Emmett and Emmett

[2007] FamCA 133

FAMILY COURT OF AUSTRALIA

EMMETT & EMMETT [2007] FamCA 133

FAMILY LAW - CHILDREN – Recovery Order – Children’s resistance

APPLICANT: Mr Emmett

RESPONDENT: Mrs Emmett

FILE NUMBER: TVF 2766 of 2000

DATE DELIVERED: 6 February 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 6 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Bowrey, Wilson Ryan Grose

SOLICITOR FOR THE RESPONDENT: Ms Harrington, Harrington Family Lawyers

INDEPENDENT CHILDREN’S LAWYER: Mr Grant, Grant & Associates

FRIEND OF THE COURT: Mr Carter, Carter Naughton Rice

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994, live with the Father.

IT IS FURTHER ORDERED

1. That a Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

1. That such persons are authorised and directed to find and recover the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994, and for that purpose, with such assistance as they require, and if necessary by force, to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the said children may be found.

1. That the said children are to be delivered to the Father at H, in the State of Queensland, or to such other address as agreed to between the person executing the Recovery Order and the Applicant.

1. That the Recovery Order remains in force for a period of six months.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the Mother have such supervised contact at Relationships Australia as can be agreed to between the parties and accommodated by Relationships Australia, or such further or other contact as may be mutually agreed to between the parties.

IT IS FURTHER ORDERED

1. That pursuant to Section 91B of the Family Law Act 1975, the Director-General, Department of Child Safety, is requested to intervene in these proceedings in relation to the children, J, born in August 1990, R, born in November 1992, and A, born in June 1994.

1. That the Registry Manager is to notify the Director-General, Department of Child Safety, of this order.

1. That upon request from the said Director-General, Department of Child Safety, the Registry Manager permit inspection of the Court file by a person authorised by the Director-General, Department of Child Safety, and copying of any part of it to enable consideration of the request to intervene in the proceedings.

1. That the matter be listed for final hearing in Townsville for nine (9) days commencing 12 June 2007.

IT IS NOTED

(a)That the matter is listed for interim determination on 29 March 2007 and, given the allocation of final hearing dates on 12 June 2007 to determine the issue of residence, it is not likely that the Court will entertain any change to the interim living arrangements of the children on 29 March 2007.

(b)That the Court may consider the terms and conditions of any ongoing contact between the children and the Mother on 29 March 2007.

(c)That the matter will be listed for a Pre-Trial Conference at the conclusion of any interim hearing on 29 March 2007.

IT IS REQUESTED

1. That the legal representatives for the parties and the Independent Children’s Lawyer exchange in writing a summary of the matters in issue prior to 29 March 2007 and confer to reach agreement and endeavour to narrow the issues to be referred to the Trial Judge.

IT IS FURTHER NOTED

(d)That Mr Carter was given leave to inform the children of the decision made by the Court today.

(e)That Mr Carter be at liberty to secure copies of relevant documents and reports and provide those copies to any experts intended to be used for the purposes of ascertaining the competency of the children, should Mr Carter determine that he should continue to accept instructions directly from the children.

IT IS FURTHER ORDERED

1. Pursuant to s65DA(2) and s62B, 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.

FAMILY COURT OF AUSTRALIA  AT BRISBANE

FILE NUMBER: TVF2766/2000

MR EMMETT

Applicant

And

MRS EMMETT

Respondent

REASONS FOR JUDGMENT

1. This is a most problematic matter relating to the placement of three children, J, born in August 1990, R, born in November 1992, and A, born in June 1994.

2. It is clear from the material placed before the Court to date, and from the submissions made by and on behalf of the various interested parties, that this is a case with a long and complex history, which has included vast time and effort applied by a vast array of welfare workers, social scientists, experts, lawyers, Court systems and the like, and sadly, there continues to be great ongoing conflict surrounding this family and, in particular, the children.

3. The matter was the subject of hearings and determinations in September of 2001, which resulted in orders being made by the Court that the three children should reside with the father, that the father should have sole responsibility for the day to day care, and long term care, welfare and development of the children, and that the children's contact with their mother should be limited and supervised.

4. As I have said on previous occasions, the mother discontinued availing herself of that supervised contact regime some years ago.

5. The mother subsequently filed proceedings, I believe in or about 2004, and Justice Monteith made orders in 2004 and 2005, which had the effect of affirming the decisions made by the Court in 2001.  The mother appealed against his Honour's decision and the Full Court handed down its determination in November-December of last year, upholding the mother's appeal and directing that the matter be listed for final hearing in Townsville by a Judge other than Monteith J, and also directed that any interim applications, and the appointment of a children's representative, be expedited.

6. The matter came before me on the mother's application for interim orders for residence in her favour.  As I indicated on that occasion, I took the view that, having regard to the ages of the children, it was essential that their wishes and aspirations be ascertained and taken into account, and that for that purpose and others, it was essential that the Court, the parties and the children had the assistance of an independent children's lawyer.

7. I made that appointment and listed the hearing of the mother's application for interim orders on 29 March 2007.

8. This is the fourth occasion the matter has been before me in a matter of three weeks.  On the first occasion, the Court was presented with a letter, purportedly from the child, J, where he made statements in support of his mother's application and against his father.  I expressed concerns about that matter on that occasion.

9. When the matter was next before the Court, each of the three children had, in fact, provided affidavits contesting the matters set out in an earlier affidavit by the father, and I have expressed my significant concern about the direct involvement of the children in that way, and the filing of affidavits in contravention of the Family Law Act and the Family Law Rules.

10. Shortly after the matter was first before me, the children removed themselves to the home of the Ds, who are parties quite clearly aligned with and supportive of the mother, and the children have remained with them since that time. 

11. The father filed an application for a recovery order, which was before me last week, and that application was adjourned to today's date and further orders were made by me which, in essence, were a request to the Legal Aid Office of Queensland to expedite the appointment of an Independent Children's Lawyer and to engage someone who might be in a position to assist the Court on the further return date of the father's recovery application.

12. Mr Grant appears as the independent children's lawyer today, and the parties and the children and this Court are now well served by a very experienced, legal practitioner in the form of Mr Grant.

13. Not surprisingly, given the magnitude of the issues and the material which has emerged in this case, Mr Grant has had only limited opportunity to come to grips with the matters in issue.

14. In relation to the recovery application of the father, he has ascertained that the current placement of the children with the Ds is no longer an option.  The options available to the Court are to grant the recovery application, or to refuse the recovery application. 

15. On previous occasions and on this occasion, submissions have been made both opposing the recovery order application and in support of an immediate placement of the children with the mother.

16. As on previous occasions, those oral and written submissions purport to highlight deficiencies in the investigation process undertaken prior to the 2001 decision and thereafter.  

17. It is my intention to set this matter down for a final hearing on 12 June 2007.  The matter will be listed for nine days on that occasion.

18. As I have indicated on previous occasions, it is impossible, unwise and inappropriate for the Court on interlocutory applications to make findings of fact and to make determinations of matters in issue. 

19. It is not open to this Court to accept everything that the mother has said, or that has been said on her behalf, any more than it is open for this Court to accept what the father says about the mother.  That is why the matter will be listed for nine days.

20. Included in that lengthy review will be an assessment, if it remains relevant, of the validity of assessments of experts in 2001, and the validity of the assessments of those who have reviewed the assessments of those in 2001. 

21. I am informed that the matters argued on behalf of the mother are contested by the father, and that is really all I need to be informed about at this stage.  As I say, it is not my task to determine the validity of Dr K's view, or the validity of Professor M's assessment, or the validity of in-house/out-house assessments of what did, or did not, happen in the past.

22. On a very broad approach, without being drawn into the merits of what has, or has not, been done in the past, it seems to me from a reading of the material that the primary issues at the hearing in 2001 appear to have been whether:

    (a)The children were the subject of physical abuse at the hands of their father; or

    (b)The children were emotionally abused and/or manipulated by their mother, or some or all of them were in some form of enmeshed relationship with their mother; and

    (c)What were the children's stated wishes at that time and should they be acted upon.

23. I can only gather that, back in 2001, the evidence pointed towards determinations against the mother and towards a rejection of whatever the children's stated wishes were at that time.  The orders made in September 2001 certainly reflect that, in that they require the children to reside with the father, and the orders also vested in him the sole parental responsibility and severely limited the mother to some form of supervised contact.

24. That decision remains the order of this Court.  I gather from what is being said, particularly on behalf of the mother at this stage, that the primary issues in 2007 will be largely the same.  That is, have the children been in the past, and do they continue to be, at risk of physical abuse at the hands of the father?  Or, have they continued to be manipulated by the mother, or by others on her behalf?  And thirdly, what are the stated wishes of the children, and should they be acted upon?

25. The mother, as I say, argues flaws in the 2001 process.  The father wishes to convince the Court that the mother is erroneous in that assertion.

26. Of course, events and the passage of time have overtaken much of what was assessed in 2001, and whilst there may be some relevance to a review, I suspect the primary focus of the trial Judge in June will be to determine matters as they stand in 2007. 

27. As to these interlocutory processes, having put in place proper legal representation for the children, I remain concerned that, at the same time, the children have been encouraged or empowered to seek out independent legal advice.  So that this Court may be faced with the prospect of the children being represented by Mr Grant, and Mr Grant making assessments having regard to his obligations to the children and the Court, and yet further representation directly of children aged 16, 14 and 12, and I can envisage all sorts of difficulties for everyone involved.

28. I simply reiterate, in 30 years of experience, 16 years of it on the Bench dealing with all sorts of horrible children's cases and family cases, I have never encountered a case where the issues relating to the children's placement have been argued both by an independent children's lawyer and by a lawyer retained directly by the children.  It is a hazardous exercise, it is one which leaves children exposed to altogether inappropriate, indirect involvement in litigations between their parents. 

29. I suspect that the reason I have not encountered such an exercise in 30 years of practice in family law is the very best indication of the folly of such a process, and I encourage all involved to exercise extreme caution before becoming involved in such an exercise, and I am well satisfied that Mr Carter is exercising such extreme caution at this time.

30. In any event, in terms of the interlocutory applications, they have been frustrated, affected, as I say, by the children running away when they apparently became concerned about the process being conducted by this Court.  I am satisfied that, on the information provided to me, including the e-mail received from the Ds, which I should admit into evidence and mark Exhibit 1, that the children have been inappropriately, directly involved in the litigation, in a sense as combatants against their father, and it is clear that they have come under the influence of people most clearly aligned to the mother, who swear the issue on questions of the father's abuse and the mother's exoneration of abuse.

31. But perhaps the most important aspect of the e-mail from the Ds is that they no longer present a sanctuary, or an option, for the Court at this time, in that, not surprisingly, they feel unable to continue to accommodate these three teenage boys, having regard to their own circumstances and responsibilities.

32. Accordingly, the issue for the Court today is whether it should make, or refuse to make, the recovery order in the context of pending interim determinations which will proceed on 29 March 2007, in a matter of weeks, and in the context of a pending final determination of the issues between the parties in a matter of but a few months at the beginning of June.

33. The effect of granting the recovery order would be to reinstate orders which have now been in place for five to six years.  These boys have been living with their father for the last five to six years.  What seems apparent, from the information available to the Court at this time, is that the boys appear to be doing quite well, if not very well, at school.

34. I gather, from the information available to me, that they show all the signs of being well cared for in a physical sense.  I think it was even the Ds who described them as "delightful young men".

35. Whatever be the challenges that have fallen for the children and their father over that last five years, as an overall, broad assessment in terms of whether or not I should decline to make this recovery order, it would seem, on the face of it, that despite those difficulties, the arrangements ordered by the Court in September of 2001 appear to have served the boys at least reasonably well. 

36. It is not appropriate that this Court stand idly by and allow children to dictate to parents and Courts and take the law into their own hands.  We leave responsibility for children in the hands of their parents.  In this case, the father has been vested with the responsibility for the day to day care of these children by a Court.  Until and unless that is determined as inappropriate by the Court in June, then he has responsibility for the care of the children.

37. When there is a breakdown in that system, parents come to the institutions that have been created by our community to properly regulate and manage the welfare of children.  In this case, if I decline to make the orders sought by the father, I am faced with the prospect quite literally that the children might end up on the street, or may end up in care.

38. The question of the children’s placement has been previously determined.  It has not been determined otherwise to this point.  There are, necessarily, issues of concern about the prospect of reversing what has been in place for five or six years as an interim measure prior to the final hearing, which is to shortly take place.

39. On the face of the issues as they stood in 2001 and 2007, a placement with the mother is also one not without risks, as is a placement with the father on the mother's case.  So there is no option without risks.  A failure of this Court to properly respond to the father's application would, in my view, be an abrogation of the responsibilities this Court has to parties and their children.

40. It is always a difficult balancing act between empowering children to have a say in their future, and relieving them of the responsibility, and requiring them to take responsibility for such difficult decisions.  In my view, this case is now quite properly before the only institution we have in Australia to deal with such difficult issues.  The interests of the children have been properly met in the usual way by the appointment of an independent children's lawyer.

41. These three children will now have the benefit of a capable, and one of the most experienced, independent children's lawyers in Queensland, so the Court can be satisfied that they will be well served in that regard.

42. The time has come, in my view, in this case, to take the power, to take the responsibility away from these children, and invest it in an institution designed to properly address their welfare.  And, in the meantime, like millions of other children in this country, they will have to do what they are told by their father and by this Court, and take themselves out of the battle until such time as their parents and this Court can have the opportunity to properly present cases and be properly heard.

43. I propose to reinstate the effect of the existing orders.

44. I propose to make a recovery order, and I trust that the authority of this Court will not again be challenged by these children, and that people will allow due process to run its course.  In due course, the Court and a Judge, having the benefit of all of the evidence and all of the material and arguments, will be in a position to make a considered decision for the welfare of these children.  And, in the meantime, the children should return to their home, return to their schools, and be allowed to get on with being young children and concentrating on their schooling, rather than concentrating on litigation between their parents.

45. I trust that the father will fully appreciate that the spirit of this order really requires him to avoid any question of review or retribution of what has happened.  He now needs to ensure that the return of these children to his household is as well managed as possible, and avoid taking issue with any of the children about what has happened in the last two or three weeks.  It is incumbent upon him, as it is incumbent upon the mother, to allow this case to run its proper course without any inappropriate pressure being brought to bear on any of these children.

1. No doubt, those matters would come to the notice of the Court during the review process, and it may well be that, with the passage of time, this Court will determine, on all of the evidence, including evidence relating to the wishes of the children, that there needs to be a change of residence.  Well, the father needs to allow that to unfold in a proper way, as does the mother.

2. In all the circumstances, it appears regrettably necessary that I formally issue a recovery order in this case, because it may well be that the authorities will need to be enlisted to ensure that these orders are carried out.   I therefore propose to make a recovery order in terms of the father's application filed 24 January 2007.

3. I propose, until 29 March, as I have ordered previously, to order that the mother's contact with the children be such contact as may be arranged between the parties with Relationships Australia, or alternatively, upon such other terms and conditions as may been agreed to between the parties. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  2 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as EMMETT & EMMETT