Miller and Harrington

[2007] FamCA 1124

FAMILY COURT OF AUSTRALIA

MILLER & HARRINGTON [2007] FamCA 1124

FAMILY LAW – CHILDREN – With whom the child lives – Orders

FAMILY LAW – COSTS – Between parties – Circumstances justifying order

Family Law Act 1975 (Cth)

APPLICANT: Ms Miller

RESPONDENT: Mr Harrington

FILE NUMBER: BRF 6207 of 2000

DATE DELIVERED: 31 July 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 13 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page of Senior Counsel

SOLICITORS FOR THE APPLICANT: Rees Law, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Forrest of Counsel

SOLICITORS FOR THE RESPONDENT: Murdochs Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

SOLICITORS FOR INDEPENDENT

CHILDREN’S LAWYER:

Mr Galloway of Counsel

Morrison Lawyers

Orders

1. The Mother’s Application in Form 1 filed 1 March 2006 is dismissed.

2. The Mother’s Application in Form 2 filed by leave on 13 April is dismissed.

3. The Mother is to pay the Father’s costs on an indemnity basis of and incidental to all proceedings since the order of Justice Buckley dated 8 July 2005 including:

   a.Application for Final Orders filed by the mother on 1 March 2006;

   b.Application in a Case filed by the mother on 1 March 2006;

   c.Application in a Case filed by the father on 2 February 2006;

   d.Application for Contravention filed by the father on 17 March 2006;

   e.Application in a Case filed by the father (by leave) on 21 November     2006;

   f.Application in a Case filed by the Independent Children’s Lawyer          on 29 November 2006; and

   g.Application in a Case filed by the father on 22 December 2006.

   Save that the solicitors for the Father are not to charge for annexures 1 to 4 inclusive to the affidavit of the Father filed 30 March 2006.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 6207 of 2000

MS MILLER  

Applicant

And

MR HARRINGTON  

Respondent

And
INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Mr Harrington and Ms Miller are the natural parents of two children, J born in September 1992 and R born in September 1995.

2. After a six day contested hearing, Buckley J on the 8 July 2005 ordered the children reside with the Father.  The Mother was to spend time with the children by way of supervised contact for two hours each week for a period of six months.  Thereafter the Mother was to have contact at agreed times but failing agreement on alternate weekends, 5.00 pm Friday to 5.00 pm Sunday and for one half of school holidays.  There were also orders relating to special days and orders dealing with specific issues.  In particular, there was an order that the parents have joint responsibility for the long term care, welfare and development of the children.

3. On 1 March 2006 less than eight months after the trial in this matter the Mother filed an application seeking an order that the children reside with her and that the Father:

   “Have contact with the children as determined by this Honourable Court.”

   This application by the Mother was filed at a time when the children were said to be missing and their whereabouts unknown.  The application, in such circumstances, reflects a strange set of priorities on the part of the Mother.

4. The matter came before me on 13 April 2007.  The Father, the Mother and Independent Children’s Lawyer were all represented by experienced Counsel.  The matter proceeded on the papers.  The Court was assisted by helpful written submissions from Counsel for the Father and Mother.

5. There was an extensive amount of material relied on.  In the Father’s case a total of 32 documents were relied on.  Apart from orders and the reasons for judgment of Justice Buckley these included various subpoenaed documents from the Australian Federal Police, affidavits of the Father and his witnesses, transcripts of previous proceedings in particular the proceedings before Judicial Registrar Smith on 5 January 2007, a financial statement of the Father filed 19 February 2007 and affidavits from the Father’s current solicitor.

6. The Mother’s material consisted of 22 documents commencing chronologically with the Mother’s application for final orders of 1 March 2006, affidavits by the Mother, her parents and other family members, together with reports from Mr G a psychologist in private practice and an affidavit of Ms L a psychologist dated 19 February 2007.  The Mother also relied on an application in form 2 which she sought to file by leave.

ORDERS SOUGHT BY THE FATHER

1. The orders sought by the Father are to be found in his amended response to an application for final orders filed 6 February 2007.  In that document he seeks orders in the following terms:

   “1.That the application of the mother filed on 1 March 2006 be dismissed.

   2.That the mother be restrained from filing any further proceedings or applications in relation to the children or against the father without the leave of the Court.

   3.Any other order that the Court sees fit to make.

   4.That the mother pay the father’s costs on an indemnity basis of and incidental to all proceedings since the Order of Justice Buckley dated 8 July 2005, including:

   4.1Application for Final Orders filed by the mother on 1 March 2006;

   4.2Application in a Case filed by the mother on 1 March 2006;

   4.3Application in a Case filed by the father on 2 February 2006;

   4.4Application for Contravention filed by the father on 17 March 2006;

   4.5Application in a Case filed by the father (by leave) on 21 November 2006;

   4.6Application in a Case filed by the Independent Children’s Lawyer on 29 November 2006;

   4.7Application in a Case filed by the father on 22 December 2006.

   5.That all outstanding orders be discharged.

   6.That the children, [J] born […] September 1992 and [R] born […] September 1995 live with the Father.

   7.That the children do not spend time or communicate with the mother [Ms Miller] or the [maternal grandparents].

   8.That the mother and the maternal grandparents be restrained from having any contact with the children whatsoever and from arranging for any other person to do so on their behalf.

   9.That the father have sole parental responsibility for the children.”

ORDERS SOUGHT BY MOTHER

1. In a form 2 application in a case which she sought to file by leave on the day of the hearing the Mother sought the following orders:

   “1.That the children, [J] born […] September 1992 and [R] born […] September 1995 reside with the Mother and spend time with the father in accordance with the wishes of the children (and the mother will use her best endeavours to support the father’s relationship and encourage the children to spend time with the father).

   2.Alternatively, that the children spend time with the mother one weekend per month from after school Friday to before school Monday; for one half of all school holidays, and communicate by telephone at least twice per week, with such calls to be instigated to the mother by the children from [J]’s mobile telephone supplied by the mother.”

INDEPENDENT CHILDREN’S LAWYER’S MATERIAL

1. There was no additional material relied on by the Independent Children’s Lawyer.  Counsel for the Independent Children's Lawyer did not accept there should be any change to the children’s arrangements on an interim basis as sought by the Mother.  The children are currently living with the Father and his parents at W since their return to the Father’s care on about 9 January 2007.

2. The Independent Children’s Lawyer did not accept that there should be a summary dismissal of the Mother’s application to change residence. The Independent Children’s Lawyer indicated no position on the issue of costs.

THE MOTHER’S APPLICATION FOR ORDERS THAT THE CHILDREN LIVE WITH HER PENDING THE DETERMINATION OF HER APPLICATION FOR FINAL ORDERS

1. As noted, Counsel for the Independent Children’s Lawyer did not support such an order.  Counsel for the Mother does not address this issue in his written submissions and did not advert to it in the course of oral submissions.

2. Leave was only sought to file such an application on the morning of the hearing (13 April 2007).

3. The children were placed with the Father after a six day trial in the first half of 2005.  Since that time, the children have been missing on two occasions – on the first for a period from January 2006 until November 2006 and on the second occasion for a period of about five days in January 2007.

4. Apart from this the Father had to obtain a recovery order for the children to be handed over to him after the orders were issued by Buckley J.

5. There is nothing in the Mother’s material which would persuade me to alter the current position which has prevailed since early January this year.  In the Father’s environment there is evidence the children are well cared for in a material sense.  Both children are attending school and the school reports for both have been positive.

6. There is no criticism of the environment provided by the Father (refer cross examination of maternal grandfather before Judicial Registrar Smith on 5 January 2007).

7. There is no basis to my mind for altering the current position on an interim basis.

8. In her interim application as an alternative the Mother seeks orders that she spend time with the children one weekend a month from after school Friday to before school Monday together with one half of all school holidays.

9. Having regard to the findings which I express later in these reasons I have no confidence that the Mother could be trusted to act in good faith if the Court was to make such orders.  I expect the Mother would set about influencing the children not to return to their father and/or she would arrange to disappear the children by saying they walked out the door and she could not stop them.

10. In light of the later ruling I propose to make in relation to the Mother’s application to re-litigate this matter the question of the children residing with the Mother on an interim basis is academic.

FATHER’S APPLICATION FOR SUMMARY DISMISSAL OF THE MOTHER’S APPLICATION FOR FINAL ORDERS FILED 1 MARCH 2006

LAW TO BE APPLIED

The Rule in Rice v Asplund

1. The general principles of cause of action estoppel in children’s proceedings were laid down in Rice v Asplund.  These principles have been applied in many subsequent cases.  First the Judge must find that a new factor or change in circumstance has arisen.  Subsequent cases have noted that the change in circumstances must be ‘a substantial one’.  The Judge then has to have regard to the principles or more properly ‘factors to be weighed’ which include:

   ·The best interest of the child is paramount.

   ·The length of time the child has been in a particular situation.

   ·The earlier decision of the Court and the reasons for that decision.

   ·The possible advantages or disadvantages of a change in residence.

   Importantly the Judge should consider, but is not bound by, the earlier Court’s assessment of the parties or views as to the best interests of the child.

2. It is well settled that whether or not to deal with the change in circumstances as a preliminary issue or as a factor to be considered upon a full hearing is a matter for the discretion of the trial Judge (in the marriage of D & Y 1995 18 Fam LR 662).

3. Circumstances amounting to a substantial change have been said to exist in the following situations:

   ·Child sexual abuse.

   ·Relocation.

   ·Parental conflict and contravention of orders; and

   ·Re-partnering.

FATHER’S WRITTEN SUBMISSIONS

1. In the course of written submissions Counsel for the Father argued:

   “21.The Court has a discretion to determine whether or not to deal with a Rice v Asplund (1979) FLC 90-725 argument at a threshold level.  The well settled principles that the court should have regard to any earlier order and to the reasons for and the material on which that order was based and should not lightly entertain an application to reverse an earlier parenting order were formulated to “promote the best interests of children who are the subject of proceedings under the Act.  The principles recognise the damages which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of a child by subjecting the child to repeat expert interviews.”  (see Edwards v Edwards [2006] FamCA1230 (22 November 2006)).

   22.In this case, the Court would have regard to the earlier order of Buckley J and his reasons for it.  The Court would have regard to the earlier order of Smith JR and her reasons for it.  The mother demonstrates no change in circumstances of such significance that would move the Court to consider that there is a need to revisit the final parenting order that Buckley J determined appropriate.  If she relies upon the children “running away” from the father last year and expressing wishes to [Ms L] that they wish to live with their mother, they are circumstances of the mother’s conspiratorial making.  It would be a grave injustice and most certainly contrary to the children’s best interests to allow her to re-litigate the issue of the parenting orders on the basis of those circumstances that unfolded.

   23.Critically, she has demonstrated no change in her capacities viz (sic) the children.  Her case is effectively that she should be allowed to seek orders that the children live with her because they say they want to live with her and that they will run away if they cannot.  In all the circumstances presented in this case, that is not sufficiently compelling a reason for permitting her application to proceed through to a trial with all the unsettlement that is likely to involve for the mother.

   24.The Court would not be satisfied that the mother indeed is seriously prosecuting the parenting application.  She never comes to Court unless she is directed to by the Court.  She is recorded by [Ms L] as not really wanting to press the matter to final hearing and having ambivalence about whether or not the children should or even could live with her on a final basis.  There is good reason to believe that the litigation, funded by the maternal grandfather to date, is being directed by him not the mother.

   25.The children in this case need nothing more than absolute respite from the gross instability that they have had in the recent past.  There is nothing in the material before the Court that would cause this Court to consider that the regime currently in place is not in the best interests of these two children and that there is any need to move towards a re-consideration of the parenting regime.”

2. I accept the force of these submissions.

   The findings made by Buckley J in his reasons for judgment accord with my own observations on the evidence which has arisen since that time.

MOTHER’S WRITTEN SUBMISSIONS

1. In the course of the written submissions produced by Senior Counsel for the Mother it is argued:

   “3.The affidavit of [Mr G] filed on 16 October 2006 provides the only evidence of any communication with the children in the period from 16 January 2006 until their return to their Mother.  An affidavit by Graham John Morrison details some contact by the children with him in that period.

   4.In the course of the communications by [the child J] with [Mr G], whilst she raised many of the issues canvassed as to her relationship with her Father canvassed in the judgment of Justice Buckley, there were significant new allegations, the most important of which were the denigration of her Mother and her family by the Father and his family which had caused her to leave.  In addition, the Mother had given both to a child and a relationship had developed between [J] and [R] and that child and the separation from that child was the source of some anxiety, which anxiety was expressed ultimately to [Ms L].

   5.It is a significant fact that the children left their Father’s residence unaided by either of their parents and felt under such stress to take matters into their own hands in their endeavour to achieve what they thought was their entitlement.  That there was no opportunity for the Mother’s family to have instilled into the children the idea that they might take these steps, their contact having been supervised by the [F Contact Centre] and in the absence of any evidence from the Contact Centre which indicated either direct or indirect influence upon the children, is a significant factor, which albeit might have been anticipated by reason of the nature of the evidence before Justice Buckley, was not part of the opinion expressed by Mr [KP] who was the expert before Justice Buckley nor expressed as a finding by Justice Buckley.

   6.At the time of the trial before Justice Buckley, [J] was aged twelve and [R] aged nine.  They are now aged fourteen and eleven respectively.

   7.In her report, [Ms L] raises as issues not significant before Justice Buckley:

   a.the dependence of [R] upon [J] and the protective role assumed by [J];

   b.the option taken by [J] and [R] to “go back into hiding”;

   c.the circumstances and the part played by adults in the removal of the children in January 2006 from the residence of the Father;

   d.the communications with [Mr G] whilst the children were in hiding;

   e.the persistence of the children’s wishes, notwithstanding their limited contact with their Mother;

   f.the likelihood that the children might place themselves in an unsafe position; and lastly,

   g.the issues in relation to their future contact with their Mother in the event that they are to reside with their Father;

   h.the intention of the Mother and her partner to move from [F] now a reality;

   i.        the need for counselling for the children; and

   j.the strong statement made by [Ms L], “that the children feel heard and supported and that they achieve reasonable quality time with their mother, her partner and their siblings.”

   8.It is submitted that there are significant circumstances that are different from, albeit related to, the issues determined by Justice Buckley but that those differences themselves justify the continuation of the Mother’s application.

   9.In considering whether to dismiss the Mother’s application, the Court must have regard to changes in the legislation and the way in which those changes have been interpreted in the decision in Goode v Goode [2006] Fam CA 1346.”

EVIDENCE CONCERNING CHILDREN’S DISAPPEARANCE

1. A critical issue to be considered is whether the Mother or members of her family were complicit in the children going missing for a period of over ten months last year.  Both the Mother and the maternal grandfather have given evidence denying they were in any way involved in the disappearance of the children.  They each deny having any knowledge of the whereabouts of the children during this period.  They each deny any communication with the children on a regular basis during this period.

2. It is the Mother’s case the children were under such stress (in their Father’s residence) they took matters into their own hands in their endeavour to achieve what they thought was their entitlement (refer paragraph 5 of written submissions of Counsel for the Mother).

REPORTS OF MR G

1. Mr G has sworn two affidavits, the first filed on 15 August 2006 and the second 16 October 2006.

2. The first report is dated 9 August 2006.  In that report at paragraph 4 he notes:

   “4.His Honour’s judgment was delivered on 8 July 2005 and directed that the children reside with [the Father].  I met with [the Father] and [the Mother] on 27 July 2005 and subsequently after that with the children and both parents.  Suffice it to say I had great difficulty getting the children to accept that the Court had ordered they live with their Father.”

1. An extensive portion of this report concerns conversations Mr G had with the child J during the period she was missing.

2. At paragraphs 41 to 43 of his report he details J’s version of the events of 16 January 2006 in the following terms:

   “41.In relation to she and [R] running away, [J] told me that it was the end of the Christmas school holidays and that on the morning of 16 January 2006 when her father was at work and when her grandfather was out, she had said to her grandmother that they were just going to a friend’s house down the street.  She said that she and [R] had decided earlier that “this was the day” that they were going to leave.  They sent a text message to [the maternal grandfather] who they recalled had told them if they were walking the streets they were to call him.  They subsequently left the house and waited in a street nearby their father’s house and were collected by [the maternal grandfather].  [J] said they drove to [F] and went to a solicitor’s office.  They met but did not talk to the solicitor.

   42.[J]’s understanding was then that [the maternal grandfather] got telephone calls telling him that he had to go to the police station.  [J] said that they did not want to do this and did not want to return to their father’s.  She said that she and [R] got anxious and decided that they had to get away. 

   43.She then told me that her grandparents went to a friend’s house (I later learned that this was their maternal aunt, [Ms V Miller]).  While they were there they contacted someone else by phone and arranged to meet them somewhere.  Their grandparents and aunt did not know who they had contacted.  [J] said at that point they had planned to catch a taxi but asked whether their aunt would drive them.  She agreed and drove them “somewhere” ([J] would not say where), got out of their aunt’s car and into the car of this other person.”

3. In his second affidavit although the affidavit is not filed until 16 October 2006 the report is dated 9 September 2006.  In paragraph 8 of that report Mr G notes:

   “8.It is my view that [J] has an unshakable belief that she should be able to determine many issues herself.  As I have said to her, and her mother, in separate conversations, there are many people in our community who would respond to a child who, for instance, said they did not want to go to school, by telling them “too bad that is the way it is”.  [J], however, has developed the view that she should be the one who should decide whether she attends school or does home schooling.  I am of the view that [the Mother] knows this only too well.  It may be argued that [J] has developed this belief [the Mother] determined that it was preferable to accede to [J]’s wishes than develop an antagonistic relationship with her.”

EVIDENCE IN FATHER’S CASE AS TO WHY MOTHER AND FAMILY MEMBERS WERE COMPLICIT IN CHILDREN’S DISAPPEARANCE

1. The following factors have to be looked at globally to understand the background to the events being considered.

   i.Buckley J notes implacable hostility displayed by the Mother and the maternal grandparents towards the Father.  This was a significant reason why he determined the children should be placed in the Father’s care.

   ii.After the orders were made the children were not handed over to the Father for several months, until mid-September.  It is a measure of the Mother’s respect for the law that she should be in such blatant defiance of a Court order.  It is a matter for speculation how she would have reacted if the situation had been that the Court had ordered the children to be placed with her and it was the Father refusing to hand over the children.  It was necessary for the Father at that time to obtain a recovery order – the first of many.

   iii.When the children were in the Father’s care in the period from September 2005 until January 2006 there were constant complaints made to the Department of Child Safety by the maternal grandfather about abuse of the children in the Father’s household.

   iv.The children’s disappearance on 16 January 2006 (a Monday) follows closely in time on the first period of loosely supervised contact between the Mother with her parents and the children in a park in the F region.  This occurred on Saturday 14 January 2006.  Prior to that as I understand the evidence all contact visits had been in the supervised environment of a contact centre.  It seems more than a coincidence that the children should disappear two days after the first period of supervised contact outside the Contact Centre.

   v.The Father’s evidence (refer paragraph 14 of Father’s affidavit filed 26 October 2006) is that the Mother bought a mobile phone for the children the week before their disappearance and gave that phone to the children.  The phone was in the Mother’s name.

   vi.In the same affidavit of the Father filed 26 October 2006 at paragraph 10 he notes:

   “10.From piecing together all of the information I have obtained, I believe that [the maternal grandfather] took the children to [Ms V] Miller’s] home on 16 January 2006.  On 18 January 2006, when initially interviewed by the police, [Ms V Miller] said she hadn’t seen the children since the previous Saturday and didn’t know anything about the disappearance of the children.  Subsequently she told the police that she had seen the children on 16 January and she admitted delivering the children to “a male and female that she did not know” outside the Japanese gardens in [F].  I subsequently learnt that the children lived with [Ms N] for about three weeks before [the maternal grandfather] and his wife, [the maternal grandmother] moved them.”

   vii.The Father’s evidence is in large part borne out by the information in the file from the Australian Federal Police (exhibit 1).  What occurs to me as the most striking aspect is that the Mother, the aunt and the maternal grandparents would allow the aunt to take the children to be delivered to people whom they did not know.  I refuse to accept the aunt would hand the children over to strangers unless she had the express permission of the Mother to do so.  The rhetorical question may well be asked, what sort of responsible aunt would allow the children to leave her vehicle at the Japanese Gardens in the F region and enter the vehicle of person or persons unknown?  The answer beggars belief.

   viii.There were Court proceedings before the Judicial Registrar on 4 and 5 January 2007.  The Mother says that on 4 January 2007 the children with backpacks packed simply walked out the door informing her they would contact her when they were aware of the result of the litigation.

   ix.On about 9 January 2007 the children attended at the F Police Station presumably after the publication of a newspaper article and accompanying photographs of the children appeared in a major newspaper.  I have little doubt that whoever was concealing the children at that time took fright that the children’s presence in that particular household would be readily detected by others.

   x.When the children were returned to the Father’s care the Father found a handwritten note in J’s backpack directing her to contact the Judicial Registrar and explaining how to do this.

   xi.The Judicial Registrar has confirmed in open Court that she received such a telephone call from J wanting to speak to her.  The Judicial Registrar did not accept such call.

   xii.In the course of cross examination on 5 January 2007 at transcript page 10 the following exchange occurred:

   “Question:Did you ask them if they knew what to do?

   Answer:I think they all felt the same; don’t know what to do.

   Now you heard her Honour say this morning that [J] had rung into her Honour’s Court Chambers to find out something.  How does [J] know to do that?  - - I left a message that maybe she would like to ring in and speak with JR Smith.

   Question:On what phone did you leave the message?

   Answer:On her mobile.

   Question:Tell me what the message said?

   Answer:         That the Court is adjourned.  She didn’t ring me.  So I rang after I went to the doctor.  The Court is adjourned.  I hoped she would come home last night I just at my end - - no that is right you tell me what you said?

   Answer:Why not go and you know live with your father I am just at my end. - -

   Then I rang back later and said that maybe she should ring the Court and speak with JR Smith - -”

   I find it an unbelievable coincidence that some independent adult has placed a note in the child’s bag to the effect the child should phone the Judicial Registrar and the Mother is communicating with the child to this effect at the very same point in time.  Still the Mother persists with her claim she had no knowledge where the children were staying.

   xiii.When the children were with the Mother in the period November 2006 to January 2007 the Father attempted to spend time with the children.  Such efforts were singularly unsuccessful.  The children in the Mother’s presence handed letters to the Father.  A sample of those letters are annexed to the affidavit of the Father’s solicitor, Andrew Crooke filed on 3 January 2007.  I accept the descriptions given by Counsel for the Father and Counsel for the Independent Children’s Lawyer that the letters are deplorable in their terms.  It is a measure of the Mother’s hatred of the Father that she could stand by and allow the children to hand such letters to their Father.  I am very sceptical as to the terms of the letters.  The letters have about them an adult air which would indicate they were at least in part the subject of dictation by the Mother or other adult family members.

   xiv.The maternal grandfather deposes in his affidavit filed 6 March 2006 that he collected the children from W around the corner from the residence of the Father.  His description of the events of that time are as follows:

   “My wife and I drove to [W], [the Father’s] home town and found the children on the street.  The children got in the car and said, “We are not going back no matter what, there are worst things than dying”.  We brought the children to our solicitor’s office in [F].  Our solicitor, Brooke Pugh, was not working that day, so Mr Steven Rees spoke with us while the children sat in the waiting room.  He rang the Department of Child Safety and they said they would notify the father and for us to take care of the children until I heard from them.  I then received a phone call from [Ms M] of JAB [F] to say I was to take the children to the police station at about 2.00 pm.  As I previously encouraged the children to seek help from Child Safety or the police if they had any problems and they had told me they would die first because of the way they were treated in [F] by both the police and Child Safety, I tried to arrange to meet Child Safety and JAB in a park or somewhere else, but they said no it had to be at the police station or Child Safety.  It was impossible for me to get them to go to either Child Safety or the police station for 2.00 pm.  At about 4.03 pm [Ms T] of Child Safety rang me and told me to have the children at Child Safety by 5.00 pm.  She would talk to the children, but the father was waiting there and they would have to go back to [W] with him.  When I explained to the children that there was no option we had to go to Child Safety and they had to return with their father, they said, “No we are not going back”.  Acting on legal advice, this conversation with the children was tape recorded by me.  They then said, “We are not safe with you”, and ran away, and I have not seen them since.”

   xv.This version of events is in conflict with the account given by Mr S Miller the son of the maternal grandfather and brother of the Mother. I note in an affidavit relied on in the Mother’s material by Mr D Miller filed 19 May 2006 (he is another sibling of the Mother), he makes reference to three of the siblings, Ms O Miller, Mr Y Miller and Mr S Miller all filing affidavits in support of the Father’s case.  I have not had regard to the affidavits of Ms O Miller and Mr Y Miller as they were not relied on for the purpose of the present hearing.  There were a total of eight children in the Miller family.  The inference could well be drawn that the Miller family has been divided and dysfunctional for a significant period of time.

   xvi.In the affidavit of Mr S Miller filed 14 February 2007 he deposes to conversations he had with his father and his sister, Ms V Miller, in relation to the events surrounding the 16 January 2006.  This is in the form of a statement of witness being annexure 2 to that affidavit.  At paragraph 20 of that statement he refers to a conversation with his father as to the circumstances in which he collected the children:

   “20.He then went on to say, “They weren’t where they were supposed to be but it took us a while to find them.  We pulled up beside them on the street and we opened the car door and told them to hop in.”  [J] said, “Is this going to be okay?”  I said, “Yes, hop in it will be all right”.

   22.I recalled [the maternal grandfather] saying to both [H] and I prior to the kids going to live with [the Father] saying, “The kids will run away and I will do everything in my power to help them run away.””

   xvii.In relation to the conversation with Ms V Miller (paragraph 30 and following) at paragraph 33 the version given is in the following terms:

   “33.[The maternal grandfather] then spoke to [the Mother] on his mobile phone and arranged to take the children to the Japanese Gardens to go with people she had organised.  [The Mother] gave [the maternal grandfather] the description of the car and the registration number of the car, it was a white car.  The children would not get back into [the maternal grandfather’s] car.  I [Ms V Miller] offered to take them in my car even though [B] was saying call the police and get them to come here and pick up the children.  I took the children to the Japanese Gardens and took them to a car of people I didn’t know and [the maternal grandparents] didn’t know.  I understand these people were going to meet with [the Mother].  I actually asked them, “Are you going to [the Mother] now?”, and they said, “Yes”.  I wouldn’t have these people (sic) my children as the car was dirty inside and full of bird seed and the man had front teeth missing.

   34.[Ms V Miller] continued on saying, “The next day I was at the shop working when [the maternal grandparents] turned up and said we have got to get our story straight before the police come and see you.”  I asked why were the police coming to see me and [the maternal grandfather] said because I told them too.”

   xviii.The version given by Ms V Miller as reported by her brother Mr S Miller, is far more in accord with the version given by J to Mr G than with the version given by the maternal grandfather.  On balance I am inclined to accept that the maternal grandparents were at Ms V Miller’s place at a time after the maternal grandfather claimed the children had run away from his vehicle.

   xiv.The maternal grandfather at one point in time engaged the services of a private detective, Mr P.  Mr P was formerly in the Queensland Police Service.  He was relying on local contacts and within a short period of time was able to make considerable progress in ascertaining the likely whereabouts of the children.  When he indicated this information to his client his instructions were terminated.  Mr P filed an affidavit of 10 April 2007 and in paragraph 9 of that affidavit he says:

   “9.As a result of my enquiries I was satisfied that [the maternal grandfather] had masterminded the disappearance of the children, [J] and [R].”

   xv.I accept the validity of the opinion expressed by Mr P arising from the enquiries he had made.

   xvi.The view expressed by Mr P is in fact echoed in the material to be found in Exhibit 1, the file of the Australian Federal Police.  A case note entry of 12 July 2006 is as follows:

   “The AFP has conducted a review of the matter and spoken to numerous persons in the [F] district in an attempt to locate the two subject children. Enquiries indicate that the respondent (the mother) is actively hiding the subject children from authorities. The matter is next in Court on 25 August 2006. An investigation is also running parallel for possible offences against section 67X of the Family Law Act 1975 and section 149.1 of the Commonwealth Criminal Code Act 1995.”

   xvii.     In a case note dated 26 July 2006 the following entry appears:

   “The AFP has conducted a review of the matter and spoken to numerous persons in the [F] district in an attempt to locate the two subject children. Enquiries indicate that the respondent/ respondent’s parents are actively hiding the subject children from authorities.”

   xviii.In a case note for the 8 July 2006 it details conversations with a woman, Ms S who resides in the Sunshine Coast district.  Information disclosed by this person indicated the children had stayed with her for eleven weeks between February 2006 and April 2006.  The case note reads:

   “[Ms S] stated that she was a school teacher and that she had five children of her own.  She stated that her own children attended school but [J] and [R] refused to do so.  She stated that she had set some curriculum for the children and stated that she thinks that while they are behind in their studies they were not that far behind.  [Ms S] became evasive when questioned about how the children arrived at her premises.  She stated that there was no religious or social connection and that she may have mutual friends with the mother, however the answers were not satisfactory.

   [Ms S] stated that she arrived home one day in April and there was a man at the front of her house taking photos.  She claims that when she approached the man he walked away from her and entered an old white Commodore bearing Queensland registration number […].  The [Harrington] children allegedly observed this person and his actions.  Later that day [Ms S] departed the house to collect her children from school and when she returned the [Harrington] children had left the premises.  They left a note saying they were leaving but provided no further indication about where they were going.”

   xix.A case note for the 22 August details a conversation with the Father to the following effect:

   “He advised that the children’s disappearance was not related to his church.  He further advised that he is a member of a Christian church (no name), which practices from its members’ homes and that [the maternal grandparents] (respondent’s parents) used to be members until they were expelled for their involvement in the children’s disappearance.”

   xx.It is not a matter that is relevant to my determination but the material would indicate that religion is certainly part of a hidden agenda in this long running ongoing dispute between the households.

   I have no reason to doubt the accuracy of the case notes recorded in the file of the Australian Federal Police.  The views of the police accord with the views of the private investigator, Mr P.

2. Ms S, Ms N, the maternal grandfather, the Mother and others should be aware that time does not run against the Crown.  The effect of this is that there is no time limitation on criminal charges.  If in the fullness of time, be it five years or ten years hence, the children or either of them wish to give their account of the events and their account implicates such persons it may well be that serious criminal charges could be preferred.  It is a dangerous game that is being played to wilfully defy Court Orders.  I find the account given by Ms S inherently improbable that as a school teacher she would allow children to make a decision not to attend school, that she would have the children in her care for eleven weeks and then allow them to disappear without notifying the authorities as to their whereabouts.

1. The report of Ms L is dated 17 February 2007 after the children had been returned to the Father’s care.  At paragraph 8.12 she records:

   “8.12The mother clearly does not want to proceed any further with Court proceedings and she particularly does not want to participate in a trial.  She would prefer that this matter is resolved by way of consent orders, even if this means the children remaining in their father’s care and having time with her as they so please.  This may not be a satisfactory option though from the perspective of the children who are likely to need more definitive arrangements with respect to having time with their mother.  Clearly they miss her and want to be with her.  They have stated quite clearly in the context of the report process that they have no fears in relation to spending time with her.”

2. At paragraph 8.18 she notes:

   “8.18It is again noted that the mother and her partner are in the process of seeking work and are considering this in Central Queensland and/or overseas.  This is likely to preclude them from providing the children with stability, particularly in the context of any formal schooling and/or it may mean that they are not in a position to have primary care of the children.”

3. At paragraph 8.20 she notes:

   “8.20It will be imperative that the children feel heard and supported and that they achieve reasonable quality time with their mother, her partner and their siblings.  If a situation whereby the children take matters into their hands and/or are supported by significant adults to return to hiding can be adverted.  This needs to be balanced against the benefits for them and having ongoing relationships with their father and their educational needs being met.”

CONCLUSION

1. On the evidence available I am prepared to conclude that the Mother and/or her father have been complicit in the children going missing.

2. I am prepared to place considerable weight on the opinions to this effect expressed in the file of the Australian Federal Police and in the evidence of Mr P.

3. I am prepared to place weight on the observations made by Counsel for the Father and the Independent Children’s Lawyer that the Mother at no time displayed emotion over her missing children.  The Mother otherwise appears a highly anxious individual and one would expect her to be distraught beyond measure if the children had been taken by strangers.  I find it bizarre behaviour that while her children are missing she should file an application in this Court seeking an order as against the Father for the children to live with her.

4. I find it inconceivable that children of this age could make such plans that they were able to avoid detection by state and federal police for a period of ten months.  There was clearly adult involvement at every stage and the most likely scenario is that this involvement was orchestrated by the Mother and the maternal grandfather utilising friends or associates who resided in rural areas.

5. I find it inconceivable that adults would take the children into their home without reporting the matter to the authorities unless pressed to do so by other adults, the most likely such adults being the Mother and her father.

6. I am reinforced in the views that I have formed in this matter by the conflicting versions given by the maternal grandfather and the Mother on one hand, and the versions given by J, as reported by Mr G, corroborated by the affidavit of Mr S Miller.

APPLICATION OF THE PRINCIPLES IN RICE V ASPLUND TO THE PRESENT FACTS

1. Having determined the Mother has been complicit in removing the children from the Father’s care for a period of ten months last year, it remains for me to consider whether she should be free to litigate once again the issue of where the children should live.

LENGTH OF TIME INVOLVED

1. Buckley J’s decision was given on 1 July 2005.  As noted the Mother’s challenge was filed within eight months.  It is now over two years since the original order was made although the children have only had a little over half that period of time in their Father’s care.  The time for assessing whether there has been a substantial change of circumstance is the present time – the time when the ruling is to be made.

SUBSTANTIAL CHANGE IN CIRCUMSTANCE

1. Almost all of the circumstances referred to by Counsel for the Mother in his written submissions either existed prior to the determination by Buckley J (such as the children’s wishes to reside with their Mother) or have arisen as a result of the conduct of the Mother and as such goes against her application rather than for it.

2. I place little weight on the claim the Mother is denigrated in the Father’s household.  Such denigration would pale into insignificance in light of the conduct in the Mother’s household such as allowing the children to write letters to their father in the terms they did.  Similar denigration occurs in the constant stream of claims of alleged abuse made to the Department of Child Safety emanating from the maternal grandfather.

3. The Mother has given birth to another child in the intervening period.  The Mother already had one child to her current partner at the time of Buckley J’s determination.  His Honour took into account the children’s relationship with that child in making his decision.  The fact there is now a second child is not of sufficient weight to lead to the litigation being reopened.  The fact that the children are now two years older is again of itself not a sufficient justification to allow the matter to be re-litigated.

4. I have had regard to the submissions of Counsel for the Mother and Counsel for the Independent Children’s Lawyer but I have reached the firm view it is time this litigation was at an end.

5. To allow the children to be further interviewed and to be the subject of further litigation is likely to have a serious adverse impact on them particularly having regard to the destructive forces to which they have been subjected over the last two years.

6. The evidence would indicate the children are well settled in their Father’s household.  They have not sought to run away.  The school reports for the children are positive in terms of their scholastic progress when subjected to mainstream education.  I see no merit in the possibility of exposing the children to the Mother’s environment where schooling appears to be regarded as an optional exercise depending on the wishes of the children.

7. In coming to this conclusion I take into account the Mother’s statements to Ms L that she does not wish the matter to proceed.  She expressed similar views when being cross examined on 5 January this year.  An inference could well be drawn as suggested by Counsel for the Father, it is the maternal grandfather who is wishing to pursue the litigation further.

8. Most importantly, there is no evidence to suggest the Mother has demonstrated a capacity to facilitate a meaningful relationship between the children and their Father in the event her attempt to re-litigate was ultimately successful (refer paragraph 14 of submissions of Counsel for the Father).

9. I have considered the four options canvassed by Ms L in her report.  The option that for the present would best promote the interests of the children is to allow them to remain in their present circumstances with no communication with their mother or members of her family.  It is an unfortunate option but one for which the Mother must ultimately accept responsibility.

10. For the above reasons I propose to summarily dismiss the Mother’s application filed 1 March 2006.

COSTS/INDEMNITY COSTS

1. Section 117(2) and (2)(a) of the Family Law Act are in the following terms:

   “117(2)[Costs order as court thinks just] If, in the proceedings under this act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections 2(A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise as the court considers just.

   1172(A)[Considerations relevant] In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   a.the financial circumstances of each of the parties to the proceedings;

   b.whether any party to the proceedings is in receipt of assistance by way of legal aid, and, if so, the terms of the grant of that assistance to that party;

   c.the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of factors, production of documents and similar matters;

   d.whether the proceedings were necessitated by the failure of a party to the proceeding to comply with previous orders of the court.

   e.whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   f.whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   g.        such other matters as the court considers relevant.”

2. On the issue of costs, reliance was placed on two affidavits by the Father’s solicitor, Lesleigh Anne Mayes filed 19 February 2007 and filed by leave on 13 April 2007.  In the first of those affidavits at paragraph 3 thereof, Ms Mayes states that her firm was engaged as the Father was dissatisfied with his previous lawyers.  She notes in paragraph 4:

   “4.[The Father] may currently be entitled to apply for a grant of Legal Aid. Murdoch Lawyers does not do Legal Aid work.”

3. Pursuant to section 117(2)A one of the matters the Court is required to have regard to is:

   “Whether any party to the proceedings is in receipt of assistance by way of Legal Aid and, if so, the terms of the grant of that assistance to that party.”

4. The view that I take is that the Father is entitled to engage solicitors of his choice. It will be a sad state of affairs if he is not able to do that. It is not the law that he is required to engage a firm that does Legal Aid work. Murdoch Lawyers may do pro bono work or they may not. It is an irrelevant consideration for the present enquiry which is limited to the matters that the Court must have regard to pursuant to Section 117(2)A. The fact that a litigant may be entitled to Legal Aid but does not take that option is to my mind not a relevant factor when assessing whether another party to the proceedings should or should not be liable for such costs.

5. At paragraph 5 of the affidavit Ms Mayes refers to the client entering into a client agreement.  A copy of the client agreement is annexed.  I note that the fees for a senior partner is at an hourly rate of $436 and for a partner at an hourly rate of $396.

6. The charges set out in the cost agreement to my mind reflect commercial rates for experienced practitioners in this jurisdiction in South East Queensland.  There is nothing about the client agreement which smacks of excessive charging.

7. In paragraph 6 of her first affidavit, Ms Mayes states:

   “6.I have been advised and verily believe that [the Father] does not have the wherewithal to meet our costs and he has been provided with financial assistance from his family and friends to meet our costs.”

8. I have perused the financial statement of the Father sworn on 17 February 2007.  That reveals he has a weekly income as a tradesman of $660.  He has property of a total value of just over $10,000.  He has no superannuation to speak of.  His expenditure is limited to $162 per week.  This does not include normal cost of living expenses as he is residing with his parents.

9. The amount he receives by way of child support for the care of the children is $6.94 per week from the Mother.

10. At annexure 2 to her affidavit Ms Mayes attaches an open letter dated 6 February 2007 containing an offer of settlement.  I am satisfied from the terms of that letter that it is totally consistent with the orders that I am about to put in place.

11. In the second affidavit, Ms Mayes estimates the fees incurred from when her firm commenced to act in September 2006 until the current time.  She indicates that for the period to 30 March 2007 their client has been billed $49,987.  There is work in progress of $4,100.  She estimates a further $5,000 up to and including the hearing of 13 April 2007.

12. Having regard to the amount of work that was required in a matter such as this I do not find the cost estimates excessive.

13. Annexures 1, 2 and 3 to the affidavit are valuations of properties in which the Mother and/or her partner hold an interest.  I propose to disregard the property at O registered solely in the name of the Mother’s partner.  The estimates given for the property in the F region in which the Mother has a 50% interest is in the range $190,000 to $210,000.  The South East Queensland property is estimated in the range of $175,000 to $190,000.  The Mother in her financial statement estimates the F region property at being worth $200,000 and the South East Queensland property at $182,500.

14. She details the mortgage in total to be $73,000 on one property and $138,000 on the other property.

15. I have had regard to the written submissions by Counsel for the Father and the Mother on the issue of indemnity costs. 

LAW TO BE APPLIED

1. There is a general presumption that parties to proceedings under the Act will bear their own costs.  There is scope however for a Judge to make an order for costs that is considered just having regard to the circumstances in section 117(2A).

   Where an order for costs is made it is generally made on a party and party basis and the Judge should not depart from that except in exceptional circumstances refer Kohan & Kohan [1993] FLC 92 340. In that case the Full Court (Strauss, Lindenmayer and Bulley JJ) noted:

   “i.The Court has power to order costs on an indemnity basis and such costs may be ordered where they have been incurred under a cost agreement which departs from the usual scale of costs.  This power is not inhibited by anything in section 117 or section 123 or the Family Law Rules.  At most it might be said that the general expectation underlying the Rules is that costs will usually be taxed either on a party and party basis or on a solicitor and client basis - -

   iii.It is fundamental to the exercise of the discretion to make an order for indemnity costs that the Judge should understand that such an order is a very great departure from the normal standard and should know the terms of the agreement, the extent to which it exceeds the parameters set by the scale, and its likely impact on the financial position of the parties.  This impact is a relevant matter under section 117(2A) sub a and g that agree to which a costs agreement departs from the established norm and the financial significance of such a departure may be reasons for not ordering costs on an indemnity basis.”

2. In the decision of Munday & Bowman reported at 22 FAM LR at 321 Holden CJ dismissed an application for indemnity costs.  In that instance the terms of the costs agreement had not been adequately disclosed to his Honour.

3. I have had regard also to the decision of the Full Court in the matter of Roth & Quinn (Holden, May and Strickland JJ) a decision handed down on 6 January 2005 and the decision in Zhu & An a decision of the Full Court (Bryant CJ, Coleman and May JJ) handed down on 4 May 2005.

4. The exceptional circumstances in this matter include:

   ·The Mother refusing to comply with Court orders by being complicit in the removal of the children from the care of the Father.  I have no doubt that a great deal of expenditure has been incurred by the Father simply attempting to have the children returned to his care pursuant to the orders made by Buckley J on 8 July 2005.

   ·The Mother giving false and misleading evidence as to her lack of knowledge as to the whereabouts of the children.

   ·The Mother instituting proceedings to re-litigate issues within eight months of a final hearing on the same issue.

   ·The Mother’s conduct generally of constantly undermining the Father’s position in relation to the children.

5. There is inherent in almost every application where indemnity costs are granted a degree of censure of a litigant’s conduct.  The Mother’s conduct as previously found by me in these reasons has been nothing short of reprehensible.

MOTHER’S ABILITY TO PAY COSTS

1. The Mother’s father as I understand the position has been responsible for her costs to date.  The Mother has two young children in her care and does not work.  She resides with her partner.  She discloses receipt of a family benefit of $112.50 per week.  Her partner’s weekly income is $900 per week.  The only expenditure she says she has is the sum of $6.94 by way of child support.

2. The Mother does have the 50% equity in the South East Queensland property.  There is no evidence as to whether this property is rented or not.  No details are provided in the Mother’s financial statement.  It may be the property is rented but repayments on the mortgage are such that the property does not generate a profit.

3. I am satisfied that having regard to the Mother’s interest in the 50% equity in the South East Queensland property and the equity in the home in which she currently resides, it is appropriate that there be an order for costs.  I will make the following order:

   The Mother is to pay the Father’s costs on an indemnity basis of and incidental to all proceedings since the order of Justice Buckley dated 8 July 2005 including:

   a.Application for Final Orders filed by the mother on 1 March 2006;

   b.Application in a Case filed by the mother on 1 March 2006;

   c.Application in a Case filed by the father on 2 February 2006;

   d.Application for Contravention filed by the father on 17 March 2006;

   e.Application in a Case filed by the father (by leave) on 21 November

   2006;

   f.Application in a Case filed by the Independent Children’s Lawyer

   on 29 November 2006; and

   g.Application in a Case filed by the father on 22 December 2006.

   Save that the solicitors for the Father not to charge for annexures 1 to 4 inclusive to the affidavit of the Father filed 30 March 2006.

NOTATION:   By way of explanation these annexures consist of the orders and reasons for judgment of this Court which are readily available on the Court file.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate

Date:  31 July 2007