Merritt & Bruckner
[2023] FedCFamC2F 208
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Merritt & Bruckner [2023] FedCFamC2F 208
File number: ADC 1267 of 2016 Judgment of: JUDGE BROWN Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – Interim proceedings – application for recovery order – orders placed children in care of father following contested trial – children currently separated – father alleges mother emotionally manipulating child – mother asserts father abusive – order for recovery made Legislation: Family Law Act 1975 (Cth) ss 4, 60CC, 67X, 68LA, 91B Cases cited: Deiter & Deiter [2011] FamCAFC 82 Division: Division 2 Family Law Number of paragraphs: 116 Date of hearing: 23 February 2023 Place: Adelaide Applicant: Appeared in person by Microsoft Teams Respondent: Appeared in person by Microsoft Teams Counsel for the Independent Children's Lawyer: Ms Betro appearing by Microsoft Teams Solicitor for the Independent Children's Lawyer: Shorter Legal ORDERS
ADC 1267 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MERRITT
Applicant
AND: MS BRUCKNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BROWN
DATE OF ORDER:
24 FEBRUARY 2023
THE COURT ORDERS THAT:
1.Pursuant to section 67Q of the Family Law Act 1975 (Cth) the Marshal, the Deputy Marshal, and all officers of the Australian Federal Police and all officers of the State and Territory Police be authorised and directed with such assistance as is required, if necessary, by force:
(a)To stop and search any vehicle, vessel or aircraft and search any premises of place in which there is, at any time, reasonable cause to believe that the said children may be found;
(b)To recover the child X born in 2012;
(c)To deliver the child to the father; and
(d)To arrest, without warrant, the mother in the event that the mother again removes or takes possession of the child.
2.The Chief Executive Officer of the Department for Child Protection is requested to provide assistance as requested by the police officers concerned in the execution of order 1 hereof and to this end the Court authorises the release of the departmental report dated 1 February 2023 to the Australian Federal Police.
3.In the event the Recovery Order as ordered in order 1 hereof remains unexecuted by 2 March 2023 it is directed that the officer in charge of the Australia Federal Police provide to the Court a report as to the progress made in respect of it.
UNTIL FURTHER OR OTHER ORDER:
4.Order 2, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, 16 and 17 of the Orders made on 9 March 2022 are suspended.
5.The children of the relationship X born in 2012 and Y born in 2014 live with the father and he have sole parental responsibility for each child.
6.The father is authorised by this order to enrol the aforesaid children at a primary school of his selection without any reference to the mother upon both children coming into his care.
7.Pursuant to section 68B(1)(a) an injunction is made for the personal protection of each of the aforesaid children pursuant to which the mother is restrained and an injunction issues restraining her from attending at the place of residence or education of either child or at any place at which the children attend extra-curricular activities or sports or receive medical treatment or psychological treatment or within 500 metres of any such location.
8.Pursuant to section 68B(1)(a) an injunction is made for the personal protection of the children’s father MR MERRITT to which the mother is restrained and an injunction issues restraining her from attending at his place of residence or place of employment or within 500 metres of any such location.
IT IS NOTED that orders 7 & 8 of these Orders are subject to the provisions of section 68C of the Family Law Act 1975, which authorises the arrest of any person if a relevant police officer believes, on reasonable grounds, that the person against whom the injunction is directed has breached the injunction by harassing, molesting or stalking that person
9.The father and the Independent Children’s Lawyer be at liberty to call the matter on at short notice in respect of any issue arising in respect of the enforcement of these orders.
10.A copy of the oral reasons provided this day be transcribed and released to the parties in due course.
11.Further consideration of the matter is adjourned to 23 March 2023 at 9.30am for directions to take place at Court with all parties to be present
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Merritt & Bruckner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPOREJUDGE BROWN
The matter of Merritt and Bruckner is listed this afternoon for delivery of judgment. It follows an interim hearing which occurred yesterday. The reasons are being delivered orally because there is a significant level of urgency surrounding the situation. The case involves two children who are currently living in separate households.
This is notwithstanding the fact that, following an extensive final hearing, it was ordered that the two children should live in the same household. Accordingly, the urgency relates to the fact that orders are not being followed, and in addition, in my perception, there is an atmosphere of generalised hysteria surrounding the case, which is not conducive to the service of the best interest of the two children concerned.
Mr Merritt and Ms Bruckner are the parents of X, who was born in 2012 and Y, who was born in 2014. The two parents have been in dispute with one another in respect of parenting arrangements for the two children since April of 2016. During that time, many judicial officers have been involved in this case, particularly in the Family Court of Australia.
On my brief calculations, over 160 documents have been filed in the case, which now fill nine cardboard document boxes. I am the fifth judge to become involved in the case. On 9 August 2016, an Independent Children's Lawyer was appointed for the two children concerned.
The Independent Children's Lawyer is Ms Melissa Shorter, who is an experienced Adelaide-based family lawyer. She has been involved in the proceedings since her appointment, and has briefed barristers to appear on her behalf, particularly Ms Lindsay, who appeared in the case yesterday.
Pursuant to the provisions of section 68LA of the Family Law Act1975 (Cth), the Independent Children's Lawyer is to be regarded as a party of equal importance to the parents concerned, and she is under a statutory obligation to advocate the outcome which she believes will best serve the interest of the children whom she represents.
At the outset, it is my understanding that the Independent Children's Lawyer essentially supports the position adopted by the father in these proceedings, which is that X and Y should be reunited in his care and he should be conferred with sole parental responsibility for them. As a consequence of this conferral, he seeks to be able to enrol the children at a primary school of his selection. These orders are vigorously opposed by the mother.
By way of background, the parties were in a de facto relationship which began at some time in 2010, and ended with their separation either late in 2014 or April of 2015. The exact date of their separation no longer has any significance. The father commenced these proceedings, as I say, in April of 2016. The positions of the parties throughout these lengthy proceedings have been unequivocal throughout.
The mother’s position is that the father is a violent, alcoholic and antisocial person, and as such represents a risk to the welfare of the two young children concerned. However, as far as I can glean, Mr Merritt has never been charged with any criminal offence, and apart from the mother’s assertion in regards to his violent and antisocial behaviour, there is little, if any, evidence to support her assertions. More significantly, the mother’s view of the father is not congruent with the impressions of any of the significant experts who have engaged with the family during the course of the proceedings.
The father’s position throughout the case has been that, for complex reasons or motivations which are unclear to him, the mother is pathologically opposed to him spending reasonable amounts of time with either of the children concerned, and that the mother’s behaviour represents an emotional risk to the children’s welfare, which needs to be approached rigorously by the Court. It is also his case that in the past, more conciliatory approaches, which have seen the children spend reasonably significant amounts of time with each of their parents, have failed, and the Court needs to take a more rigorous approach to managing the case.
There have been many expert family reports in this matter since its instigation. The first report was one written by Ms S, a social worker, which was released to the parties on 28 July 2017. For reasons which are unclear to me – and which, given the amount of time that has flowed since, are probably not important – the mother did not attend the report-writing process with either of the children. What is important is how Mr Merritt reported to Ms S his impressions of the family dynamic. He said as follows at paragraph 18:
In regards to future time-spending, essentially, [Mr Merritt] described a dynamic where [Ms Bruckner] encouraged an unhealthy attachment between [X] and herself. Further, he alleged that she manipulated the circumstances by having the children make requests on her behalf. She gives the children the choice as to whether they spend the court ordered overnight with him, and offers to collect [X] at the end of the day. She feeds into and encourages [X’s] anxiety.
Initially, the proceedings were listed before Judge Cole, in what was then the Federal Circuit Court. No doubt, as a consequence of the incomplete nature of Ms S’s report, another report writer, Ms H, was asked to write a second report, which was released to the parties on 24 September 2017.
This report was complete in the sense that both the mother and father attended upon Ms H, who had the benefit of observing each of the parents interact with the children concerned. Again, as with Ms S earlier, Mr Merritt reiterated his concerns that there was an unhealthy attachment between X and her mother, which was encouraged by Ms Bruckner.
Mr Merritt indicated his concerns that X was being manipulated and subject to conflicts in her loyalties between her parents, arising from her love for each of them, because of the mother’s conduct. Significantly, at this early stage, the father raised other concerns which have, as the case has unfolded, coalesced and become more defined.
In essence, Mr Merritt indicated that X, as a consequence of her mother’s behaviour, was not attending school as she should. He indicated to Ms H, that in term 1 of the 2017, she had missed 17 and a half days, and been late on other occasions. In term 2, she had missed 11 days, and been late on nine days. And, so far, up to the date of the report, had missed 15 days, and had been late on seven occasions.
Of significance, he indicated, that Ms Bruckner did not inform him as to why X had not been going to school. Ms H was able to observe the children, with each of their parents. Ms H, at this stage, regarded X as a happy, endearing and friendly five year old, who had a loving and strong attachment to her brother, Y and she was described as being very protective of him.
What was significant from Ms H’s perspective was that, very early on in her engagements with X, the child expressed to the consultant, her negativity about her father’s household, and her resistance to spending overnight time. However, interestingly, she said she still loved her father.
In her evaluation of the family, Ms H noted that X was clear about her opposition to spending time overnight with her father. But Ms H noted that X was unable to give any clear explanation as to the reason for her opposition, or provide any contextual background to her opposition.
Essentially, the child did not give an explanation as to why she was so opposed to overnight time. This was noteworthy, given what Ms H regarded as the child’s strong attachment to her father. In these circumstances, Ms H opined that the reluctance was less a result of Mr Merritt’s limited capacity to parent the child effectively, but more to do with her reliance on her mother and her attunement with her mother’s emotional cues.
Interestingly – and, in my view, significantly – Ms H assessed Mr Merritt as being an emotionally intelligent man, who was child-focused and genuine in his desire to play an active and committed role in his children’s lives and who was sensitive to their needs.
In these circumstances, Ms H was concerned about the potential for the mother to be influencing the child, X. Ms H recommended some therapeutic approach. The matter was listed for trial in December of 2018.
RECORDED: NOT TRANSCRIBED
For the sake of the transcript, these reasons are being transcribed. Yesterday, the interim hearing, I think, took about two hours in duration. I may be mistaken about that. They were listed for two hours. Ms Bruckner spoke for much of those two hours. From my recollection, she was given the courtesy of not being interrupted.
I am, for reasons about which I will expand in due course, gravely concerned about her conduct and the conduct of people who are associated with her. The Court has to send a strong message that it won't be subject to intimidation by anyone.
I acknowledge that these proceedings are difficult and challenging, and indeed, controversial. But the fact remains that Mr Merritt and Ms Bruckner are in conflict with one another, and in those circumstances, they asked for the Court to adjudicate the issues between them.
Inevitably, such a process leads to one party being dissatisfied with the outcome. That is inevitable. It is impossible, in adversarial proceedings such as these, for both sides of a case to be satisfied. However, having made a decision, the Court has an obligation, to ensure that its adjudication is respected and followed until such time as another court, on proper grounds, determines that the outcome is wrong or there is another set of proceedings which proceeds in due course.
We live in a society that is rules-based. We, I think, cherish that fact. One of my responsibilities, I think, is to ensure that disputes are settled properly and fairly. And I am, as a judicial officer, entitled to the respect of not being interrupted as I respected Ms Bruckner yesterday. So I accept it is a significant thing to silence Ms Bruckner.
The proceedings are being dealt with electronically because yesterday, Ms Bruckner sent me a medical certificate indicating that she was suffering from some ailment. I cannot remember exactly what it was, but I think it was some inflammation of her pharyngeal area, which I understand is her throat. And yesterday, with her acquiescence, I indicated that I would deliver the judgment electronically so she could be in the comfort of her own home. So that is the reason why these reasons are being listed electronically.
I resume, I think, where I was up to, which was the listing of the first trial in December of 2018. In those circumstances, there was a third family report prepared. It was prepared by Ms H once again. She had recommended, in the earlier report, that there be a gradual increase in the children’s time with their father. She noted the emotional vulnerability of the children, which stemmed from their tender years.
At the third report, Mr Merritt maintained his position that Ms Bruckner was being obstructive, and he indicated that she had problems with significant hypochondria, both for herself and her children. Mr Merritt confirmed that as Ms H had recommended, X had been engaged with a family therapist, Ms G. He, again, raised concerns about the children’s non-attendance at school and kindergarten, and subpoenaed materials had been obtained and some medical records.
At this stage, Mr Merritt indicated that he had changed his response in the proceedings, and rather than want to spend time with the children, he now indicated his view that it was in the children’s best interest to live predominantly with him.
In this context, he asserted to Ms H that the situation between the parents had deteriorated significantly in the last three months, and it was his view that Ms Bruckner represented an unacceptable risk of emotional harm to them. He categorised her conduct at handovers as being hysterical and unpredictable, and her behaviour as becoming increasingly dysregulated. In these circumstances, he thought it was having a direct negative effect on the children.
In this context, Mr Merritt indicated to Ms H that Y’s kindergarten had reported concerns that the mother’s anxiety had resulted in Y missing kindergarten in 2018, and X had also not attended school. At this stage – and I will come back to the school, which remains at the centre of controversy between the parties – Ms H was able to speak with the B School’s then-principal, Ms Q.
Ms Q indicated that the school’s records indicated there was something remiss about X’s attendance at school. By this stage, Mr Merritt had re-partnered. His partner is Ms F. Further, Ms H indicated that Mr Merritt had reported to her that the mother had been abusive towards him and his partner, referring to him as evil and saying she (the mother) would ruin him, and these statements had occurred in the presence of the children.
The mother’s position to Ms H was that the children’s absenteeism from school was justified because they were either fatigued or unwell. She was very critical of the father’s home and she said that the children were scared of the father’s partner. Again, in her report, Ms H was able to see the children engage with each of their parents.
Significantly, when X spoke to Ms H about time in her father’s care, she reported to Ms H that she loves staying there, and in particular, playing with her doll set. She spoke with a level of excitement and pride about her backyard area, which was filled with her birdies, cubbyhouse, trampoline and grass. She spoke positively about some other children who I think are related to the father’s partner, and her animals.
X said Ms F was nice and she liked spending time with Ms F but sometimes missed Daddy. Y was neatly groomed, well-adjusted and shy, but played with his dad in Ms H’s presence.
At the end of her third report in the evaluation section, Ms H said she was concerned about the children’s emotional safety and general wellbeing. She was concerned about their lack of attendance at school and kindergarten, their level of involvement with doctors and in this context, she was concerned not only about their educational attainment but their sense of safety in each of their parents’ care.
From which I take it, Ms H felt that the children were burdened in the sense of how they assimilated the mother’s perception that they were unsafe in their father’s care with their actual experience of him. So in this context, Ms H said she had major concerns at the children’s risk of exposure to family conflict and their emotional burden with divided loyalties. But at paragraph 103 she said:
The children’s presentation at the assessment within their father’s care raised no concerns about their relationship with their father or their safety in his care. He continued to present as a loving, caring and capable father who had genuine concerns about their well-being, an understanding of their needs and a capability to meet those needs. He did not present as being malicious or self-focused in any way.[1]
[1] Family Assessment Report of Ms H dated 18 August 2018.
For reasons about which I am not entirely sure, Judge Cole elected to transfer the matter to the Family Court prior to the November 2018 trial. The matter was referred to Berman J in the Family Court. On the basis of Ms H’s report and issues to do with their non-attendance at school, Mr Merritt brought an application in the proceedings to change the children’s living arrangement that was not successful. His Honour determined to continue the then arrangements.
The next thing of moment which occurred from my reading of the file – and I concede as I said earlier – there are many, many documents and many, many court appearances and I of course cannot claim to have a comprehensive knowledge of all the twists and turns of this burdensome litigation.
But from my perspective the second significant matter seems to be that Mr Merritt brought a contravention application, it being his perception that Ms Bruckner had contravened orders of the Court for him to spend time with the children without reasonable excuse.
This led to yet another family report which Ms H prepared on 16 December 2019 and again the positions of the parties were clear. Mr Merritt and Ms F attended on Ms H and she described them as being clear, logical and detailed in their account of what had happened, and they presented as being child-focused and attuned to the children’s needs.
Ms Bruckner, in contrast, was – and I must be careful not to put undue gloss on what Ms H said in paragraph 14 of the 16 December 2019 report, but the clear import is that Ms Bruckner was somewhat oppositional. She indicated that she would bring Ms H before the Social Worker’s Code of Conduct – whatever that is – and clearly, Ms Bruckner had no great confidence in Ms H.
Indeed, that, I regret to say, is a pattern that has emerged throughout these lengthy proceedings, that Ms Bruckner, when challenged, is inclined to – understandably, perhaps – adopt a combative mode, which is unfortunate.
Anyway, the matter should have gone to trial in March 2020. It didn’t. The trial was vacated and fixed again, and it finally began in July of 2020. On the first day of the trial, Mr Merritt elected not to proceed with his contravention application. I'm not sure why he did that. Perhaps he thought it was better for him to concentrate on the main issues in the case.
RECORDED: NOT TRANSCRIBED
In any event, the trial, which began on 20 July 2020 does not seem to have been a smooth process. The evidentiary issues before Berman J were relatively clear. They concern:
·The issue of the children’s attendance at school and kindergarten in the mother’s care;
·The degree of emotional enmeshment between X and her mother in particular;
·The mother’s psychological functioning and insight into the responsibilities of being a parent, within the context of the emotional abuse, if any, of the children by the mother;
·The veracity of the mother’s allegations of family violence and abuse by the father and mechanisms by which the father could have a meaningful level of relationship with each of the children, and
·The allegation of parental responsibility in circumstances where the parties have quite fundamental differences about health issues to do with the children, particularly those relating to childhood immunisation.
The record that Berman J has provided indicates that the trial took place over 13 days in seven tranches, between July of 2020 and October of 2021. The submissions concluded on the 11 of October 2021. Why the case was so protracted, I do not know. In addition, Berman J delivered the judgment on the 9 of March 2022, about five months after the evidence had finished.
The outcome of the trial was that the father was conferred with sole parental responsibility for the two children, but that was conditional. There was some requirements for him to advise the mother about major long term issues and consult and negotiate with her and make a genuine effort to come to a joint decision.
Significantly, the children were to live predominantly with their father, but to spend reasonably significant periods of time with their mother during school terms on alternate weekends and for significant periods of time during school holidays and on special occasions.
The witnesses who gave evidence before Berman J were the parties themselves, Ms H, the family expert and a medical professional, Professor Mr P, who gave evidence about some issues relating to the mother’s somewhat unorthodox views about child immunisation.
In addition, and significantly, the principal of the B School, Mr M, gave evidence. His evidence concerned issues to do with the truantism of the children at his school. Justice Berman described Mr M as a witness of truth and of being a person who was keen to assist.
Mr M’s concern, however, was that the mother had taken an unnecessarily aggressive stance towards the school, resulting in teachers becoming anxious, overwhelmed by ongoing requests for information, who were either fearful of or refusing to engage with the mother. Mr M gave the fairly extraordinary evidence that Ms Bruckner had been the subject of a prohibition notice from the school.
Justice Berman accepted Mr M’s evidence that the mother had been intimidating to school staff and teachers, and, no doubt, this was a significant factor in influencing the outcome of the proceedings. Significantly, Mr M indicated that he had never had any conflict with Mr Merritt, and Mr Merritt had assisted the children to attend school regularly. In Berman J’s words:
The involvement with the school [and [Mr Merritt]] was not redolent with confrontation, complaint and threats of further complaint or censure.[2]
[2] Merritt & Bruckner [2022] FedCFamC1F 103 at [357].
To some extent, much of the delay in the trial process being finalised seems to have stemmed from the mother’s inability or unwillingness to adhere to interim orders regarding the father’s time with the children. As I say, the evidence in the case finished in October 2021. In this context, Mr Merritt indicated that the mother had withheld the children from him between 18 November 2020 and 5 March 2021. His Honour Berman J was called upon to hear an interim application in April of 2021, which Ms Bruckner didn’t attend.
In those circumstances, orders were made on an ex parte basis, reversing primary care and reopening evidence given that trial judgment was still pending and that the children were delivered up to Mr Merritt.
So these proceedings have been extraordinarily difficult for all concerned and they have gone on for far too long and they still continue. Axiomatically it must be the case that Berman J found that the interests of X and Y would be best served if they lived mainly with their father and subject to his predominant parental direction.
The orders of Berman J have not been subject to appeal. No doubt Ms Bruckner disagrees with the orders but they haven’t been discharged and it’s not my function to review Berman J’s findings. I must accept them unless they are demonstrably wrong.
I don’t accept that they’re demonstrably wrong. I’ve read all the family reports. I’ve read his Honour’s judgment. I have had some limited exposure to Ms Bruckner herself. And as I alluded to earlier, I also have obligations as a judicial officer to maintain the public’s confidence in the administration of justice, including in parenting matters which, as I’ve indicated earlier are frequently controversial and emotionally charged.
That is the nature of the jurisdiction. But people come to the Court and once a decision is made, it is the obligation of those who are bound by the decision to follow it. In these circumstances, the public are entitled to assume that the Court will enforce its decrees and orders and will not tolerate their disavowal by anyone.
In this context it is, I think, useful to reiterate what is attached to every parenting order made in the Court. It’s a document which I think is frequently overlooked. It’s headed Parenting Orders - obligations, consequences and who can help. Under the heading Your Legal Obligations is the following:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so.
A number of authorities which, by which I am bound, speak of the obligation of a parent to do more than passively stand with arms folded in the face of a child’s apparent intransigence to engage with another parent. In addition, it is I think well known that where there is significant discord between parents, it has the potential to lead to what has been described as a perennial struggle between parents for the control of their children. That struggle, regrettably, often has extremely deleterious consequences for the child or children concerned.
Since the orders were made in late 2022, it is Mr Merritt’s case that Ms Bruckner has not done what was required of her, and has not facilitated the children spending time with their parents and the other obligations of the orders as envisaged by Berman J.
In those circumstances, he was compelled to institute further proceedings, which he did in October of 2022. At this stage, he sought what is known as a recovery order in respect of the children – that is, the children concerned, are, in effect, arrested by officers of the federal police and delivered to another person from the parent who is withholding them. At this stage, it was Mr Merritt’s perception that the mother had not followed the orders.
The case ultimately returned before Berman J in October of 2022, and his Honour, on 27 October 2020, from Parramatta where he was on circuit, ordered the mother to deliver up X and Y to the father on or before 28 October 2022, and he issued a recovery order if that order was not complied with. Thereafter, he suspended the mother’s contact order.
On a final basis, Mr Merritt’s position was that he should have sole parental responsibility for the children concerned, that they should – the children should continue to live predominantly with him, and have time with their mother as determined by the Court.
On an interlocutory basis, he sought that the mother undergo some form of psychiatric assessment – it being his opinion – which, of course, is not medically informed – that there must be some psychiatric reason for what he would categorise as the mother’s extraordinary resistance and obstruction of the Court orders.
The mother responded to the application by way of filing an Application in a Proceeding. She did so in mid-November. She sought a stay of the orders of Berman J, that the children live with her, that the Department for Child Protection be invited to intervene in the proceedings, that the children continue to be enrolled at B School, that the Independent Children's Lawyer, Ms Shorter, be discharged, and that there be another family report, but not one prepared by Ms H.
Essentially, it was her case that what she had said throughout the proceedings to date continued to be the case – that the children were distressed, they weren’t fed properly by their father, that he yelled at and disparaged them, that he was drinking, and their medical needs were not being attended to. She also indicated that the children had said to her that they were intent on harming themselves.
After the recovery order was made, Berman J, for reasons about which I am not entirely certain, determined that he should be disqualified from hearing the proceedings further. Whether that was on the application of Ms Bruckner or someone else, I do not know or whether his Honour felt that a fresh judicial mind was needed, I know not.
Anyway, the case ultimately came to her Honour Mead J in late December – just prior to Christmas. And at this stage, it became apparent that the recovery order had not been actioned. In these circumstances, Mr Merritt deposed that he liaised with the AFP officer, Officer Mr GG, in respect of the issue and that he had been surveiling the address where it was thought that the mother was living. But it was thought no one was living there. In those circumstances, Mr Merritt made complaints to SAPOL and made a missing person’s report. No doubt, in all those circumstances, Mr Merritt was extremely anxious.
In any event, the case came on before her Honour Mead J. And on 23 November 2022 in Chambers, as I understand it, her Honour reappointed an Independent Children's Lawyer. Ms Shorter was reappointed. And because of the issues raised in the case, and the fact that the children were apparently missing, she invited the Department for Child Protection to intervene in the proceedings, pursuant to section 91B of the Act.
The Department for Child Protection is a South Australian government department and it has responsibility for the protection of children in the State of South Australia. It is a different jurisdiction to the jurisdiction which I exercise in this Court pursuant to the Family Law Act.
In this Court, I am charged with resolving disputes between parents in respect of parenting arrangements. The Department for Child Protection has a statutory obligation to act when children are in need of care in the sense that their parents or their legal guardians are not in a position to care for them. This distinction is important and I will return to it in due course.
The hearing before Mead J began on 19 December 2022. On that occasion Mead J inaugurated a telephone hearing. Present at that hearing were Mr Merritt, Ms Bruckner, Ms Lindsay, a person Ms AB, who appeared for the Chief Executive of the Department for Child Protection and Mr GG who, as all will recollect, is an Australian Federal Police Officer.
I haven’t been provided with a transcript of what was discussed but I apprehend that Mr GG indicated his difficulties with enforcing the recovery order. In any event, what Mead J determined was that the mother and X and Y were to be present at the mother’s home in Suburb FF at a specified time next time and the police were to go there and execute the recovery order. If the mother wasn’t there, Ms Bruckner was to be arrested and brought to Court, because no doubt her Honour was concerned that there was a possibility that Ms Bruckner might potentially, for all I know, frustrate the order.
The case was adjourned until 21 December 2022. Mr GG was not able to recover the children, although Ms Bruckner was present at her home and therefore the condition precedent for her arrest was not met.
So she was at liberty. At any event, in those circumstances, no doubt Mead J was confronted with a dilemma. What she elected to do was direct that the mother bring X and Y to the Court and she had to do that by 11.20am on 21 December. She directed that the two children should talk to a court expert about what should happen.
Thereafter the Court expert, and this transpired to be Ms HH, could give evidence to Mead J about the circumstances. And at this stage it seems to be the case that Mr GG had reduced his perceptions of his experience of what had occurred at the mother’s home in Suburb FF into an affidavit form which can be summarised as follows.
He said he arrived, when he arrived Ms Bruckner had a family friend present. There was some discussion and Mr GG was admitted to the home and it was noted to be tidy. Mr GG didn’t see the children. At this stage, Ms Bruckner said she discovered that the children locked themselves in a toilet where they were crying and shouting and they would not come out because the police would snatch them and take them away to their father’s. Ms Bruckner was described as being distraught herself but was nonetheless said to be trying to coax the children out and was assisting the AFP in trying to speak to the children.
Ms Bruckner said that Y had a baseball bat and that X had a kitchen knife. The weapons had later been taken from the children with the help of their aunt Ms AC. And Ms Bruckner apparently said that it was wrong for the children to do this and they, the children should explain their feelings.
Anyway, the children came out and they came into the main lounge dining area where Mr GG thought they looked in good health but both had been crying and X was sobbing. The AFP tried to explain the orders but they clung to their mother for support, and then the children apparently ran back to the bathroom.
So in those extraordinary circumstances the recovery order wasn’t effected. The officers questioned X and she made complaints about her father dragging her about the wrists, shouting at them for no reason, he and Ms F drinking to excess and so on and so forth. Essentially the complaints which have been made by the mother throughout these proceedings to date, which have been investigated by Berman J and were the subject of the family reports.
Mr GG formed the view that the children were in what he described as flight or fight mode, and it was his belief that the arming was of the result of the police turning up to take them. He said they calmed down when told that that wouldn’t happen. The AFP reported the matter to the Department for Child Protection.
I mean no disrespect to the officers of the AFP. They have an extraordinarily difficult job to do. There is nothing easy about this case. Everything about it is challenging. However, they, as are all police officers, are officers of the Court, and they have obligations to enforce orders. It is not the role of the AFP to hold their own ad-hoc inquiry. Difficult though their job may be, they have an obligation to do what they're directed to do. Certainly, that was the view of Mead J, who provided some brief reasons in support of what she decided to do on 21 December 2022.
To the mother’s credit, the children were delivered to the Court, and her Honour decided that they would leave the Court with their father. In these circumstances, Ms Bruckner was to go to a secure room and remain there, and she was restrained from interfering with the process. Justice Mead directed that the children should go back to B School from the first day of term one in 2023, and the father was to deliver and collect the children to and from their school.
Significantly, again, Mead J directed that Ms H should compile a further family report. Justice Mead indicated as follows – she was satisfied that the children had failed to comply with orders, and that the children had missed several months of school, which was significant in Berman J’s determination.
She expressed some disquiet about the fact that the recovery order had not been actioned earlier, and she described it as a great tragedy that it hadn’t been facilitated earlier, which had left the children in a position where the message they have been given is that orders of authority are meaningless and they simply do not have to do what they are told. Justice Mead thought that was a very concerning message to be given to children of X and Y’s age.
I must say, I agree with her Honour’s sentiments, and I also agree with and reiterate what I said earlier, that the Court has an obligation that its orders are not disregarded, because many, many, many citizens who are parents come to court to have their disputes adjudicated and resolved. It is trite, I know, but I will say it again – we live in a rules-based society and it should not be open for a party to disregard an order to which he or she is bound.
In any event, what was envisaged by Mead J – that the children would go to their father and would settle into his care before going back to their school, and the case returning in the early new year with another family report to perhaps help with the way forward – none of that occurred.
In these circumstances Mr Merritt was compelled to institute proceedings, which he did on 13 February. In that application and supporting affidavit he indicated, from his perception, what had occurred.
He deposed as follows: in late January, he got a distressed call from Mr M – whom, as I say, is the principal of the B School – saying that X and Y haven’t returned to their class following a break. Mr M called the police and, as did Mr Merritt, reported the kids missing.
In any event, it seems that the children had gone to their mother’s home, which is fairly close by. Y, apparently, returned to school, but X has not. As I alluded to at the beginning of these fairly lengthy reasons for judgment, the present situation is that Y is in his father’s care and X is in her mother’s care.
What happened on 21 December 2022 has been the subject of affidavit evidence from both the mother and the father. That evidence is in fundamental disagreement. It is, essentially, the mother’s case that she was subject to a grave injustice and mistreatment and that staff at the Court abused their powers.
On the other hand, it is the father’s position that the mother and members of the mother’s family, were intent in obstructing what had been decided and obstructed him leaving the Court with the children safely, causing him to be fearful.
I’m not in a position to resolve those issues. But what I will say is this: I cannot tolerate, nor will I, anyone subjecting anyone to intimidation and harassment. These are, in my view, criminal offences and if necessary, the police have to be engaged.
This brings me to the current crisis. This family is in crisis. The two children are separated from one another. It is crude but true nonetheless that there is now a Mexican standoff. The children aren’t going to school. The orders of Berman J aren’t being followed. It is the position of the ICL that the Court needs to reunite the children with one another and they need to live in the father’s care.
In these circumstances, the Department for Child Protection has become involved with the family. They have provided a report. It’s dated 1 February 2023. It’s written by Ms AD, who is the Practice Leader for the Department for Child Protection and Ms AE, who is a Senior Social Worker with the Department. The report has been released to all the parties.
It is the Department’s view that they do not have the statutory obligation to become directly involved in the case, in the sense that this is not a case where their jurisdiction is invoked, because it is their view that there is one viable parent and one unviable parent. And therefore, because there is a viable parent, the two children are not in need of care.
It is their view, from what they know of the case, that the viable parent is Mr Merritt and I mean no disrespect and I appreciate this is hurtful, the unviable parent at present is Ms Bruckner. They have visited X at her home and their impression from police is that the children appear – X in particular – appear scripted. They concede on their observations, which I appreciate they are not paediatricians, there is no evidence to indicate that Y is underweight. Ms Bruckner has been described as combative. When X was attempted to be interviewed, Ms Bruckner said to her, in a forceful manner:
Tell the lady what you told me before. Tell her.
X was described as being hesitant and unsure. The overwhelming effect of the report, which is detailed, is that it is the view of the Department that Ms Bruckner poses a risk to the emotional and psychological safety of the two children. Therefore, they don’t support the children remaining in Ms Bruckner’s care. At page 5 of the report they write as follows:
The Department has significant concerns in relation to [Ms Bruckner’s] inability to meet the children’s education and health needs as outlined within the judgment dated 27 October 2022. Further to this, the Department is concerned that [X], in particular, appears fixated with painting [Mr Merritt] and [Ms F] in a negative light and views this likely as a result of [X’s] exposures to [Ms Bruckner’s] own views at the father’s household.
As I say, the Department has no such concerns about the father’s household. I appreciate that these are interim proceedings, but they are interim proceedings that occur after an adjudicated outcome and after many reports have been prepared. As I indicated at the outset, the factual issues are relatively clear.
The mother asserts that the father is an emotionally abusive and dangerous person. The father asserts that the mother represents an emotional risk to the children concerned. I concede it is perhaps theoretically possible that the mother is right and the father is wrong, but that does not abrogate me from my responsibility of determining this matter on the evidence that is available to me.
In determining whether to make any particular parenting order I must regard the interests of X and Y as the paramount or most important consideration. In so doing, fundamentally, I must take into account two matters which are described as the primary considerations and which are contained in section 60CC of the Act.
Those two matters are, firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents, and, secondly, the need to protect the child from being subjected, to or exposed to, abuse, neglect or family violence.
As a consequence of section 60CC(2A) I am directed to give greater weight to protective concerns.
Abuse is a concept which is defined in section 4 of the Family Law Act 1975 (Cth). It is a concept which includes causing a child to suffer serious psychological harm – serious psychological harm. On the basis of the evidence available to me I consider that there is a significant level of risk that the mother’s conduct does represent the potential to be abusive to the children concerned, particularly X.
I am not Berman J. I did not hear any of the evidence in this case. It is conceivable that I may have a different view about it - I do not know - but that is not what I have to do here. I have to assess risk against the material that I have, some of which is, so far as I am concerned, untested. I cannot defer the assessment of risk until some later stage.
In Dieter & Dieter[3] the Full Court indicated that the assessment of risk is, essentially, a two-pronged inquiry. I have to predict – I have to engage in an exercise in predicting what is the likely occurrence of harmful events, and, secondly, I have got to consider the impact of those events on the children.
[3] Deiter & Deiter [2011] FamCAFC 82.
In this case it seems axiomatic that the children have been withheld from their father. There is, it would seem to me, a significant risk that the children’s relationship with their father, which is significant, is at risk. More significantly, there is a risk that the children will have a distorted and unrealistic view of their father which is corrosive to them because of the mother’s antipathy for them. Further, the children will get a false sense of what is real and what is not real in respect of that relationship. Overlaying all this is the social consequences of the children not going to school.
At this stage I have formed the view that there is a significant level of risk arising from the mother’s conduct. In addition, as I have already indicated, I have to be mindful of the detrimental consequences for the Court’s processes, itself, if the mother is able to exercise her own judgment without question in the light of the Court’s adjudication.
Essentially, why should Mr Merritt be deprived of the love of his children because of Ms Bruckner’s conduct. Mr Merritt was successful in the case. That is how the system should work. And, ideally, Ms Bruckner is under an obligation to persuade, support and encourage the children; that is her obligation as a parent.
I am well aware of the trauma that is implicit in there being a recovery order; it is not a natural thing that police officers go and do what they are directed to do. However, Ms Bruckner has – she can make decisions as to what she does, perhaps; I don’t know. Perhaps she is not capable to controlling her behaviour; again, I don’t know. But from my perspective it is not in the best interests that this unhealthy emotional situation should be allowed to prevail. In addition, I am not prepared to countenance the hysteria of what occurred prior to Christmas.
The police must do what they have to do. There will be a recovery order, and in this context I remind Ms Bruckner, and anyone else perhaps who needs reminding, of the provisions of section 67X of the Act which makes it an offence for a person to prevent or hinder a recovery order; it is subject to a fine of up to 10 penalty units, which I think, is $2,222, or imprisonment for a term of not more than three months.
I am satisfied in this case, in the extraordinary circumstances which I have outlined, that it is in the best interests of the children concerned that I make this recovery order for X. It is in the best interests of the children that they be reunited with one another.
ORDERS DELIVERED
I note that at an earlier occasion Mead J directed Ms H to update the family report, and it is hoped that the report will be available in early March. In those circumstances I will adjourn the matter to 23 March 2023 at 9.30am. In all circumstances I will authorise the father and the Independent Children’s Lawyer to relist the matter on short notice in respect of any issue arising in respect of the enforcement of these orders.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Brown. Associate:
Dated: 28 February 2023
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