Hogg & Foster

[2007] FamCA 176

FAMILY COURT OF AUSTRALIA

HOGG & FOSTER [2007] FamCA 176

Family Law – Children - Return of children

APPLICANT: MS HOGG

RESPONDENT: MR FOSTER

FILE NUMBER: HBC 187 of 2007

DATE DELIVERED: 26 February 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 26 February 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mooney

SOLICITOR FOR THE RESPONDENT: Mr Stower

Orders

UNTIL FURTHER ORDER

1. THAT the parties’ son born in February 1997 and daughter born in February 1999 (“the children”) live with the mother.

2. THAT the father do all acts to cause the children to be delivered to Brisbane Airport and put upon a Virgin Blue flight reasonably nominated by the mother’s solicitors to the father’s solicitors, such notification within twenty four hours and such flight to take place between today’s date and Friday 2 March 2007.

3. THAT pursuant to s.65DA(2) and s.62B, 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.

4. THAT the question of the time the children spend with the father be adjourned to the Judicial Duty List at 10.00am on 3 April 2007.

5. THAT pursuant to s.65DA(2) and s.62B, 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.

6. THAT the interests, in these proceedings, of the children: a son born in February 1997; and a daughter born in February 1999 be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

7. THAT forthwith upon appointment by the said Tasmanian Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

8. THAT within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

9. THAT the application for a recovery order be adjourned to 3 April 2007 at 10.00am and give leave for the applicant mother to have the application restored before me on the giving of twenty four hours notice to the court.

   UNTIL FURTHER ORDER

10. THAT both parties be restrained from exercising any physical discipline in respect of the children.

11. THAT both parents are restrained from being effected by alcohol or illegal drugs whilst the children are in their care or control.

    IT IS DIRECTED

12. THAT the mother’s solicitor forward to the Department of Family and Child Services a copy of all the documents in relation to these proceedings within forty eight hours together with a copy of this order.

    IT IS CERTIFIED

13. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 187  of 2007

MS HOGG

Applicant

And

MR FOSTER

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Ms Hogg, who I will refer to as the mother, and Mr Foster, who I will refer to as the father, in relation to their two children, a son born in February 1997 and a daughter born in February 1999. The mother seeks in her application an order that the children be returned to Tasmania and live with her pending determination of the substantive proceedings. She seeks a recovery order in accordance with the Family Law Act.

2. The father has filed a response in which he seeks an order that the children live with him in Queensland pending the application of the proceedings and spend time with the mother as determined by the court.

3. As I understand it, the father is aged 43.  The mother is aged is 32 and she has recently remarried, and I understand her husband, B, is aged 21.

4. It seems that the mother and father commenced cohabitation in about 1996.  They have lived in Tasmania for quite a number of years, at least since mid‑2003 on my calculations, and on the mother's evidence separated in April 2005.  That date of separation is consistent with that evidence provided by the father.

5. It seems not in issue that the children have been in the care of the mother until 10 January this year when they travelled to Queensland to spend time with the father, this being an informal arrangement organised by the parties, and in anticipation of the children being returned about a month later.

6. There is an issue as to whether the mother consented for a short while for the children remaining in Queensland and, as I will say probably more than once in the course of these reasons, I am unable in most areas to make a determination of fact, often I will simply be able to highlight the facts which are in dispute.

7. It does not seem in dispute that the father moved to mainland Australia in early 2006 and whilst he may have had significant involvement with the children prior to that time, he did not have any involvement with the children until they commenced to visit with him on 10 January 2007.  As counsel for the mother rightly submits, the father was content for whatever reason to leave the children in the care of the mother for that period of time.

8. In normal circumstances there would be no reason why these children ought not to be returned to their mother; however, the father raises in his affidavit significant issues.  He raises issues about the unwashed and unkempt state of the children.  This must be seen in the light that no complaint was apparently made to any child welfare authorities in Queensland or Tasmania prior to the commencement of these proceedings of which I have been made aware of firstly, and secondly, the evidence, albeit untested, of Ms S in relation to her observations as a teacher of the children, including her obligations to make mandatory disclosure and the children being always clean, present and well-cared for and always bringing lunch.

9. It also has to be seen in the light of the untested evidence of Constable R, and the report of clinical psychologist, Ms J, when she observes of the daughter that she was "an attractive, slightly overweight for her age".

10. There is a complaint with regard to the children that they have been the subject of excessive discipline and excessive requirement to undertake chores which is again in issue.

11. I note and accept the submissions on behalf of the applicant mother that no medical reports have been provided, no photographs have been provided, and there appears, as I have said earlier, to be no complaint to child protection authorities since the commencement of these proceedings.

12. It is also significant that the father has known from 14 January 2007 that he was retaining the children, but did not take any proceedings; he left it for the mother to take those proceedings and, as I understand it further, that all the children are sleeping in one room.

13. It seems to me the crux of the father's complaints or concerns is set out in his notice of risk of abuse in regard to exposure to age and appropriate sexual material and behaviours, exposures to unsafe practices such as being passengers in a vehicle with a drunk driver whilst the driver is performing unsafe acts, being denied access to age appropriate behaviours.

14. Mr Stower makes strong submissions that because of the allegations raised by the father I ought to be very cautious in taking the step that I otherwise ought to take, and I think everyone concedes I otherwise ought to take, in returning the children so there can be an investigation here.  He relies very much on the evidence of the father and I note that is untested and it must be seen in the light of the other evidence and the evidence of the psychologist.  What is, of course, a problem with the evidence of the psychologist is that it was clearly obtained for forensic purposes.  It was ordered, the appointment was made.

15. The children and the father attended the psychologist on 22 February 2007 which is last Thursday, which must have been in the shadow of these proceedings or the anticipation of these proceedings.  No material from the mother was provided to the psychologist, albeit it may well have been that material only became available the day before the appointment or the day of the appointment.  There was no reason that could not have been provided to that psychologist.  The psychologist observes in her report that she has, and I quote at page 9:

    “I have not sighted any other information in relation to these children apart from a handwritten document which [the father] had written comments as to what the children had said to him and what he had observed since their arrival with him in January 2007”.

16. Further, she observes:

    “I have not been provided with any information regarding the children's mother and their living arrangements in Tasmania”.

17. She goes on to say:

    “Information was provided independently by [the father] whose daughter, […], and his, [son]”.

18. I have some concerns about the methodology of a psychologist in those circumstances.

19. I am obliged to consider the matters set out in section 60CC of the Family Law Act in determining parental responsibility, if appropriate, and then living arrangements. The primary consideration, of course, is the benefit of the child or children of having a meaningful relationship with both of their parents. In this case what is clear is the children have had and continue to have, from the material provided in the mother's second affidavit, a meaningful relationship with her. The father, for whatever reason, in the last 12 months has not been able to develop that relationship.

20. The other primary consideration, which is, in fact, that which is relied upon by the father is a need to protect the children from physical or psychological harm or from being subjected to abuse, neglect or family violence, and that is, in essence, the crux of his application.

21. I am to take into account the views expressed by the children and there are views expressed, although those views are not given in an independent way and can be taken one way or the other.  So I give no significant regard to those at the present time.

22. I have taken into account the nature of the relationship with the children with each of their parents and the willingness and the ability of each of the child's parents to facilitate and encourage a close continuing relationship between the child and other parents.  There are issues as to that.  The father asserts that the times he tried to organise to see the children were circumvented by the mother.  The mother says this is not the case.  I do not know what the true position is except to say, of course, that the children were sent up there on 10 January of this year.

23. The likely effect of any change in the children's circumstances, what is clear in this case is that the children had a well-settled arrangement with their mother in Tasmania and that has been brought to an end unilaterally by the father for the reasons that he sets out in his affidavits.

24. Whichever determination I make, there will be a practical difficulty and the expense of the children spending time with the other parent.  As to the capacity of each of the child's parents to look after the children, both parties challenge the other:  the mother says the father is not capable of looking after the children and has left the care of the children to her, the father has set out in his reasons and says that in these circumstances he is capable, although there are concerns about the accommodation which he says will change.

25. The maturity, sex, lifestyle and background of the children:  I take those matters into account as are set out in the affidavits and these are agreed.  In terms of the attitude to the children and responsibilities of parenthood demonstrated by each of the child's parents, I simply reflect on the evidence so far and, in particular, that the mother has been the primary carer of these children and in the absence of the father, at least for some time prior to 10 January 2007.

26. I am obliged to consider whether a party has taken or failed to take the opportunity to participate in the lives of the children since separation and I have done so, and facilitated or failed to facilitate the time the children spend with or the decision-making with regard to each other parent, and again a lot of the evidence in that regard is in dispute.

27. I take into account the events that have happened and the circumstances that have existed since the separation has occurred.  It seems to me, taking into account all of those factors as against the evidence of this matter, that there ought not to be on balance an order in accordance with the presumption of section 61DA, and accordingly under section 61DA(4) and also at some level relying on section 61DA(3) I do not propose to make an order for equal shared parental responsibility at this time.

28. Taking into account all of the evidence and the factors under section 60CC and the submissions of both parties, it seems to me appropriate that the status quo ought to be restored and the children ought to be returned to Tasmania but orders put in place providing for an independent children's lawyer notifying the Department of Family and Child Services and putting in place orders that there is no physical discipline.

I certify that the preceding 29 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:  26 February 2007

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