JAROS & CALDEN

[2019] FCCA 1221

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAROS & CALDEN [2019] FCCA 1221

Catchwords:
FAMILY LAW – Parenting – interim application for recovery of children – where father withholds children – where interim orders in place for week-about time – where father seeks order for suspension of mother’s time – where father’s withholding appears opportunistic and tactical – order for delivery up to mother – brief suspension of father’s time.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

SS v AH [2010] FamCAFC 13

Applicant: MS JAROS

Respondent: MR CALDEN

File Number: ADC 1152 of 2018

Judgment of: Judge Heffernan

Hearing date: 4 April 2019

Date of Last Submission: 4 April 2019

Delivered at: Adelaide

Delivered on: 8 April 2019

REPRESENTATION

Counsel for the Applicant: Ms M Dickson

Solicitors for the Applicant: Resolve Divorce Lawyers

Counsel for the Respondent: Ms R Read

Solicitors for the Respondent: Adelaide Hills Legal

ORDERS

1. The children, X born in 2009 and Y born in 2009, are to return to the mother’s care by the mother collecting the children from their school at the completion of school today.

2. In the event that for whatever reason, the children are not at school at the time the mother collects them, then pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)to find and recover the children X born in 2009 and Y born in 2009; and

   (b)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 children may be found; and

   (c)to deliver the children to the mother MS JAROS at such a place as the mother and the person effecting such recovery agree to be appropriate.

3. Without any admission on the part of the father for the need for same, the father is restrained and an injunction is granted restraining him from contacting the children at school today and/or attending upon the school today.

4. Upon noting that the interim orders of 5 December 2018 will continue to have effect, notwithstanding those orders, the father’s time is suspended for a period of one week for the children to settle into the mother’s care and to cater for the unilateral decision of the father removing the children from the mother’s care and the father’s time is to re-commence on 29 April 2019.

5. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2009 and Y born in 2009 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within 7 days of the date hereof and that the Independent Children’s Lawyer use his or her best endeavours to meet with the said children such as to be in a position to make submissions to the Court on the adjourned date.

6. The mother is encouraged to promote the child X engaging with the school counsellor to discuss her present situation.

7. The parties are to do all things necessary forthwith to agree upon an independent psychologist for the purpose of providing counselling or therapy for X and both parties are at liberty to be involved in the process of consultation with the psychologist and receive information as to any diagnosis or therapy that is advised.

8. The parties have leave to call the matter on in the event that a psychologist cannot be agreed.

9. The matter is adjourned to a date and time to be advised.

10. The mother’s costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym is Jaros & Calden approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1152 of 2018

MS JAROS

Applicant

And

MR CALDEN

Respondent

REASONS FOR JUDGMENT

Settled from Transcript

1. This is the mother’s application, by way of Application in a Case filed on 28 March 2019, for delivery up and recovery of the children, X born in 2009 and Y born in 2009, in circumstances where they were withheld by the father on 25 March 2019.  There were final orders made late last year on all matters with the exception of term time.  That was the issue that had yet to be resolved and was going to go to trial.

2. In October of last year, the Family Consultant, Ms B, provided a Family Assessment Report with respect to the parties and the children.  That resulted in some interim orders being made at the time of the final orders, being that the children would spend week about time with the parents, so, in effect, a shared care arrangement pending a final resolution of the issues at trial.  The first Application in a Case was made by the mother on 22 January 2019 (‘the initial interim application’) and she sought to have the children, on an interim basis, placed into her care with a significant reduction in the father’s time.

3. The father filed his Response to that application on 13 March 2019 and he promoted that, on an interim basis, the parties retain the shared care arrangement.

4. On 25 March 2019, the father retained the children and stopped sending them to school.  I have been advised this morning that the children have gone to school today and, as I understand it, that is the first time since 25 March 2019.  The orders sought, as I have said, in the father’s Response to the mother’s first application in a case were to maintain the present interim arrangements. 

5. The mother’s Application in a Case for recovery of the children was made on 26 March 2019. The father’s Response to that application was filed on 29 March 2019. I have considered the affidavit material filed by the parties. I have considered closely the Family Assessment Report of Ms B, and I have considered the submissions of counsel. I have reminded myself that any order I make in parenting proceedings must have the best interests of the children as the paramount consideration.

6. I have reminded myself of the primary and additional considerations in s.60CC of the Family Law Act 1975 (Cth) which assists the Court in determining where the best interests of the children lie and, in particular, the primary considerations, namely, that the children have a right to a meaningful relationship with both of their parents; secondly, that the children must be protected from physical or psychological harm – and I am paraphrasing – where necessary and where that consideration arises, primacy must be given to that consideration.

7. I have also reminded myself of the nature of an interim hearing.  I cannot determine facts on a final basis. I cannot make final findings of credit. As I, and other judges have noted, an interim hearing and proceedings such as this are, in effect, a risk management process upon which the Court must try to balance all of the competing theories of the evidence and come to a determination of what is in the best interests of the children.

8. I was reminded by counsel, Ms Dickson, of the essential dilemma facing a judge in interim hearings where there are serious allegations made by one party, and they were outlined in the judgment of SS & AH.[1]  The Court there observed that apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. 

   [1] [2010] FamCAFC 13.

9. It is not always feasible, when dealing with the immediate welfare of children, simply to ignore an assertion because its accuracy has been put in issue.  I am grateful to counsel for reminding me of that passage of that judgment because it outlines, as I said, the essential dilemma, indeed the invidious position that the Court faces when there are such diametrically opposed positions in terms of the allegations made. 

10. I will not summarise, for the purposes of these brief oral reasons, all of the content of the affidavits.  I have read them.  The parties know what the issues are.  The father says that the child X is at risk of self-harm.  He says that she has threatened self-harm.  She has threatened to kill herself on more than one occasion.  He says that she has made a threat that she would kill the whole family.

11. The father says that this is an imminent danger to X and that is what prompted his withholding of both children, and prompted the efforts he made in terms of taking X to his general practitioner; consulting CAMHS; consulting the Women’s and Children’s Hospital; ringing his local church; and encouraging X to ring the children’s helpline.

12. The mother says that she has not noted any of these concerns. She points to the father’s previous alleged behaviour and withholding of the children and the fact that the relationship was one characterised by domestic violence, which ultimately caused her to leave the relationship; the father’s plea of guilty to aggravated assault upon her; and the restraining order that she has upon him. In essence, her theory of the evidence is that this is an effort by the father to garner evidence as a way of ‘queering the pitch’, if I can put it that way, of the mother’s initial interim application.

13. The submissions of counsel, in effect, summarised those concerns from both parties.  Ms Dickson, for the mother, urges the Court to return the situation to the interim orders with a suspension of the father’s time to enable things to get back on an even keel – my expression, not Ms Dickson’s expression.  Mrs Read, for the father, says that the father has been frustrated, worried sick, and that he has simply been trying to do his best to sort out the mess that has arisen with respect to the X, and that his conduct has been essentially protective rather than an effort to gain a forensic advantage. 

14. I will not attempt a lengthy chronology or summary of the facts.  What I have decided to do is to identify those key matters in my considerations and whilst I will not list them separately, the parties must be aware that the key matters in my consideration include the matters identified by both parties in their respective affidavits. 

15. In addition to those, I take into account the Family Assessment Report from October last year in which it was apparent that both children loved both parents and the interactions – in this case, most relevantly, with the mother were - if there is any interaction which could be described as normal - apparently normal and spoke of a positive relationship between the children and the mother.  Ms B did not appear to note any of the warning signs that might have been expected with respect to X, if the difficulties which are now alleged to have arisen had been bubbling below the surface at that time. 

16. I take into account the fact that Ms B was concerned that there seemed to have been an element of coaching of the children and influence by the father on them prior to the preparation of the Family Assessment Report.  She identified the fact that the father had shown X a YouTube video about what to expect and that he had admitted, in the course of speaking with her, that he had encouraged the children not to say negative things about him because he was not quite sure how he would deal with it.

17. I take into account Ms B’s observation that, in some respects, the presentation of the father appeared to be consistent with the mother’s allegation of coercive and controlling behaviour, and in contrast her assessment of the mother that she appeared to be child focused, and that there were no warning factors about her capacity to act as a parent. 

18. I take into account the apparent absence of unhappiness and/or the threats of harm from X at the time of the final orders and the father’s preparedness to assent to week-about care at that time. 

19. The next matter I take into account is what I will call ‘the first’ timing issue:

    a)The fact that the mother’s initial Application in a Case filed 22 January 2019, was, in effect, saying that the children were not coping with week-about time and that her assessment, as the person who had been the primary carer during the course of their lives, was that it would be better if that interim arrangement were replaced with a regime that substantially reduced the father’s time; and

    b)The father’s Response to that Application in a Case, which sought to maintain, at that time, being 13 March 2019, week-about time, being a fortnight before withholding the children. 

20. That timing does raise the question as to whether or not there is an element of tit for tat in the father’s withholding of the children. In other words, that his conduct may have been a spoiler for the mother’s application with respect to altering the arrangements for the children’s time with him.

21. I take into account the father’s alleged past history of retaining the children on numerous occasions, as detailed by the mother in her various affidavits.

22. The next matter I take into account is the complete inadequacy of the doctor’s medical certificate.  The father says in his affidavit that the doctor’s medical certificate says that X was unfit to go back to school until 3 April 2019.  It does not say anything of the sort.  It says that X is receiving medical treatment between 27 March and 3 April 2019.  It does not say for what.  It does not say that she cannot go to school or undertake her usual extracurricular or social activities.  It does not say that there is a risk of self-harm.  It does not say that the child needs an urgent psychological assessment or assistance.  Those facts are remarkable given that the doctor is the father’s longstanding general practitioner, that he has a vague personal connection to the father, and that the father reports that the general practitioner essentially shared his views as to the gravity of X’s predicament.  One would have expected at least a notation, a diagnosis or something that supported the father’s contention on the medical certificate. 

23. To the contrary, it seems, on its face, to be a very carefully worded certificate and does not commit itself to any particular diagnosis.  In the circumstances, I find that I am unable to place very little weight on that medical certificate. 

24. The next matter I have taken into account is the lack of any other independent supporting evidence. 

25. I take into account what I have called the ‘second timing’ issue and that is, that in between the Family Assessment Report and now, things have allegedly gone so far off the rails for X.  Indeed, seemingly, that has occurred in its most dramatic form in-between the father’s filing of his Response to the mother’s first interim application and his withholding of the children. 

26. The next matter I take into account is the mother’s evidence that she has not observed any of the behaviours alleged by the father and that X is essentially happy in her care, as is the child, Y. 

27. I take into account the lack of observations or concerns from X’s teacher, her principal, or the school counsellor, noting that she has engaged with the school counsellor. 

28. I balance that against the father’s assertion that X has reported to him that he was punished by the mother for making what I will simply call ‘complaints’ to the school counsellor. 

29. The next matter I take into account is the limited weight that can be accorded to the opinions apparently expressed by the police officers who have done welfare checks on at least two occasions since the father withheld the children. The fact that the police officers were satisfied that X would not harm herself in the father’s care or that both of the children were safe in the father’s care, does not mean that they have made an assessment X would harm herself in the mother’s care or that they were not safe in the mother’s care. And, indeed, the weight to which I could accord to the opinion of a patrol police officer making a brief welfare check after a brief discussion with a child would, in any event, be limited.

30. I next take into account the lack of any objective evidence that Y has been affected by this dramatic change in X’s presentation.  One would have thought that, as the matter has developed, that might have been something that caused the sort of significant distress to Y that might have been noted by his school teachers.

31. The next matter I take into account is the fact that the father has requested a second independent expert to be introduced to these proceedings by way of a Section 62G report, in the context of Ms B’s expressed opinions in her Family Assessment Report, which, on an objective reading, suggests reservations and qualifications about her observations with respect to the father. 

32. I take into account the fact of the status quo that had pertained, namely, of week about care for the children since the time of what has been described as the final orders. 

33. The next matter I take into account is the fact that the father took X to his own general practitioner and not the general practitioner, or one of the two surgeries, which she has apparently been seeing for her entire life.

34. The process of making interim orders on contested matters, as I have said, is fraught with difficulty.  It is not simply a matter of identifying risk.  It is not simply a matter of ignoring a risk because that risk is denied. 

35. What needs to be demonstrated is such a risk that will warrant a departure from the status quo until the circumstances can be properly addressed and the evidence properly tested at a trial in relation to the allegations. What is necessary, in my view, is that there be sufficient evidence, reasonably capable of belief, that gives rise to a sufficient cause for concern, namely, a sufficient apprehension or perception of immediate risk or long-term risk to a child that justifies a departure from the status quo.

36. Balancing all of those matters, I am not satisfied that the best interests of the children require either suspension of the mother’s time, or of the interim orders that were previously in place.  I am concerned that there does appear to be at least a risk that the father has been trying to influence the children, in particular X, as a means of garnering a forensic advantage in these proceedings.

37. I make the orders to be found at the beginning of these orders.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  9 May 2019