Garning and Director-General, Department of Communities, Child Safety and Disability Services & Ors (Discharge of Return Order)
[2012] FamCA 565
•6 July 2012
FAMILY COURT OF AUSTRALIA
| GARNING AND DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES AND ORS (DISCHARGE OF RETURN ORDER) | [2012] FamCA 565 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention Proceedings – where return order made requiring children to return to Italy – where mother appealed to the Full Court – where appeal dismissed – where the Central Authority applied for orders giving effect to return order – where such orders made – where the children were subsequently secreted – where, upon recovery of the children, order made placing the children with a person nominated by an officer of the Department of Communities, Child Safety and Disability Services (“the Department”) pending their return to Italy – where the children were subsequently placed with a foster carer – where the children, through their litigation guardian, have appealed to the High Court of Australia – where the mother applies pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 to discharge the order placing the children into foster care – where the mother seeks orders that the children live with her pending the outcome of the High Court appeal – where there is evidence from the Department indicating that the children are suffering substantial distress as a result of being removed from the care of their mother – where all of the children have repeatedly expressed a desire to return to live with their mother – where there have been threats of self-harm by at least one of the children – where orders made that the children live with the mother and spend time with the father pending the outcome of the High Court appeal. FAMILY LAW – PRACTICE AND PROCEDURE – where the maternal great aunt sought leave to be appointed the children’s case guardian – consideration of r 6.08, Family Law Rules 2004 – where the children’s case, as proposed by the maternal great aunt, is essentially identical to the mother’s – where the children’s right to be heard was afforded by the material already before the Court – where there is a distinction between ensuring children are heard and their participation in proceedings – where the children were being heard – where application by maternal great aunt to be appointed case guardian dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Convention on the Civil Aspects of International Child Abduction |
| De L v Director General NSW Dept of Community Services (1996) 187 CLR 640 |
| APPLICANT: | Ms Garning |
| FIRST RESPONDENT: | Director-General, Department of Communities, Child Safety and Disability Services |
| SECOND RESPONDENT: | Mr V |
| INTERVENOR: | Ms B |
| FILE NUMBER: | BRC | 1387 | of | 2011 |
| DATE DELIVERED: | 6 July 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 6 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr J. Brasch |
| SOLICITOR FOR THE APPLICANT: | Barry Nilsson Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr J. Linklater-Steele |
SOLICITOR FOR THE FIRST RESPONDENT: | Crown Law |
COUNSEL FOR THE SECOND RESPONDENT: | Dr M. Wilson |
| SOLICITOR FOR THE SECOND RESPONDENT: | Porta Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr T. North SC |
| SOLICITOR FOR THE INTERVENOR: | Nicholes Family Law |
Orders
IT IS ORDERED THAT
The following Applications and Responses be dismissed:
a.Initiating Application filed by the mother on 6 June 2012;
b.Application in a Case filed by the Intervener on 13 June 2012;
c.Application in a Case filed by the First Respondent on 14 June 2012;
d.Response filed by leave by the Second Respondent on 15 June 2012; and
e.
Application in a Case filed by the Intervener on 2 July 2012 seeking orders pursuant to r 6.10, Family Law Rules 2004 and pursuant to
s 92, Family Law Act 1975 (Cth).
Order 1 of the Form 2D “Application to discharge return order” filed by the Applicant Mother on 26 June 2012 is dismissed.
Otherwise, the said Form 2D Application be listed for further hearing at a date and time to be advised but subsequent to the delivery of Orders and Reasons for Judgment by the High Court of Australia in the Applicant’s appeal to that Court.
UPON EACH AND ALL OF THE FOLLOWING UNDERTAKINGS BY THE MOTHER, given without admission, to:
a. Refrain from making any comments to the media (save for “no comment” or such other comment to declining effect), or to accept any solicitations for media interviews be they “on” or “off” the record and not to encourage or facilitate the children doing same;
b. Remain living with the children at her usual residential address known to the Court;
c. Use her best endeavours to not to permit or otherwise allow the children access to Facebook pages “…1” and “…2” and use her best endeavours to ensure no other person allows or facilitates the children having access to these pages.
d. To:
i.Not discuss the proceedings with the children other than they will live with her until the parties agree or the court orders otherwise;
ii.Not discuss with the children any allegations made by the mother against the father in the current proceedings or in any other proceedings;
iii.Use her best endeavours to prevent anyone else, in particular, family members, having discussions with the children as referred to in (i) and (ii) above;
iv.Not denigrate the father to or in the presence of the children and use her best endeavours not to allow any other person to denigrate the father or in the presence of the children.
e. Not remove or attempt to remove the children from the Commonwealth of Australia, nor will she permit, encourage or allow anyone else to do so.
f. Not permit or authorise any other person, save for Ms B, to take the children to and collect the children from their schools.
g. Not permit or otherwise allow the children to have any form of contact with the maternal grandmother, Ms X Garning, or the maternal great-grandmother, Ms H.
h. Advise Ms F (an officer of the Director-General, Department of Communities, Child Safety and Disability Services) or such other person as nominated by either the Director-General, Department of Communities, Child Safety and Disability Services, or Ms F (such nomination to be in writing), if it is proposed that the children will be living away from their current residence, known to the Court, for more than 24 hours.
IT IS ORDERED, UNTIL FURTHER ORDER, THAT
Paragraph 2 of the Orders of Justice Forrest made on 14 May 2012 be discharged and the children E V (born … June 1997), C V (born … August 1998), D V (born … December 2001), and L V (born … May 2003) (“the children”) be returned to the care of the mother.
Changeover of the children from their foster carer to the mother to occur no later than 7:00pm, 6 July 2012.
That the father spend time with the children from after school on Friday to 5:00pm, Sunday on the weekends commencing:
a.13 and 20 July 2012; and
b.3 and 10 August 2012.
UPON NOTING that, upon securing appropriate funding, the First Respondent has so consented, the First Respondent do all such things necessary so as to transport the children between the mother’s residence on the Sunshine Coast and the current residence of the father at a named suburb of Brisbane, so as to facilitate time between the children and their father.
The father have telephone contact with the children between 7:00pm – 8:00pm, each Wednesday.
The mother secure non-reportable therapeutic counselling for the children.
That until further notice, the mother report to Ms F, (an officer of the Director-General, Department of Communities, Child Safety and Disability Services) or such other person nominated by either the Director-General, Department of Communities, Child Safety and Disability Services, or Ms F (such nomination to be in writing), by telephone on Monday of each week or such other day as nominated in writing by Ms F or other nominated person.
On Friday, 27 July 2012 and as and from Friday, 17 August 2012, until further notice, the mother report to the Y Child Safety Service Centre in person on Friday of each week and before 4:00pm on such day or such other day as nominated in writing by Ms F or such other person as nominated in writing by the Director-General, Department of Communities, Child Safety and Disability Services.
IT IS FURTHER ORDERED THAT:
Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), the First Respondent shall have leave to publish an account of these proceedings, namely pages 102 and 103 of the Affidavit of Mr T filed 4 July 2012, to the Commissioner of the Australian Federal Police and all such police officers and other authorised persons as he might reasonably permit or authorise.
The parties have liberty to apply, on the giving of two working day’s notice to the other parties, with such hearing being listed, if possible, before Justice Murphy.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garning & Director-General, Department of Communities, Child Safety and Disability Services and Ors (Discharge of return order) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1387 of 2011
| Ms Garning |
Applicant
And
| Director-General, Department of Communities, Child Safety and Disability Services |
First Respondent
And
| Mr V |
Second Respondent
And
| Ms B |
Intervenor
EX TEMPORE
REASONS FOR JUDGMENT[1]
[1] As indicated during the course of the hearing, these corrected Reasons consolidate Reasons given in respect of a preliminary issue with those given on the substantive issue.
A preliminary issue arises in relation to an application by the mother of four children pursuant to regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 (“the Hague Regulations”). The essence of the application filed by the children’s aunt is that they be participants in the proceedings through the agency of their aunt as their case guardian. That application is supported by the mother and opposed by the Central Authority and the father.
It is, of course, fundamental to the interests of justice that persons whose rights are affected, or might be affected, by litigation should be heard. The written outline of argument of argument of senior counsel for the aunt, Mr North SC, cites in that respect the decision of the Full Court of this Court in Harris & Harris; Re Banko Pty Ltd & Ors (1980) FLC 90-906 at 75-724 “…such person, as a fundamental principle in natural justice, would have been entitled to approach the Court, put his case and be heard.”
There can be no doubt that the orders sought in the substantive proceedings today significantly impact upon four children, aged between 15 and nine years of age. Their rights are affected generally and, more specifically, in terms of the substantive orders sought by the mother and opposed by the Central Authority.
I will, for the sake of completeness, set out the terms of the orders sought in this respect by the aunt:
1.Pursuant to rule 6.10 of the Family Law Rules 2004, the Applicant be appointed as Case Guardian for the children in this matter, [E V] (“[E]”) born … June 1997 and aged 15 years, [C V] (“[C]”) born … August 1998 and aged 13 years, [D V] (“[D]”) born … December 2001 and aged 10 years and [L V] (“[L]”) born … May 2003 and aged 9 years (together referred to as “the children”).
2.That pursuant to Section 92 of the Family Law Act 1975 and Rule 6.08 of the Family Law Rules 2004, the children, by their Case Guardian, be granted leave to intervene in the proceedings brought by the Mother…in her Application under Regulation 19A of the Family Law (Child Abduction Convention) Regulations 1986 filed 26 June 2012;
3.Such further or other Orders as this Honourable Court deem met.
The parameters of the substantive dispute are, in my view, a very important contextual element in the determination of this preliminary question. In that respect it should also not be forgotten that there is currently before the High Court an appeal in respect of an earlier decision of this Court that may have some relevance to the issue under consideration.
More particularly it was accepted for present purposes by all at the bar table on the last occasion that this matter was before me that the effect of the appeal before the High Court being successful is that an application for return of the children would be referred back, as it were, to this Court to be heard and determined with the possibility, as a result of that successful appeal, of conditions attaching, for example, in relation to representation of children. If the appeal before the High Court is unsuccessful the current return order would remain in full force and effect. Thus an application for return of the children is either live or will be heard in either event.
It is perhaps those considerations which inform the application by the mother to seek orders pursuant to regulation 19A on what I will call an interim basis. It seems to me that orders sought in those terms are appropriate.
Thus, as it seems to me, the preliminary issue can be seen to become a determination of, broadly, a right to be heard by case guardian in respect of an application to return the children to their mother’s care, or alternatively their aunt’s care, by reason of the discharge of that part of the order of Forrest J placing them in what I will call foster care.
In my view the appointment of a case guardian referred to within the Family Law Rules 2004 (Cth) (“the Rules”) of being in respect of a child or a person under a disability, can be seen to provide for the interests of a person under a disability, in having their case presented and heard appropriately and for their rights to be protected in circumstances where, absent that appointment, their rights may be at risk of not being protected or where such a person may not be heard, or not heard adequately by reason of their legal incapacity.
Here there can, in my view, be no doubt that the voices of the children are being heard. They are loud and clear in all of the material I have before me, even if the aetiology, differences, and changes in their views might be a matter for deeper investigation in other proceedings.
The impact on the children’s rights and their opportunity as minors to be heard within these proceedings is, in my view, afforded by the material currently before the Court.
The case sought to be agitated on behalf of the children is precisely the same as that sought to be agitated by the mother. The evidence sought to be led in respect of the children’s separate representation by a case guardian can, in my view, be seen to be a mirror copy, effectively, of the material in support of the mother’s application. Reference was made by Mr North SC to the decision of the High Court in De L v Director General NSW Dept of Community Services (1996) 187 CLR 640, and indeed, it is true that some comments made by the justices in that decision, and in particular, the majority, might be seen to afford support to the notion that children might be separately heard.
It is, however, in my view, vitally important to note that, in the circumstances of that case, the facts were such that if the children were not heard, as it were, then evidence which they might seek to lead might not otherwise have been before the Court.
In my view, that is a significant and important distinction. In the decision of Re HB (Abduction: Children’s Objections) (No 2) [1999] 1 FCR 331 at 333-334, Baroness Hale said as follows in a case the facts of which might be seen to bear a troubling and remarkable superficial similarity to the facts of this case:
One feature of that situation, which the Court of Appeal found especially troubling, was [the child’s] status as a litigant in the proceedings. The father was legally aided in the proceedings before me, but now that [the child] has her own legal representation he is acting in person.
Butler-Sloss LJ, who is the most senior judge specialising in family law in this country said ([1991] 1 FCR 398 at 406): “She is running now, not only her own case but what she perceives to be her father’s case, he having left the running of the litigation to her.” Butler-Sloss LJ expressed her worry (at 406):“…the father has left her to fight the battles and does not seem to have the understanding or sensitivity to perceive the unsuitability of the present arrangements in the litigation.”
He has maintained that attitude before me, stating that this is not his battle, but a battle between the children and their mother. However, at the same time he persists in making complaints against the mother, both on his own and the children’s behalf, which make it quite clear, not only that it is very much his battle, but also that he has done nothing to soften and may, perhaps, have done much to harden [the child’s] attitude over the past year.
Children, of course, have the right to a voice in proceedings concerning them, especially where their own views form such a crucial component in the issues before the court. But a voice is very different from the right to participate in the proceedings, instructing one’s own lawyer as if one were a fully adult person…
Her Honour’s comments can be seen to have been specifically directed to the issue of the representation of the child in that case, but the closing comments in the passage just quoted seem to me to also be directly apposite, with respect, to the application for the appointment of the children’s aunt as their case guardian.
In my view the application for the appointment of the aunt as a case guardian should be refused.
So too, and for similar reasons, it seems to me that the application pursuant to s 92 of the Family Law Act 1975 (Cth) (“the Act”) for the children to intervene via their case guardian in the proceedings should also be refused.
However, a separate issue, in my view, arises. Both the mother and the aunt in their respective applications (albeit that the latter application is ostensibly made on behalf of the children) posit the aunt as a possible carer of the children if the application pursuant to reg 19A is ultimately successful before me. The facts and circumstances that pertain to the possibility of that order seem to me to point to natural justice requiring the aunt to be heard on her own account in respect of any such application.
In my view the power of the Court contained within reg 15 of the Hague Regulations is sufficiently wide to permit such a course of action. In particular reg 15 provides:
(1)If a court is satisfied that it is desirable to do so, the court may, in relation to an application made under regulation 14:
(a) make an order of a kind mentioned in that regulation; and
(b)make any other order that the court considers to be appropriate to give effect to the Convention; and
(c)include in an order to which paragraph (a) or (b) applies a condition that the court considers to be appropriate to give effect to the Convention.
The power contained within reg 15 is referenced to applications made under reg 14. Regulation 14 does not contemplate, in terms, an application by a person other than the Central Authority or an applicant or respondent to return proceedings. But, in my view, the power contained in subparagraphs (b) and (c) of reg 15 in particular is sufficiently wide so as to contemplate the intervention by a party whose rights can be seen to be affected, or sought to be advanced on their own account, in respect of the proceedings.
In circumstances where, in the troubled history of this case, there is a possibility of the Court ordering that part of the return order be discharged so as to facilitate the children’s removal from foster care and a mooted order is them being placed in their aunt’s care, it is appropriate for her to be represented in the proceedings in her own right, and I so order.
ORDERS DELIVERED
The duties and responsibilities of this position hang heaviest when making orders in respect of children. They hang heaviest of all when the voices of children within proceedings are filled with pain and anguish as, it should be said, they almost invariably are.
Mostly, those voices of pain and anguish are directed plaintively, towards something wholly contrary to that for which their parents and families respectively contend. Mostly, children plaintively plead for their parents to stop fighting and, above all, they plead to be allowed to enjoy the freedoms of childhood; to enjoy the exploration of the world on their own terms, untrammelled by the responsibilities and difficulties that come to us all with adulthood. They yearn, when older, for the sometimes difficult path of adolescence to be tread with loving support from the people they value most, the most important people in the world to them, their parents.
Parents and others who litigate about their children deny to them those freedoms; indeed, rights. But worse, within that litigation, parents or others who subject children to pressure do them serious and significant harm, harm that is exacerbated if children drawn into their parents’ battles, are subjected to public scrutiny. Those who do that to children should hang their heads in shame.
The litigation between these parents has drawn them into the battle in the most reprehensible of ways and, tragically, the decision that must be made today occurs against that background, and the almost inevitable consequence of a picture of escalating concern about the welfare of four little girls.
The central issue before me, simply put, is should these four girls remain in foster care, pending the resolution of a High Court appeal and its consequences in this Court, or should they return to the care of their mother or aunt?
It is important, though, in light of the litigation here, to set out precisely the terms of the orders sought by the mother:
1. That all previous orders made in these proceedings be discharged;
IN THE ALTERNATIVE:
Upon the mother’s undertaking, without admissions:
(a)to refrain from making any comments to the media (save for “no comment” or other such comment to declining effect), or to accept any solicitations for media interviews be they “on” or “off” the records;
(b)to remain living with the children at her usual residential address known to the Court;
(c)to use her best endeavours to follow and have the children follow any recommendations of the counsellor as contemplated in Order 8 and 19 below;
(d)to:
(i)not discuss these proceedings with the children, save for explaining they will live with her (or the Case Guardian in the alternate) until the parties agree or the court orders otherwise
(ii)not discuss with the children the allegations against the father she has made in the related Hague proceedings
(iii)use her best endeavours to prevent anyone else, in particular, her family members, having discussions with the children as referred to in (i) and (ii) save that this undertaking does not apply to the children’s Case Guardian in so far as she needs to discuss matters with the children in relation to these proceedings, and, save that this undertaking does not apply to professional persons, such as the therapeutic counsellor (contemplated in Order 8 and 19 below).
(e)to not remove or attempt to remove the children from the Commonwealth of Australia, nor will she permit, encourage or allow anyone else to do so
(f)to not permit or otherwise authorize anyone other than herself or their Case Guardian Ms [B] to take the children to and collect them from their schools.
(g)to not permit or otherwise allow the children to have direct physical contact with the Maternal Grandmother.
2.That Order 2 of the Order of the Family Court of Australia dated 14 May 2012 be discharged.
3.That pursuant to paragraph 6 of the Orders of 4 May 2012, the Mother seeks orders that pending the determination of the children’s matter in the High Court:
(a)The children [E V] (born … June 1997), [C V] (born … August 1998), [D V] (born… December 2001), and [L V] (born … May 2003) (“the children”) be returned to the care of the mother;
(b)The children be returned to live with the mother;
(c)The mother make all decisions in relation to the day-to-day care welfare and development of the children;
(d)The mother return the children to the schools they were previously attending;
(e)The mother secure non-reportable therapeutic counselling for the girls; and
(f)The children spend such time with the father as might be agreed between the mother and father, but failing agreement, at the [CS] Safety Centre at such times as the Safety Centre can accommodate.
IN THE ALTERNATIVE, if this Honourable Court does not permit the girls to live with their mother pending the High Court determination:
4.That Order 2 of the Order of the Family Court of Australia dated 14 May 2012 be discharged.
5.That pursuant to paragraph 6 of the Orders of 4 May 2012, Ms [B] seeks orders that pending the determination of the children’s matter in the High Court:
(a)The children [E V] (born … June 1997), [C V] (born … August 1998), [D V] (born … December 2001), and [L V] (born … May 2003) (“the children”) be placed in the care of Ms [B];
(b)The children live with Ms [B];
(c)Ms [B] make all decisions in relation to the day-to-day care welfare and development of the children;
(d)Ms [B] return the children to the schools they were previously attending;
(e)Ms [B] secure non-reportable therapeutic counselling for the girls; and
(f)The children spend such time with the mother as might be agreed between Ms [B] and the mother, to be at least as follows:
(i)Every Monday to Thursday from afterschool to 8pm;
(ii)From afterschool each Friday to their return to school on Monday morning.
(g)The children spend such time with the father as might be agreed between Ms [B] and father, but failing agreement, at the [CS] Safety Centre at such times as the Safety Centre can accommodate.
And it is noted:
A.The Department has provided an undertaking to the High Court to the effect that it will not return the girls to Italy prior to the determination of the girls’ application to the High Court.
The maternal aunt, independent of the application for her to be made a case guardian as earlier referred to, seeks orders which mirror those orders sought by the mother.
The Department, in the form of the Central Authority, and the father each oppose the making of those orders.
After delivery of the reasons in respect of the preliminary issue to which I have earlier referred, the father, through his counsel, sought leave to make an oral application so as to discharge part of the return order made by Forrest J, and for orders seeing, in effect, the children living with him.
I accept that the father, in terms of his participation in these Australian proceedings, has faced and faces some considerable difficulties. Not least, of course, is that his first language is Italian and not English. Moreover, the evidence reveals that he has returned to Italy and come back to Australia at least once during the pendency of these proceedings. I am, then, alive to the difficulties he has faced in seeking to put a case before this Court.
However, the father was represented by a solicitor and counsel on the last occasion. A specific order made by me on that occasion required the filing of any relevant application and material by a specified date. I have been taken to nothing which indicates that an application of the type in respect of which leave is sought orally today, had been foreshadowed. No specific material filed by the father is directed towards that particular application – for example, where and in what circumstances the children would live if they were to live with him, the time that would be provided for them to spend with their mother, and the like.
Unsurprisingly, perhaps, in those circumstances, counsel for each of the mother and the maternal aunt indicate that they are taken by surprise by that oral application, and I declined leave to the father to make it.
At the conclusion of the hearing today, the Department sought a number of additional orders, in the form, primarily, of undertakings to be given by the mother in the event that the Court was to make the orders sought be her. Again, it is appropriate to set out those orders:
Upon the Undertaking of the respondent mother and the Case Guardian for the children if so appointed;
a)Not to permit or otherwise allow the children access to Facebook pages “…1” and “…2” and use their best endeavours to ensure no other person allows or facilitates the children having access to these pages.
b) To:
i)Not discuss the proceedings with the children until the parties agree or the court orders otherwise save that this undertaking does not apply to the children’s case guardian if appointed;
ii)Not discuss with the children any allegations made by the mother against the father in the current proceedings or in any other proceedings;
iii)Use their best endeavours to prevent anyone else, in particular, family members, having discussions with the children as referred to in (i) and (ii) above.
iv)Not denigrate the father to or in the presence of the children and use their best endeavours not to allow any other person to denigrate the father to or in the presence of the children.
c)Not to remove or attempt to remove the children from the Commonwealth of Australia, nor will they permit, encourage or allow anyone else to do so.
d)Not to permit or authorise any other person to take the children to and collect the children from their schools.
e)Not to permit or otherwise allow the children to have any form of contact with the maternal grandmother, [Ms X Garning], or the maternal great grandmother, [Ms H].
f)To advise Ms [F], (an officer of the Director-General, Department of Communities, Child Safety and Disability Services) or such other person as nominated by either the Director-General, Department of Communities, Child Safety and Disability Services, or Ms [F] (such nomination to be in writing), if it proposed that the children will be living away from their current residence, known to the Court, for more than 24 hours.
1. That until further notice, the respondent mother report to Ms [F], (an officer of the Director-General, Department of Communities, Child Safety and Disability Services) or such other person as nominated by either the Director-General, Department of Communities, Child Safety and Disability Services, or Ms [F] (such nomination to be in writing), by telephone on Monday of each week or such other day as nominated in writing by the said Ms [F] or other nominated person.
2. That until further notice, the respondent mother report to the [Y] Child Safety Service Centre in person on Friday of each week and before 4.00pm on such day or such other day as nominated in writing by Ms [F] or such other person as nominated by the Director-General, Department of Communities, Child Safety and Disability Services.
3. That until further order all parties and their legal representatives are to refrain from making any comments to media (save for “no comment” or other such comment to declining effect) or to accept any solicitations for media interviews be they “on” or “off” the record and not to encourage or facilitate the children or any other persons to make comments to media (save for “no comment” or other such comment to declining effect) or to accept any solicitations for media interviews be they “on” or “off” the record.
I indicated to counsel that I would deliver these reasons and thereafter seek submissions on the precise terms of the orders as a result of the substantive decision that I will shortly make.
A short chronology should be referred to, so as to give proper context to this application.
E is 15, born in June 1997. C is almost 14, born in August 1998. D is about ten and a half, born in December 2001, and L, nine, born in May 2003. In June 2010, which, it should be noted, is now two years ago, the mother and the girls came to Australia.
On 23 June 2011, Forrest J made an order that the children be returned to Italy pursuant to what I will call for convenience the Hague Convention. The mother appealed that decision. On 5 August 2011, Forrest J granted a stay of that return order.
On 9 March 2012, the Full Court published reasons for dismissing the mother’s appeal and made orders accordingly. On 4 May this year, Forrest J made an order giving effect to the original return order that the children be delivered to the airport, and the like. From about that time, the whereabouts of the girls were unknown. It transpired that they were collected by officers of the Queensland Police from their maternal great-grandmother. On 14 May 2012, Forrest J made orders, including that the girls would live with a person nominated by the Department until such time as they were returned to Italy. The children have been living in what I have called, and the parties to these proceedings have called, “foster care” since that time.
It is important, I think, to emphasise that nothing contained within the material in these proceedings suggests that the foster care provided by the foster carers to these girls has been anything other than entirely appropriate. I should add that that foster care has been provided in difficult and trying circumstances. The children remain in that foster care.
There is currently an appeal pending before the High Court of Australia, consequent upon the granting of leave by Kiefel J. That appeal will be heard in August.
It was accepted by all counsel before me on the last occasion that the result of success in that appeal will, in practical terms, mean that an application for return order would return to this Court, but with the possibility of various conditions – for example, relating to children being represented and the like – attached, as it were, to it. Lack of success in the High Court appeal would see the current return order continue in full force and effect.
It is against that background that the application made by the mother is for what can conveniently be described as interim orders; that is, orders seeking the placement of the children be changed to the mother pending the further order of the High Court and, subsequently, if required, this Court.
It is, of course, impossible to predict the chronology of the course of that litigation. The appeal will be heard in August. I have little doubt that the judgment of the High Court will be delivered expeditiously, and thereafter the matter return to this Court with appropriate expedition. As a broad guideline, the current application can be seen to have a context of where these children should be until about September or October this year.
A number of central factual matters underpin the current application. The children were taken and secreted in direct contravention of court orders. The mother swears that she played no part in this. The children have been directly involved in these proceedings. The mother says she has played no part in this. The children have been directly involved in widespread media reports of these proceedings. The mother says she has played no part in this.
The children’s views and expressed attitude towards their father have, without question, hardened, and in their manner of expression, become more extreme. The father says that this is as a result of direct or indirect alienation (for want of a better word) on the part of the mother. The mother says this is not so and that the children are simply expressing deep and heartfelt emotions of their own.
Disturbingly, supervisors who have been engaged by the Department report a marked change in observable behaviours by the children toward their father during the time that contact with him has been supervised. So, too, however, those same supervisors report an escalation in distress on the part of the girls when with their mother or leaving their mother, and I will refer to some aspects of the evidence in this respect shortly.
Within the context of these proceedings, these and other very serious matters directly relevant to, for example, parental capacity and the responsibilities of parenthood cannot be determined. Those matters, and many others, serve, though, in my view, to illustrate starkly what Baroness Hale said in Re HB (Abduction: Children’s Objections) (No 2) [1999] 1 FCR 331 at 335-336 as follows:
It is obvious that there are now very serious questions about where the best interests of both these children lie. Mr Nicholls points out that the object of the Hague Convention is set out in its preamble. In essence this is to further the best interests of children by ensuring their speedy return to the country where they have been habitually resident. Once the time for a speedy return has passed, it must be questioned whether it is indeed in the best interests of a child for there to be a summary return after the very limited inquiry into the merits which is involved in these cases. Article 12 of the Hague Convention recognises this by allowing the court to refuse to return the child if proceedings are brought more than a year after the wrongful removal or retention of the child when the child is now settled in its new environment.
[Emphasis added]
Her Honour is there talking about a different situation, namely, the re-hearing, of an application for a return order consequent upon an appeal having been allowed. Nevertheless, her Honour’s words have, in my view, real resonance for the situation with which this Court is confronted in these circumstances. The application made by the mother in these proceedings was brought pursuant to reg 19A. Its terms should be recorded:
Discharge of return order
(1)If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.
(2)The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:
(a)all the parties consent to the return order being discharged; or
(b)since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or
(c) exceptional circumstances exist that justify the return order being discharged; or
(d)the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.
(3)In considering whether to make an order discharging a return order, the court must have regard to section 111CE of the Act if the convention country from which the child was removed is also a Convention country within the meaning of subsection 111CA (1) of the Act.
Written submissions on behalf of the mother refer to specific aspects of the conditions provided for in reg 19A(2). But, in any event, the application here for the partial discharge of the return order is made more than a year after the return order was made.
It seems to me, then, and it is not argued to the contrary, that the application is properly brought, pursuant to reg 19A.
The Central Authority argues that removing the children from their current foster care placement and putting them with their mother exposes them to too great a risk. It is accepted, I think, that foster care, either in this situation, or perhaps, indeed, more generally, is not ideal. But, it is argued, when regard is had to the risk for these children if they were removed to their mother’s care, it is unfortunately a situation that should pertain.
Counsel for the Central Authority, Mr Linklater-Steele, argues that there is good evidence before the Court of there being a direct resistance to the children having a relationship with their father. I asked what difference a placement with their mother would make in that respect, that is to say, whether the risk so identified is the same whether living in foster care or with their mother.
Mr Linklater-Steele argues that the difference was that in the mother’s care, any such exhibitions of that attitude would be wholly unrestrained. Accordingly, it is said, the risk is better managed if the children remain in foster care where the management of that can be better dealt with.
Mr Linklater-Steele also argues that a significant component of the orders sought by the mother is an acceptance by the Court of promises she makes contained within her application to undertake to do certain things so as to preserve the children’s stable environment pending the further determination to which I have earlier referred. He argues in that respect that the mother has elected to not take charge of her parental responsibilities by reason of what we now see in the attitudes of the children towards their father.
In short, although accepting that foster care placement is not ideal, Mr Linklater-Steele says that by reason of the risks to which these children would be exposed in the, as it were, unrestrained care of their mother, foster care represents, in terms of their best interests, the “lesser of two evils”.
Dr Brasch, on behalf of the mother, accepts that it may not be possible for the Court to determine some, or indeed all, of the significant factual issues which might be seen to underpin the children’s current predicament. Dr Brasch argues centrally, however, that it is wrong for the Court to, as it were, punish the girls for the supposed sins of their mother.
In that respect, Dr Brasch refers to the following matters which are outlined in her written submissions and asserts that these matters are non-controvertible facts or contentions:
a.The girls’ reality is that they have lived with their mother in Australia since 2010.
b.The girls’ reality is that they have attended school [in Australia] since 2010.
c.The girls’ reality is that their placement in foster care has removed them both from their mother, their school, and peers.
d.The girls’ reality is that they lived predominantly with their mother from the parents’ separation in 2007 to 2010.
e.At the time His Honour, Forrest J, made the “foster care” order on 14 May, with a return to Italy at a time to be nominated by the Department not before 16 May 2012, there were no High Court proceedings on foot.
f.As a corollary of (e), it could not have been contemplated that the foster care order was to endure any longer than the girls’ return to Italy at a time to be nominated by the Department, but not before 16 May 2012.
g.On the face of their school reports, the girls, especially the elder two, are excelling at school.
h.The girls are expressing firm and repeated wishes, including to the Department’s foster carer, that they wish to be returned to their mother; such is accepted by the Department…
i.The girls are expressing firm and repeated wishes, including to the Department’s foster carer, that they wish to be returned to their school and peers; such is deposed to by the foster carer…
j.On the face of the evidence, the girls’ reality is that their separation from their mother is causing them mental distress…
[References to specific affidavits removed]
It will be seen that many of the paragraphs just quoted contain the expression “the girls’ reality”. That notion sits at the heart of the submissions made on behalf of the mother by Dr Brasch. Dr Brasch argues that the Court must consider the reality for these girls and what they think, and that whatever concerns might be held about the means by which the current position is arrived at, the fact is what the girls are expressing is, rightly or wrongly, a reality for them.
Dr Brasch also, unsurprisingly, refers to the evidence about the behaviours and words of the children to which I will make further reference in a moment.
Dr Wilson, who appears on behalf of the father, supports the Central Authority’s position. He too argues, in effect, that, although foster care is not ideal, it is, in the particular circumstances of this case, the lesser of two evils.
Dr Wilson places particular emphasis on what he calls the alienation of the father by the mother. He points to evidence of the supervisors of visits with the father being enjoyable for the children, at least initially. He says, correctly, as it seems to me, that the evidence reveals that position is, at least by reference to what the children are saying and their behaviours, disintegrating.
He says that this is an indication of the fact that the children have been alienated from him by the mother, or perhaps, more broadly, the mother’s family, and that the real risk to which a placement in foster care is directed, and should continue to be directed, is to preventing further alienation of the children by their mother.
Mr North SC, on behalf of the maternal aunt supports, obviously enough, the position argued for by Dr Brasch. He makes reference to the preamble to the Convention on the Civil Aspects of International Child Abduction, part of which is reflected in the quotation by Baroness Hale’s judgment to which I have earlier referred.
Mr North SC points to the lengths to which the Department has had to go – and I note he directs no criticism of them in this respect – so as to ensure that what might be regarded as ordinary activities and behaviour of the children can be curtailed so as to protect them from what is perceived to be matters of concern.
He, too, says that central to the determination of this case is the children’s reality, irrespective of the means by which that reality has been brought about, or its reasons. He contends that, contrary to that which is contended by the Central Authority, there is a greater risk of harm by the continuation of the children remaining in foster care. Mr North’s argument continues that the reality for these children is that, even if they are being held in foster care for good motives, they are, as far as the children are concerned, being held in detention, contrary to their wishes.
I accept that, on the evidence before me, risks attend the placement of these children with their mother. Independent of any finding (which I cannot make within the context of these proceedings) as to any involvement she may have had in the disappearance of the children or knowledge about it, and independent of any finding (which I also cannot make in the context of these proceedings) about the extent to which she personally has involved the children in the public exposure of what, for them, is a very painful episode, it seems to me that the evidence points to a troubling escalation in the negative attitude by the children towards their father.
This is of profound concern to me. But, ultimately, I cannot remove three matters which predominate my thinking.
First, I think there is an escalation in the asserted depth of feeling by these girls about the continued absence of their mother in their lives. In that respect it is, in my view, by no means insignificant that both E and C are now young women.
Second, I think there is plainly on the evidence an escalation in their levels of distress, and, importantly, the manifestations of that distress.
Third, something which is truly frightening, I am profoundly troubled by suggestions, albeit that on the evidence they are effectively dismissed as not being serious, that the children have said that they will self-harm. I will refer to the specifics of that evidence in a moment, but I am profoundly concerned that the continued absence of their mother from their day-to-day lives and their continued placement in foster care may bring about actions by them which are seriously harmful to them.
It is always extremely troubling when a decision that is directed towards the best interests of children seems to be inconsistent with the decision that would be made if moral approbation or fairness to parents was the criteria. But that is not the criteria. This Court’s task is, first and foremost, as best as can be done within the confines of a fallible human system, to protect the children from what is considered to be significant harm.
I indicated earlier that I would make reference to some of the passages in the evidence which I find particularly troubling, particularly in the context of what I have described as the escalating nature of the depth of feeling, as expressed by these children. I should again make the point, in making reference to these passages, that both the foster carers and those who have been charged with the supervision of these children have done what appears to me to be a very good job in very difficult circumstances.
On 21 June 2012 – that is to say, a couple of weeks ago – Ms Z authored a report where she said this:
While still at the office, [the child L] [who, I interpose, is nine] became upset with her sisters talking over her and she sought soothing from her mother by climbing on her lap. [L] then began to cry and became quite distressed. [The mother] was rocking her and stroking her hair and [L] was repeatedly saying to her mother “I miss you”. [The mother] attempted to reassure [L] that her big sisters would look after her and [L] said she didn’t want her sisters to look after her, instead saying, “I want you”. [The mother] began to cry also and the family embraced and sobbed together for some time before [the mother] suggested a walk outside to the park.
…
[The child C] [who, again, I interpose, is almost 14] began crying at the time of goodbye with her mother and she sobbed quietly in the car while we drove back to the carer’s. [The child E] also began crying [again, I interpose, [E] is fifteen and a bit] and it was clear it had been an emotional goodbye for the girls today.
When we arrived back at the carer’s, [L] and [D] jumped on the trampoline as they usually do following a contact visit and [C] and [E] went inside. [The carer] and I followed, with [the carer] seeking [C] out to offer her comfort as she was still crying. I made cups of tea and then sat with [C], [E] and [the carer] until [C] appeared to calm (approximately 15 minutes) and then [the carer] suggested they do homework and keep busy until dinner-time.
On 22 June, the same supervisor also refers to the following:
[The child L] became upset at farewell time again and she sobbed in the car on the way home. The other children were quiet but did not appear upset.
A report in respect of supervision annexed to the affidavit of Ms W, in respect of contact occurring on 28 June 2012 – that is to say, only a week or so ago – refers to the following:
Over the course of the visit I observed all the children to be tearful and in turn, discuss matters with their mother … using both English and Italian. [The mother] was observed to comfort each of the children.
…
All girls were very distressed at the ending of the visit. It took [the mother] quite some time to calm the girls and encourage them again to remain strong.
In the same report, the following was said:
In contrast to the girls presentation [sic] previously the girls all presented as being quiet and upset. [C] shared that they were happy to be seeing their mother, but remained flat in her tone as she spoke.
The report goes on:
The girls were upset in the car and they offered comfort to each other, in particular to [L] who continued to cry for part of the trip home.
Attempts to lighten the mood were difficult as the girls sat silently. Responding to questions, but unable or unwilling to expand further.
In a case note exhibited to an affidavit by Ms O, filed 4 July 2012, it is said as follows:
[The foster carer] briefly addressed whether either of the girls [the reference being to [E] and [C]] had threatened or thought of self harming. [C] said that she had written something to the effect “what do I have to do to get back home, do I have to kill myself” some time ago but that she didn’t really mean it and that she would never act on such a statement.
Similarly, the supervisor makes reference to a report on a television program about this case, and it is said that it contained a component where “…a maternal relative on the phone spoke of the children’s distress and the 14yo making statements of self harm.” The affidavit goes on:
I am also aware from the mother’s affidavit sworn 6 June 2012,
paragraph 46 wherein she describes similarly that [C] spoke words to the effect of cutting her wrists however added they were words used as an “expression” and that she was “not really going to harm herself”.I repeat that those statements, however they might have arisen, including by reference to shameful behaviour on the part of adults who should know better, if, indeed, that is what has occurred, are, I think, now for the children, as submitted on behalf of both the mother and the maternal aunt, a reality. That this is both appalling and tragic need hardly be said.
Nevertheless, I am persuaded that it is, in fact, a reality for the children. I am persuaded that, on balance, these children are crying out to be returned to their mother, for good or bad, and that predominates all other considerations and the arguments properly made on behalf of the Central Authority and the father.
I remain profoundly concerned that if I do not make an order returning these children to the mother, then, notwithstanding what other risks might be associated therewith, that the distress to the children, and the impact upon their emotional and psychological health are likely to remain high and, perhaps, get worse.
Further, I am most profoundly concerned that a failure to return the children to the mother may well lead to the children, in light of the escalating behaviour and manifestations of that behaviour to which I have referred, doing something profoundly harmful to themselves. With great reluctance, then, but nevertheless firmly persuaded, I consider that, in those circumstances it is, on balance, better for the children to return to their mother.
I so order.
[Argument ensued about the father’s time with the children.]
ORDERS DELIVERED
I will briefly refer to the issue of the orders for time with the father.
I have referred to the troubling statements of the children and escalating manifestations of distress by them in the substantive reasons given earlier. However, a number of considerations point, in my view, to the children spending significant periods of time with their father within the constraints of, firstly, their attending school and being in the care of their mother day-to-day during the week and, secondly, and importantly, the father’s limited time in Australia, which I am told will come to an end at the end of August.
It seems to me that many of the concerns, considerable though they are, in relation to the children are directly related, by their own statements, to their desire, fervently expressed, to return to the care of their mother. I am entirely expectant that when that occurs they will, having achieved what they apparently so fervently desire, be able to properly accommodate the time with their other parent that they should plainly have.
I have an expectation that the mother and those in her family will facilitate that time to the best of their ability.
I note in that respect that the terms of the consent orders – consent orders, I repeat – made in Italy were to the effect that regular time be affected between the children and their father, notwithstanding factual disputes about the extent to which that may or may not have occurred. The fact of that consent seems to me to be an important consideration as does the fact that the mother herself proposed that there be significant block periods of time occurring with the father unsupervised in Italy should the children be permitted to remain in Australia.
In my view, it is in the children’s best interests to spend the time to which I have just referred with their father for those limited periods of time, within the limited period of time that he remains in Australia.
It will be noted in the Orders that I have made that I have removed the proposed weekend commencing Friday, 27 July. I have done so for two reasons. First, there ought be the opportunity, notwithstanding that it is only a five-week period, for the mother to spend a period of weekend time with the children. Secondly, having about a week or so to readjust to their mother’s care, they will have an opportunity to spend a period of time uninterrupted with their mother during the middle of the five week period for which the father remains in Australia.
For those short reasons, I order as indicated.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 6 July 2012.
Associate:
Date: 23 July 2012
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Family Law
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Administrative Law
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Standing
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