Hindmarsh and Hindmarsh (No.2)
[2008] FMCAfam 403
•21 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HINDMARSH & HINDMARSH (No.2) | [2008] FMCAfam 403 |
| FAMILY LAW – Parenting – application by father for children to be returned to his care – risk of harm to children if returned to father – order for children to remain with mother pending determination of part-heard interim proceedings. |
| Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4), 65DA(2) |
| Applicant: | MR HINDMARSH |
| Respondent: | MS HINDMARSH |
| File Number: | PAM4004 of 2006 |
| Judgment of: | Henderson FM |
| Hearing date: | 21 April 2008 |
| Date of Last Submission: | 21 April 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 21 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Battley |
| Solicitors for the Applicant: | Maatouks Law Group |
| Solicitors for the Respondent: | Karen L. Haga & Associates |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
All previous parenting orders in relation to the children, N born in 1997, D born in 1999 and E born in are discharged.
The children are to live with the mother pending the Interim Hearing on 6 May 2008.
Until further order the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children N (female) born in 1997, D (female) born in 1999 and E (male) born in 2002 from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child/ren from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Henderson delivered this day will for all publication and reporting purposes be referred to as Hindmarsh & Hindmarsh.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM4004 of 2006
| MR HINDMARSH |
Applicant
And
| MS HINDMARSH |
Respondent
REASONS FOR JUDGMENT
Introduction
In the matter of Hindmarsh the application is the father's supported by an affidavit filed on 17 April 2008 for the return of his children to his care pursuant to orders made by Donald FM on 7 March 2008. This is a discretionary matter.
The children are N born in 1997 aged 11, D born in 1999 aged nine and E born in 2002, shortly to be six.
I am part heard in the matter which interim hearing is to resume on 6 May 2008. I granted the mother’s application for a further interim hearing when the matter came before me for a final two day hearing on 27 March 2008. I formed the view that I could not proceed to a final hearing as I would have been unable to make an order in the children’s best interests on the available evidence.
A part of the reason for this decision was that the children had only been in their father's sole care for three weeks and there was no evidence of how they were coping with this significant change to their care arrangements. Further the matter could not be contained within the time allocated for the hearing.
Dr Rickard-Bell is in the midst of being cross-examined in the interim hearing. The report he prepared when the matter was before Donald FM on 7 March 2008 recommended that the children be removed from the care of their mother where they had always lived and be placed in their father's care for three months with no contact with the mother. FM Donald made orders the children be placed in their father’s care and have telephone contact with the mother each Sunday. That order took effect on 7 March 2008.
This is a most fraught matter. The father's case supported by the report of Dr Rickard-Bell is that the mother has set about a course of conduct to alienate these children from their father and that as time progresses the alienation becomes more severe. As such these children are at grave risk of losing a relationship with their father which by any account was, 12 months ago a meaningful and beneficial relationship.
The mother's case is that the children's wishes not to spend time with their father are due to fears they express of his behaviour experienced by them during the marriage.
Today I am asked to order the return of these children to their father's care. They are presently in their mother's care and have been since
11 April 2008.
It goes without saying that it is most important I look with some care and detail how it is the children came to be in the mother's care when the orders of the Court provided for them to be in their father's care.
Background facts
I made no variation to Donald's FM orders. The mother was to have telephone contact with the children on a Sunday otherwise they were to live with their father. The mother had telephone contact with the children on 30 March 2008 and again on 1 April 2008 facilitated by the father. The children went to school each day whilst in the father’s care without incident until 4 April 2008.
On 4 April the children ran away from school and travelled on foot crossing many busy roads to reach their mother's home. Their mother was at work; their grandmother was at the home. The mother did not come into contact with the children on that occasion. The mother facilitated a neighbour opening up the door of her home to speak to the children and see if the neighbour could coax or assist in the children being returned to their father's care. The father was by this time at the mother’s home seeking the children return with him.
The neighbour Ms M filed an affidavit on 17 April 2008. She says in paragraphs 5 and 6 of her affidavit that the children said:
No, we don't want to go. Please don't make us go.
The children had repeated to Ms M that they would not go with their father and said to her:
We just want to go home to our mum and our house. We will not go with our father if he comes to get us.
Ms M states the children became emotional and distressed. She went and spoke to the father and told him that they did not want to go with him.
Ms M says that the father's response was as follows. He spoke to the children from the front door of the house and said to them:
You have one of two choices. One is that you come with me now and we discuss what has happened today at my house. The other is that I ring the Federal Police and get a removal order.
The police were ultimately called. The police spoke to the children. They could not coax the children to return to their father and the children stayed with their mother and grandmother at her home that weekend.
The children came back into the father’s care on Monday 7 April 2008 as the mother returned the children to school on Monday thus ensuring the father was able to collect them in the afternoon. Thus they returned to his care in accordance with the orders on 7 March 2008.
One can only imagine that the father was most concerned that his children had ran away from school, had stayed at their mother's on the weekend and that he, the police and a neighbour had been unable to effect their return to him.
I would have expected that the father might have taken any step available to him to ensure that his young children did not wander the streets again during the middle of the day. This is not something any parent would want and is a real risk, particularly with a child who is just approaching six years of age.
However, I do not see the father took any steps to attempt to prevent such an event occurring again. He continued to work in circumstances where he knew the holidays were coming up and rather than delivering and collecting the children in person each day he had a babysitter collect the children in the afternoon. That causes me concern regarding the father’s parenting capacity and ability to put the children’s needs first.
What also causes me concern is Ms M’s recitation of the father’s attempt to coax the children to return with him on 4 April 2008. The father’s comments if true are not child focussed or in anyway encouraging. They have a slight air of a threat. That type of comment to the children, if correct again demonstrates a lack of understanding by the father of the children’s position.
The children refused to go with the babysitter on 11 April 2008 and again returned to their mother's home on foot. Their mother was at home at that time but she did not see the children initially. They went to a neighbour. The mother called her solicitor to seek advice as the mother did not want to breach the Court orders.
The mother rang the father and asked him to come and collect the children on 11 April 2008. He refused to do it. He said that the mother must deliver the children to him.
The mother says at paragraph 44 of her affidavit in relation to the
4 April incident:
I formed the view that once the children had seen me, it would be impossible for anyone to encourage them to leave with their father, which is why I kept away. I've tried and tried to encourage the children to return to their father but they refused to do so. The father had been unable to encourage the children to leave with him the day before. I did not consider it in the children’s best interest they be dragged physically from my home.
The mother formed the view on 11 April 2008 that the only way that the children would return to the father was if the father came to collect them and she did not see them. There is some force in her position.
For reasons I do not understand even after having read the father's material, he did not go to collect the children. He said that the mother had to return the children to him. That did not occur and so the children have remained in their mother's care since that time in contravention of the Court orders. The children have spent no time with their father and had no telephone contact with him.
It is the father's view that the mother is continuing to encourage or facilitate alienation in the children’s expressed wishes of not wanting to be with their father. That is the finding of FM Lindsay in contravention proceedings late last year.
On the evidence today, I do not see that the mother’s actions are entirely responsible for the current situation. The mother has taken quite drastic steps not to contravene the orders and has taken positive steps to have the children returned to their father’s care. The father, the police, the school and neighbours have all tried to encourage the children to return to their father and all these adults have failed.
One of the father's options to prevent this event occurring again was to suggest N be enrolled in another school and the younger two remain where they are. The father believes without N’s influence the younger children would not have run away.
There are two concerns for me from this suggestion which was withdrawn at the hearing but is none the less in the paragraph 46 of the father’s affidavit. The first is if N herself is acting this way and encouraging the younger children it is hardly at the fault of the mother at this particular point in time.
Secondly, N is in her last year of primary school and for these children the only stability they have at the moment is their school as they have been removed from their mother's care. To take N away from her school in her last year may be a devastating loss for her and cause real damage.
I am concerned that the father took such a position and did not even consider the impact on N of such a move. I do not see how such an action would have eased the situation and made things easier for his children.
This is an extremely difficult situation for the mother and father and I am in no position today to make findings about why or how this has come about. The one thing I will say is that I will not punish children for the poor behaviour of a parent. I just will not do it because the only order I can make is an order in the children’s best interest. I have to come to these matters from a position of what is in the best interests of the children.
Even if I believe or have formed a view that one parent has behaved poorly, has alienated a child from a parent or encouraged such conduct, if orders are having a negative impact on or exposing a child to a risk of harm I will change the orders because the children’s safety must be protected at all times. That is our job as adults to protect children. All of the adults in this room. I am most concerned, as both these parents must be that these children have run away twice from their father's care. Their father must have been quite horrified at this behaviour as was their mother.
Their father has been unable on two occasions to ensure the children’s safety whilst in his care. He took almost no steps after the first occasion they ran away to do whatever he could to ensure it did not happen again. In fact, I do not see any change to any of the care arrangements in the father's household from between the first occasion they ran away to the second occasion. The father's idea about how to resolve the situation was remove N from her school, so placing again the burden of these adult decisions upon the children.
I accept the submission by Ms Haga for the mother that this is now a case of risk. The Independent Children's Lawyer has urged upon me to ensure the children return to their father's care and for the recovery order to issue to compel the mother to bring the children to Court and from there into their father's care.
This submission is based upon the real concern of the significant risk that these children's relationship with their father will fail because of the conduct of the mother.
Findings
My view on the evidence is that the only risk assessment in this case has been the risk of harm to the children of alienation from their father. There has not been any assessment of the risk of harm to these children in being separated from their mother. We have some evidence of the consequences for the children in being separated from their mother. They have run away from their father on two occasions. A little six-year-old wandering the streets is just too horrific to contemplate.
The father blames the mother. I do not see that as proven at this stage. In the past that may be so but not at the present. The evidence is that the mother has done things to cause the children to return to the father.
I am most concerned that if I order these children to be returned to their father they will run away again. They must attend school. The father cannot be with them at school. The children and parents need to continue with their lives. The parents cannot be with them 24 hours a day, no parent can. If anything had happened to these children, if any injury was sustained to them, neither of these parents would ever forgive themselves and this Court would not have been putting the best interests of these children to the forefront in making orders to protect them from possible physical harm.
I am most concerned that the balance between the children not being alienated from their father and the consequence of them being separated from their mother has not been well met. The orders in place now may be causing the children more harm than the harm they will suffer in being alienated from their father at this time.
The children thought there would be a final hearing in three weeks. I made a decision I could not do that. The children’s lawyer has been unwell and unavailable and a decision was made that no one else could tell the children why there had not been a final hearing.
These children are intelligent children and children I perceive who if they are told something they expect it to happen, as their parents do. They have been left in limbo by the adults. Their dad cannot assist them in this and neither can their mother. Thus the children have taken matters into their own hands and they have walked to their mother's home.
In those circumstances I must vacate the orders made by Donald FM which consequence is that the children will remain in their mother's care until I complete the interim hearing. By that time Dr Rickard-Bell will have been given an opportunity to assess the recommendations in his report in the light of what has happened, the Independent Children's Lawyer will have had an opportunity to speak to the children and explain to them what has happened and why.
I am most concerned that I do not place the children in further possible jeopardy, put their parents in this intolerable position of dropping a child to school, not being sure if they will be there for collection and where they have been.
There are no concerns of physical safety with the children in the mother’s care. There is an issue of physical safety if the children remain in the father’s care. Not due to any poor conduct on his part, but the difficult and complicated family dynamics present in the matter. I am not criticising the father but I am not satisfied he can guarantee their physical safety at this time whereas I am confident the mother can do so.
Protecting a child from risk of physical harm is a primary consideration I must have regard to under s.60CC (2)(b) when I am exercising my discretion to make a parenting order. The risk of physical harm to the children by a continuation of FM Donald’s order is my major concern at this time. Thus, I will discharge the orders made by Donald FM and all prior parenting orders until 6 May 2008 and in lieu make an order that pending further order the children live with their mother.
I have been asked to continue the airport watch list order and I will do so.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: Maryrose Portelli
Date: 24 April 2008
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