Merritt & Bruckner (No 4)
[2022] FedCFamC1F 1067
Federal Circuit and Family Court of Australia
(DIVISION 1)
Merritt & Bruckner (No 4) [2022] FedCFamC1F 1067
File number(s): ADC 1267 of 2016 Judgment of: MEAD J Date of judgment: 21 December 2022 Catchwords: FAMILY LAW – CHILDREN – orders – enforcement of a recovery order. Legislation: Children and Young Person (Safety) Act 2017 (SA) Cases cited: Rice v Asplund (1979) FLC 90-725 Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 21 December 2022 Place: Adelaide Counsel for the Applicant: Litigant in person Counsel for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Lindsay Solicitor for the Independent Children's Lawyer: Shorter Legal Pty Ltd ORDERS
ADC 1267 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERRITT
Applicant
AND: MS BRUCKNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MEAD J
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS:
1.That the father forthwith attend at the Court Children's Services (CCS) in the Adelaide Registry of the Federal Circuit and Family Court Of Australia to collect the children X and Y.
2.That the father depart the said Registry with the children forthwith upon their collection.
3.That the mother be escorted by Court Security to a Secure Room forthwith and remain there in the presence of security until advised that the father and the children have left the Court premises.
4.That the matter be adjourned for Mention to the 15 February 2023 at 9:30am as a face to face hearing.
5.That during the period of adjournment paragraphs 4, 5, 6, 7, 8, 9, and 17 of the order of the 9 March 2022 be suspended.
6.That during the period of the adjourned the mother be restrained and an injunction is hereby granted restraining her form attending at or within the vicinity of one (1) kilometre of B School or/and communicating with any school officer or teacher or senior teacher at the said school.
7.That the father ensure that the children X and Y recommence attendance at B School as and from the first day of term one (1) of 2023.
8.That the father personally take the children to and collect them from school each day SAVE AND EXCEPT in the event that he is unwell in which case he is authorised to arrange for an agent to do so on his behalf.
9.That during the period of the adjournment the Independent Children's Lawyer facilitate arrangements for the children to attend upon Ms H for the purpose of an updated Family Report at the parties' joint and equal expense.
10.That during the period of the adjournment neither party file any further Affidavit in these proceedings without the prior approval of the Court.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
This matter comes back before the Court today in circumstances where there was a trial before his Honour Berman J resulting in final parenting orders made on 9 March 2022.
The order provided for all previous parenting orders to be discharged, for the father to have sole parental responsibility for X who is now 10 years old, and for Y who is eight years old, and then made certain provisions that refer to the father providing the mother with information.
Paragraph 4 of his Honour's order provided for time-spending arrangements with the mother. The remaining orders are what are usually referred to as specific-issues orders relating to handover arrangements, what each of the parents can do in terms of attending at the children's school, various restraint orders, communication arrangements, vaccination issues and travel arrangements.
The very broad facts of the matter are that since a date in August of 2022 the children have neither spent time with their father, communicated with him or attended at school. These are all subjects that were addressed at length in his Honour's judgment of 9 March 2022. His Honour carefully went through each of the complaints of the mother and determined that the evidence did not support those complaints. For the reasons set out in a very extensive 418 paragraph judgment, he determined that the best interests of the children would be met by making the orders to which I have already referred.
As I say, the mother has failed to comply with those orders as of a date in August of 2022. This has resulted in the children missing several months of school, which was a significant issue in his Honour's determination of the children's parenting arrangements. Ultimately, in October of 2022 the father filed an initiating application seeking, effectively, the orders that his Honour had already made but also, on an interim basis, seeking a recovery order.
The recovery order was made by Berman J on 28 October 2022, now almost two months ago. It is a source of some amazement and concern that the order has not to date been effected by the Australian Federal Police. The orders made by this Court are not optional, and they are to be complied with by everybody to whom they apply. It is not a matter of, "Well, we will just bring an application to see what else we can do."
The Australian Federal Police, to my mind, made what could only be described as fairly perfunctory efforts to effect the recovery order, and the great tragedy that has occurred as a result of that is that the children have now been left 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. That is a very concerning message to be given to children of X and Y’s age in any event, and particularly in circumstances where they are isolated from their school, from the influences of their teachers and their other co students, and it may take some considerable time for those messages to be unlearned.
Subsequent to the recovery order issuing, the mother filed an application seeking to stay the orders of Berman J of March of 2022, and orders that the children live with her and that their time with the father be suspended. Her affidavit in support of that application essentially sets out that the children are distressed about returning to the care of the father, that they were very anxious and that she has had them attend upon a general practitioner who has seen fit to, completely inappropriately, communicate with the Court regarding the matter.
If the mother wants to get information from a general practitioner before the Court, the appropriate thing to do is to file a report. I note that, pursuant to the terms of the order of Berman J, the father had the sole parental responsibility for the children in any event, which attaches both to medical and to educational issues. None of the communication received by the general practitioner has been considered by the Court, and will not be until it is before the Court in some acceptable form.
In circumstances where this was coming to a crisis point the mother, to give her her due, complied with the order of the Court of two days ago to make sure the children were at her home at 9 o'clock the next morning. Then, where the Australian Federal Police seemingly became concerned about threats made by the children, we are back in court today. Again, it is to the credit of the mother that she has complied with my order of this morning and ensured that both children were delivered to the child-minding section of this Court so that they could be very briefly spoken to by a child court expert Ms HH. She gave brief evidence, as was required this afternoon to the effect that the children were, and I accept her evidence - understandably anxious but not distressed.
I am not satisfied that the mother has put forward any grounds for her failure to comply with the order to date, namely her failure to comply with the requirements that the children live with the father, her failure to abrogate the parental responsibility for the children to the father as ordered and her failure to ensure that, under any circumstances, the children attend at school on a regular basis.
They are at a very vulnerable age, and this is an enormous gap in their education. I am mindful of the evidence given by the B School principal before Berman J during the lengthy trial - evidence that was very clearly taken into account by his Honour and concerned him in terms of the impact of the mother's behaviour on the children's school attendance, on the relationship between the mother and the school and the concern that the school expressed about the impact the lack of attendance in the mother's care was having on the children.
I am satisfied that the children should be forthwith returned to the care of the father. I am concerned about the children spending anytime with the mother during the period of time that the Department wish to conduct their investigations. I am satisfied that they will do so diligently. It is up to each of the parents to cooperate with the Department. To this point in time the Department has declined to take-up the Court's invitation to participate in these proceedings other than with a watching brief. I am satisfied that in the circumstances of this case that is appropriate.
It is always open to the Department, in circumstances where they consider that there may be risk in terms of the parenting of either parent or, particularly, both parents to take proceedings in the Youth Court pursuant to the Children and Young Person (Safety) Act 2017 (SA), but that is a matter for them. Whether they participate in these proceedings in due course is also a matter for them. I am satisfied that the children's best interests would be met by returning to the care of their father.
There will be no change of school, Mr Merritt, in the near future. They will return to B School until I say otherwise. And, madam, I will be making an order restraining you from attending at the school until I determine otherwise. I am satisfied that in circumstances where they have now been in the care of their mother for the last four months with no opportunity to maintain their relationship with their father - that a brief period of time, some six weeks or so, will give the children an opportunity to settle down, to get back to their school - because if I make it six weeks, that will encompass the children's return to B School - and we will then reconsider matters as of adjourned date although not in any depth, as I am simply going to adjourn a mention to a date in about six-weeks time.
It will be necessary, Ms Bruckner, for you not to attend at or anywhere in the vicinity of the children at the commencement of the school year and not have any contact with the school. I will just check his Honour's orders in a minute, but I think there is an order somewhere to that effect already in place. I intend to make an order now that the father collect the children from the child-minding service, that the father then forthwith leave the premises of the Court, and that you, madam, remain in the premises of the Court - not in the courtroom, but outside the courtroom - until such time as it has been confirmed to you by a court officer that the father and the children have departed.
In the New Year we will then look at the position of the Department. In the event that they are satisfied with the children's care with the father, then it will be an issue of whether the Court is prepared to allow this matter to reopen. To do so either party will have to jump the hurdle, for want of a better expression, of the principle described in the case of Rice v Asplund (1979) FLC 90-725, a case determined in 1979, that is authority for the proposition that unless there is a very real likelihood that there will be a substantial change of orders, matters should not recommence. For those reasons I make the following orders.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 21 December 2022
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