed documents from Families SA. Families SA are regrettably enmeshed in this case.
The children have been interviewed by workers. The department has not as yet taken any action albeit having been involved around about the time of [X]’s injury and [Z]’s presentation at hospital. The children have made complaints about their father. It seems the father denies the gravamen of those complaints. The mother, it would seem, has only learnt about them today.
The father asserts that the mother has, in effect, tried to bribe [X] to say things and it would seem to be the case that there is some ambivalence about what the children have said on different occasions to different people. That, I should say, was also the experience of Mr U when he wrote his three family reports in the earlier proceedings.
It is also said that the father has behaved in a violent fashion towards the mother. It is said that the police are investigating this matter. In particular, Ms Clancy asserts that the father drove after her vehicle in a violent fashion on 20 February and put her life at risk. These matters were reported to the police and Mr Sawyer is said to be liable to being charged with dangerous driving, endangering life or something of that kind.
Again, Mr Sawyer denies the gravamen of those allegations but concedes that he did come into contact with the mother whilst both were driving and he was anxious to speak with her about the children concerned but no accident happened. He says he has not been charged. He doubts that he will be.
As I have pointed out to the parties in the past, in the context of earlier interim proceedings, it is impossible for me to ascertain the truth or otherwise of many of the allegations each makes about the other. But nonetheless, I still have to make orders which I think are in the best interests of these three children, notwithstanding the limited nature of the evidence before me.
In August of 2011 I determined that [X], [Y] and [Z]’s interests would be best served by living mainly with their father. At that stage I had extensive evidence available to me. The mother, I suspect, will never accept that decision.
A comparatively short time later the mother asserts that the father has neglected the children. An allegation which is hotly contested by the father. At this stage, I am not in a position to indubitably resolve this controversy.
Rather what I must do is, on the basis of the provisional evidence available to me make some assessment of the degree of risk the father’s level of care represents to the children. If I am of the view that the risk he represents to them is one which it would be unacceptable for the court to assume, the children should not be returned to Mr Sawyer’s care.
On the basis of the evidence currently before me, I am not of such a view. I do not think that it would constitute an unwarranted risk, to the children, if they return to their father’s care. I found Mr Sawyer to be the better placed of the two parties, to provide the predominant home for the children, following the hearing last year. In addition, at this stage, there are issues raised which relate to the rule in the case of Rice & Asplund.
In layman’s terms, what that rule is, is that the Court should not engage in endless inquiries into what is best for a child or children following a final determination unless there has been some significant or major change of circumstances so far as the child or children are concerned, it being the case that further proceedings of themselves may represent a danger to the best interests of children.
At this juncture, I have come to the view that it is premature for me to make a ruling in respect of Rice & Asplund. But I am concerned that the mother ostensibly seizes on every possible criticism she can find of Mr Sawyer to launch another round of proceedings. However whether there is moment in her criticisms, must await the determination of her contravention application. Also, steps must be put in place to deal with the mother’s application for property settlement.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 18 April 2012
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