(No 2)
[2023] FedCFamC2F 592
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Merritt & Bruckner (No 2) [2023] FedCFamC2F 592
File number(s): ADC 1267 of 2016 Judgment of: JUDGE BROWN Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – parenting proceedings concerning children aged 11 & 9 – parties have been engaged in litigation since 2016 – proceedings finalised by way of final order made in Division 1 of the Court in March of 2022 following lengthy contested hearing – trial judge determined that the children concerned should live with the father and he be conferred with sole parental responsibility – father subsequently recommenced proceedings alleging mother had withheld the children from him in contravention of the orders – original trial judge has recused himself – recovery order subsequently issued – children subsequently returned to father in controversial circumstances – older child has returned to mother – further application for recovery order – issues of child abuse – involvement of Department for Child Protection – application to disqualify Independent Children’s Lawyer – nature of interim hearing – assessment of risk – assessment of views of children – weight to be given to children’s view – best interests Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 68L, 68LA, 91B Cases cited: B & B (1988) FLC 91- 957
Deiter & Deiter [2011] FamCAFC 82
Dickens & Dickens [2016] FamCA 115
Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 92-286
Isles & Nelissen [2021] FedCFamC1F 295
Jurchenko & Foster (2014) 51 Fam LR 588
Kingley & Arndale (No 2) [2010] FamCA 968
Knibbs & Knibbs [2009] FamCA 840
Lloyd & Lloyd & the Child Representative (2000) FLC 93-045
M & M (1988) FLC 91-979
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright (2007) 37 Fam LR 518
Merritt & Bruckner (No 2) [2022] FedCFamC1F 893
Merritt & Bruckner (No 4) [2022] FedCFamC1F 1067
Merritt & Bruckner [2023] FedCFamC2F 208
MRR v GR (2010) 240 CLR 461
Rice & Asplund (1979) FLC 90-725
Slater & Light [2013] FamCAFC 4
T & L (2000) 27 Fam LR 40
W & W (abuse allegations: unacceptable risk) [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 255 Date of hearing: 5 May 2023 Place: Adelaide Applicant: Appeared in person Respondent: Appeared in person Solicitor for the Independent Children's Lawyer: Ms Shorter, Shorter Legal ORDERS
ADC 1267 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BRUCKNER
Applicant
AND: MR MERRITT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BROWN
DATE OF ORDER:
19 MAY 2023
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The oral application made by the mother for the dismissal of the Independent Children’s Lawyer is dismissed.
2.The children of the relationship X born in 2012 and Y born in 2014 (‘the children’) live with the father and he have sole parental responsibility for each child.
3.The children communicate with the mother by telephone/FaceTime on one occasion each week on a day and time to be agreed and in default of agreement, each Sunday at 4.00pm, for a period of up to 30 minutes, with the father to be at liberty to have the communication on loudspeaker and to supervise the contact.
4.The mother shall initiate the communication referred to in paragraph 3 herein and the father shall ensure the children are available to accept the call.
5.The mother is at liberty to forward to the children:
(a)letters,
(b)cards and gifts on special occasions such as the children’s birthdays, Christmas, graduation etc.
6.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon a Family Consultant appointed under Regulation 7, nominated by the National Director of the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 1 December 2023 and that the family report address:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Family Consultant considers important to the welfare or best interests of the children.
7.Not later than 4.00 pm on 26 May 2023 the parties must provide their contact telephone numbers and email addresses to [email protected].
8.Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
9.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
10.The Family Consultant shall be at liberty to inspect any material on the Court file including but not limited to all filed documents, previous family reports and co-located reports provided to the Court.
11.Upon the family report being provided to the Court, the Court will release the report and provide a copy to each party (or if represented, the party’s lawyer) and to the Independent Children’s Lawyer in the proceedings.
12.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
13.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.
14.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.
15.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 14 & 15 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
16.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.
17.Further consideration of the matter is adjourned to 8 December 2023 at 9.30am for directions to take place at Court on a face to face basis.
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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to interim parenting arrangements for two children – X born in 2012 and Y born in 2014. The parties to the proceedings are X and Y’s parents – their father Mr Merritt; and their mother Ms Bruckner.
To say that the proceedings have created significant controversy and heartache for all concerned would be an understatement and yet, after over seven years of intense and bitterly contested litigation, the end of the case does not appear to be in sight. Whatever is the outcome it will be dire for X and Y and I gravely fear that they are at risk of suffering long term harm as a consequence.
Mr Merritt and Ms Bruckner are not the only parties to the proceedings. At a much earlier stage, it was ordered that the two children be represented independently of their parents. The Independent Children’s Lawyer (“the ICL”) concerned is Melissa Shorter, an experienced family lawyer.
On 23 Feb 2023, I attempted to outline the complicated and conflicted circumstances, which had led to the parties being enmeshed in court proceedings concerning care arrangements for X and Y since April of 2016.[1]
[1] See Merritt & Bruckner [2023] FedCFamC2F 208.
At that stage, I decided that X and Y should live with their father and spend no time with their mother. This was in conjunction with a recovery order directing police officers to remove X from her mother and deliver her to her father, so that the two children concerned could live in the same household.
The recovery order was executed on 2 March 2023 and X and Y have been in their father’s care in the period since. In addition, orders had been made authorising Mr Merritt to enrol the children at a school of his selection and prevent, by formal injunction, the mother from coming into contact with them or attempting to remove them from their father’s care.
Mr Merritt, in accordance with this order, has now enrolled the children at AF School, which the mother characterises as a poor school, which the children do not like attending. In addition, she asserts that it is not appropriate that the children travel to the school by bus.
On 23 March 2023, against this background of extraordinary urgency and controversy, I directed that a Specific Issue Report be prepared directed towards exploring two specific issues defined in the following terms:
·The means and any appropriate conditions which are attached to any process through which the children interact and/or spend time with their mother; and
·Any view the children express in regards to this issue and any factors impacting upon the expression of such views.
The report was prepared, at short notice, by Ms AG, a Court Child Expert, with qualifications in psychology. Ms AG’s report followed a number of other family reports, prepared over the preceding years for the court, by Ms H, a social worker. Ms Bruckner no longer has any confidence in either the experience or impartiality of Ms H to provide further reports to the court.
Ms AG’s report involved her interviewing Ms Bruckner firstly, and then Mr Merritt secondly by means of video link on 4 April 2023 and thereafter a direct interview with both Y and X, on the court premises. It is Ms Bruckner’s view, for reasons which I will detail in due course, that this process was both flawed and biased.
Necessary, given the court ordered care arrangements for the children, this necessitated Mr Merritt bringing the children to see Ms AG and enabled her (Ms AG), albeit briefly, to observe the children with their father but not their mother. In addition, after this process, Ms AG took the opportunity to re-engage with Mr Merritt and clarify some aspects of the case with him.
It is Ms Bruckner’s position that it was unfair that Ms AG spoke to Mr Merritt and not to her. In addition, she asserts that it would be imprudent for the court to put on great reliance on what Ms AG’s observed. From her perspective what is important is what the children actually said to Ms AG.
In contrast, it is the submission of the ICL and Mr Merritt that the former is more important because the statements of the children are reflective of some degree of control, which the mother wields over them. From their perspective, this is tantamount to abuse, as it has the potential to cause serious emotional harm to X and Y, and as such, the court’s preeminent responsibility is to protect the children from coming to harm. As will be detailed in due course, there is evidence available from the South Australian state based authorities, charged with protecting children from coming to harm in this state, to support the father and the ICL’s position.
These reasons for judgment are directed towards the resolution of these highly complex issues, within the context of an abridged interim hearing. However, the hearing does not occur in a vacuum, given the length of time the parties have been before the court. Regrettably, in raw terms, it is more probable than not that what has occurred in the past is the best indicator of what will happen in the future.
BACKGROUND
As I observed, in the judgment of 24 February 2023, I am at least the fifth judicial officer, who has been called upon to adjudicate the long standing controversies arising between the parties regarding parenting arrangements for X and Y. In this context, to Ms AG, Ms Bruckner reported that;
[S]he would be “disappointed” if a Judge with “fresh eyes” does not recognise the previous Family Assessment Reports are now outdated and such information is no longer relevant, and will consider it to be an “injustice”. She explained that the children did not express any concerns in relation to the father at five or six years of age, but have since done so, and as such, significantly less time with her will not be in their best interests. She added that both children have since made disclosures of concern to a range of sources (such as the Australian Federal Police, their previous school, peers, and doctor) and will continue to run away if they remain primarily with father.[2]
[2] See Specific Issues Report dated 12 April 2023 at [11].
On the other hand, Mr Merritt reported that he lacked confidence that Ms Bruckner would follow court orders, in future, in respect of the children spending time with her and return them in accordance to him in accordance with any such order. Rather, he feared that she (Ms Bruckner) would attempt to emotionally manipulate or suborn the children to make spurious complaints that he (Mr Merritt) had mistreated them and encourage them to attempt to escape his care.
It is his view that the outcome proposed by Ms Bruckner has the potential to be extremely emotionally injurious to the children, as is their continued involvement in the court process, which he asserts is the result of the mother’s dual incapacity to accept that he has a beneficial role in the on-going parenting of X and Y or to abide by orders of the court with which she disagrees.
Essentially, the positions of the parties remain polarised, with each asserting the other represents a significant risk to the safety of the children – the mother asserting that the father is a compromised parent, for a variety of reasons, including that he has been violent towards her and has a significant alcohol dependency and otherwise has a coercive and controlling personality; the father that the mother is incapable of supporting his proper level of relationship with the children and, as a consequence, will continue to subject each of them to a significant level of manipulation, in order to achieve her ends, which is psychologically damaging to them.
Accordingly, each of the parties seeks diametrically opposing orders in respect of X and Y. In addition, although there was a protracted trial, before Berman J, which began in the Family Court and ended in March of 2022, it seems inevitable that there must be yet another final hearing.
In these circumstances, prior to any such final hearing, it is Mr Merritt’s position that the two children should continue to live with him, for a period of around six months, during which they should have only limited electronic contact with their mother. This is the position recommended by Ms AG, who also proposes that Ms Bruckner undergo a course of counselling to help her have a greater appreciation of the importance of following court orders.
In Mr Merritt’s submission, such a regime will enable them to consolidate their relationship with him and be protected from what he would characterise as the potentially undermining influence of Ms Bruckner. Only after such a moratorium should the court consider the children being reintroduced to their mother and then only in a graduated manner in conjunction with appropriate professional advice.
On the other hand, Ms Bruckner has serious criticisms of what she would characterise as a flawed process before Berman J and of the actions of judicial officers afterwards, myself included, who have responded to the difficulties arising between the parties, in respect of the implementation of the parenting regime envisaged by Berman J for the children to live with their father and spend substantial and significant time with her, with a level of cognitive bias characterised by groupthink.
In these circumstances, she seeks the following orders:
·X and Y live with her and she have sole parental responsibility for them;
·The children be re-enrolled at their former school, B School;
·The father spend time with the children every second weekend, from the conclusion of school on Wednesday until the commencement of school the following Tuesday – essentially a week about arrangement;
·The father and his partner be restrained from denigrating the mother or her family to the children and any of their teachers; and
·The children be exchanged at Suburb O Police Station and the parties communicate with one and other via an app selected by her.
In addition, during the course of the proceedings, Ms Bruckner has sought the removal of Ms Shorter as ICL on the basis that she is biased and has not properly performed her statutory obligations towards the children, whom she represents.
Ms AG’s report was released to the parties on the afternoon 12 April 2023, shortly in advance of a further hearing scheduled for 14 April 2023. This hearing however did not proceed as Mr Merritt indicated that he had not received the Specific Issues Report, which had been emailed to him. I accepted that this was the case.
Ms Bruckner also indicated that she herself had only just received the report, less than 48 hours prior to the hearing, and therefore she too had not had a sufficient opportunity to properly consider its contents. However, when Mr Merritt sought an adjournment, Ms Bruckner demanded that the case continue. I can understand her vehemence.
In these circumstances, notwithstanding the vigorous objection of Ms Bruckner, the case was rescheduled for 5 May 2023. In the meantime, Ms Bruckner indicated that she wished to cross-examine Ms AG regarding the contents of her report and the recommendations made by her. Necessarily, Ms Bruckner disagrees with what Ms AG has recommended.
In these circumstances, arrangements were made for Ms AG to attend court and she was extensively cross-examined by Ms Bruckner, who continues to be self-represented, during the hearing on 5 May 2023.
Ms Bruckner accepts some aspects of Ms AG’s report, namely that X and Y each expressed a strong wish to live with her and are highly critical of their father but rejects Ms AG’s interpretation of those wishes and the factors which have influenced the children to express them.
Essentially, Ms Bruckner contends that the court should take what the children have said to Ms AG on its face value and it is imprudent for it to go behind those views, as Ms AG has done. This is particularly so in the context of what Ms Bruckner would say have been the children’s direct actions, since the orders of March 2022 were made, which indicate unambiguously that X and Y want to live with her and are strongly antipathetic towards their father.
In general terms, Ms AG accepted that the children had a close relationship with their mother. In this context, when she (Ms AG) questioned them in respect of their views about each of their parents, both X and Y were positive about their mother and generally negative about their father. However, the content of Ms AG’s interviews with the children did not lead her to support the mother’s proposal, as it was not congruent with her (Ms AG’s) personal observations of the children, with their father, when he brought them in for interviews.
In this context, Ms AG observed the children to be comfortable and emotionally responsive to their father. In addition, Ms AG’s own assessment of Mr Merritt as a child focussed and insightful parent was not consistent with either Ms Bruckner’s description of him or that of the children.
In these circumstances, in her written report, Ms AG wrote as follows:
Whilst it is acknowledged, and agreed upon with [Ms Bruckner], that the children should be provided with opportunities to express their views, significant concern continues to be raised that the children’s views do not present as entirely their own, and remain inconsistent with their interactions with their father. As such, weight has not been given to the children’s expressed views in these circumstances. It is acknowledged that the children love their mother, and seek to spend time with her. Given the nature of their entrenched views, and continued pressure to present the father in a negative light, however, it is believed that they require time to continue to focus upon the strengthening of their relationships with him, as well as time to internalise that they are allowed to love him and to enjoy time spent with him. It is considered crucial to focus on the father-child relationship at the present time, whilst the children are still at an age where they can continue to connect positively with him, before they move forward into their teenage years, when they are likely to become more independent in their views, or further influenced by other external factors. As such, it would seem appropriate for [X] and [Y] to maintain telephone contact (supervised) with the mother at present, such as weekly, to occur at a specific time on a specific day (to work around with their other commitments) for a period of six months, as well as letters, cards or presents (such as in relation to the upcoming Mother’s Day), prior to consideration of face to face time-spending occurring in the future.[3]
[3] See Specific Issues Report dated 12 April 2023 at [47].
Both Mr Merritt and Ms Shorter endorse Ms AG’s recommendations and, in these circumstances, elected not to cross-examine her. Necessarily, Ms Bruckner does not and, as previously indicated, subjected Ms AG to a protracted cross-examination.
THE ISSUES IN THE CASE
During the lengthy proceedings, initially in the Federal Circuit Court and then the Family Court, concluding with the judgment of Berman J delivered on 9 March 2022, the mother lived in Suburb FF, a suburb of Adelaide, whilst the father lived in Suburb AH, a reasonably proximate suburb. The children concerned historically had attended at school at B School, which is very close to the mother’s home and reasonably proximate to the father’s former home in Suburb AH.
It is common ground that, after the evidence before Berman J concluded in October of 2021, Mr Merritt moved to Town AJ in the Region AK. It is Ms Bruckner’s view that Berman J was misled by Mr Merritt in respect of his plans for the future living arrangements for the children, whilst the trial process was engaged and therefore the resulting decision of what is subsequently become known as Division 1 of the Federal Circuit & Family Court but was previously known as the Family Court must be considered to be flawed.
As I will detail further in due course, it is my impression that the decision of Mr Merritt to move to Town AJ – a decision of which Ms Bruckner is highly critical – and its logistical implications for which school the children should attend, caused the still burning controversies between the parties to become a conflagration, after the judgment was delivered, with consequences which continue to reverberate for all concerned, with disastrous implications for the two children.
As previously indicated, in my earlier judgment, Berman J ordered that the father have sole parental responsibility for the children subject to the proviso that he advise the mother, in writing, of any major long-term issues to do with the children and attempt to engage with her to reach a common position in respect of such an issue.
In this context, in early July of 2022, Mr Merritt wrote to Ms Bruckner proposing that X and Y be enrolled at AF School, which is close to his current home, as soon as possible. Ms Bruckner responded promptly indicating her opposition and noted that Mr Merritt had purchased the Town AJ property in 2021. She somewhat critically characterised this as a lifestyle choice on the father’s part rather than one influenced by any proper consideration of the children’s best interests.
It is her position that Mr Merritt should have disclosed this fact to Berman J as it was a factor that had the potential to be influential so far as the implementation of the ultimate final outcome was concerned, namely issues to do with conferral of parental responsibility in the context of schooling decisions and also the extent to which the children lived/spent time with each of their parents..
In these circumstances, it is Ms Bruckner’s position that she has been and remains willing to engage in a process of mediation, with Mr Merritt, to resolve the current difficulties arising between them but as he indicated to Ms AG, the father is not. Again, from Ms Bruckner’s perspective, this is further indications that the original decision of the Family Court is flawed, given the manner in which Mr Merritt elected to move his residence and by necessary implication conceivably the children’s place of schooling unilaterally.
To reiterate, the 9 March 2022 final orders of Berman J envisaged the children living predominately with their father but spending time, with their mother, during school terms from the conclusion of Friday until 9:00am the following Wednesday, on a fortnightly basis; and during school holidays, on a week about basis.
It is Ms Bruckner’s position that this regime must have been posited on the basis of the parties’ residential arrangements as at trial and nothing of sufficient moment has occurred, since these orders were made, to justify her being excluded from the children’s lives, to the degree which is currently occurring.
However, from Mr Merritt’s perspective, the evidence indicates that as soon as the orders of March 2022 were made, Ms Bruckner began to attempt to subvert them with her efforts becoming more extreme in the context of his proposal to enrol them at AF School, which was an outcome theoretically open to him given he had been conferred with sole parental responsibility.
Following the final orders issued by Berman J, in March 2022, Mr Merritt initiating fresh proceedings on 19 October 2022 seeking the following orders, on a final basis:
·The children live with him and he have sole parental responsibility for them.
·By necessary implication, he be released from the requirement to advise the mother of any major long-term issue to do with them or consult with Ms Bruckner about it.
·The children spend time with their mother, as deemed suitable by the court.
On an interim basis, he sought a recovery order in respect of each child and alleged that she had withheld the children from him, in contravention with Berman J’s orders, for protracted periods of time, from 12 May 2022 onwards, culminating with Ms Bruckner withholding the children from 17 August 2022 to the date of his application.
The background to this first withholding seems to be an incident, in the school yard, which occurred on 19 May 2022, when Y fell from climbing equipment and injured himself. It seems to remain the mother’s position that the father did not respond appropriately to this injury, demonstrating once again his flawed attitude to his responsibilities of being a parent. I have been provided with limited evidence in respect of the matter, certainly in terms of any detailed medical analysis.
Thereafter Ms Bruckner’s actions, in withholding the children, seem to have become more pronounced in the period following the initiation of the change of school issue by Mr Merritt. Thereafter, Ms Bruckner elected to home school both X and Y. School records obtained by the ICL indicate a consistent lack of attendance, with the reason provided being that the children were unwell.[4]
[4] See affidavit of Ms AL filed 13 February 2023.
Ultimately, on 27 October 2022, notwithstanding the mother’s objections, Berman J ordered that X and Y be delivered to the father on or before 4.00pm on 28 October 2022 otherwise a recovery order would issue for both children. Berman J provided reasons in support of this decision.[5]
[5] See Merritt & Bruckner (No 2) [2022] FedCFamC1F 893.
From these reasons, it is evident that Berman J accepted that following the orders of March 2022, Ms Bruckner had apparently elected to home school the children and had engaged another medical practitioner to treat them, without reference to the father, who had been conferred with sole parental responsibility for the children concerned.
The doctor concerned was Dr DD. He apparently issued medical certificates, in respect of the children, indicating his opinion that they each had been medically unwell on a number of occasions. The effect of his correspondence (he has not filed an affidavit in the current proceedings) is that it is his opinion that that the children are emotionally traumatised by the regime inaugurated in March of 2022.
Dr DD also wrote to Mr Merritt and Mr M, who was and remains the principal of the B School. Mr M had given evidence in the trial before Berman J and had been critical of Ms Bruckner’s interaction with both him and other staff members at the school. Mr M’s evidence seems to have been influential in Berman J’s decision.
In an affidavit filed by Ms Bruckner on 25 October 2022, in opposition to the father’s application for a recovery order, she provided copies of this correspondence to the court. Dr DD also reported to Mr M that Y and X were not willing to attend B School because of their fears that Mr Merritt would collect them from the school. In these circumstances, in conjunction with their mother, the children had elected to be home schooled.
In these circumstances, in support of his decision to issue the recovery order, Berman J said as follows:
The issue of the children not regularly attending school was a matter of concern to the father and to the ICL. It was at least one of the considerations as to why the final parenting Orders were made, that provided for the father to have sole parental responsibility and also for the transition of the children from the primary care of the mother, to the primary care of the father.
The concern raised by [Dr DD], of his observations of the children’s extreme reluctance to now engage with the father and even their fear of returning to school lest the father attend and attempt to retake the children back into his care, is at stark odds with the evidence. I found that the evidence of the Family Consultant, in terms of the observations of the beneficial relationship between the children and the father, was such that the children presented without any concern after having spent time with him.
The mother’s position that the children were fearful of the father, was not supported by the evidence generally or the specific evidence of the Family Consultant.
…….
It is of concern that the mother would have resorted to taking the children to [Dr DD]in circumstances where part of that issue related to the children not attending school and the mother not complying with the final parenting Orders. They are matters to which sole parental responsibility would ordinarily have been a significant matter. I am not satisfied that the medical certificates provided by [Dr DD] provide the explanation as to why the children have not been at school. What is behind that, is not the medical health of the children but rather the obvious understanding by the mother that were the children to attend their school, there would be then no impediment to the father collecting them pursuant to the final parenting Order. The mother also had no confidence that the teachers and staff at the children’s school would do anything other than fall in with the father’s ability to have the final parenting Orders complied with.
It is also a relevant factor that, notwithstanding that the children have been in the sole care of the mother since 17 August 2022, no application was made to attempt to regularise the arrangement or to put in place a different arrangement. It is only the father’s Initiating Application that brings the mother to the Court’s attention.
What has now happened, is that there has been unilateral action taken by the mother to cause a change in the circumstances of the children without any regard to the effect that it would have on them. In circumstances where I made detailed findings as to the nature of the relationship between the children and their father, it is alarming that the mother should now have placed the children in the circumstance where they no longer have a relationship with him.[6]
[6] See Merritt & Bruckner (No 2) [2022] FedCFamC1F 893 at [36]-[38], [43], [45], [49].
At this stage, although Mr Merritt had indicated a desire to change the children’s place of schooling, it did not appear to be the case that he had formally done so. Regrettably the issue continued to, at the very least, smoulder. In addition, it was at this stage, on the basis of his long involvement with the matter Berman J determined that he would disqualify himself from further involvement in the matter.
Accordingly, at this stage, before his apparently self-initiated decision to recuse himself, Berman J identified the central issues in the matter which, regrettably, continue to play out in the case. In my view, these issues can be summarised as follows:
·The expert evidence available to him indicated that X and Y had a close relationship with their father, which was beneficial to them;
·Such evidence was contrary to that mustered by the mother, which originated largely with her and was not supported by independent objective evidence. In this context, he was critical of the objectivity of Dr DD’s evidence, such as it was;
·The mother had unilaterally attempted to disrupt the children’s relationship with their father through self-help, which included withdrawing them both from their school and from their father;
·In this context, it was noteworthy that the mother had not initiated any formal proceedings following the orders of March 2022 but had been reactive to the father’s application to a recovery order; and
·Necessarily, it was also that case that she had done nothing previously to appeal the orders of March 2022, with which she disagreed or to bring to the notice of the court any concerns she had in respect of the father’s change of residence through an application to it.
On 14 November 2022, Ms Bruckner filed an application in a proceeding, sealed by the court on 25 November 2022, seeking the following: a stay of the recovery order; the preparation of a further family assessment report, to be prepared by a family consultant other than Ms H; and for the court to issue an invitation to the Department for Child Protection[7] to intervene in the proceedings, pursuant to the provisions of section 91B of the Family Law Act 1975 (Cth).[8]
[7] Hereinafter referred to as DCP.
[8] Hereinafter referred to as “the Act”.
In conjunction with these orders, she sought orders be made that would facilitate X and Y living with her and the father’s time with the children being suspended. In support of this application, she filed an affidavit in which she deposes as to her concerns regarding the mental health of the children, whom she reported were threating to self-harm, particularly if directed to return to live with their father.
Annexed to this affidavit was a letter Dr DD had written to Berman J outlining his personal concerns regarding the children’s presentation to him; and a photograph taken by Ms Bruckner of a bruise on Y’s forearm, allegedly inflicted by the father in early February of 2022.
In addition, Ms Bruckner outlined a number of notifications, which she had made to DCP regarding her concerns that Mr Merritt had subjected both children to physical and emotional abuse. Essentially it was (and remains) Ms Bruckner’s position that Berman J’s orders were based on erroneous evidence presented to him and, as such, needed to be urgently reviewed. In this context, it should be noted Ms Bruckner has not sought to appeal the orders, which she attributes to a lack of financial means, on her part, to do so.
In accordance with Berman J’s direction, the case was listed before Mead J’s in Division 1 of the court. On 23 November 2022, Mead J made a Chamber’s Order re-appointing Ms Shorter as ICL and inviting DCP to intervene in the proceedings. Thereafter, the case was re-listed on 19 December 2022, at which stage it became apparent that the recovery order, made by Berman J on 27 October, had not been executed.
In this context, an officer of the Australian Federal Police[9] attended at court on 19 December 2022 to advise Mead J of what had occurred. The officer concerned indicated that the AFP had not been able to execute the recovery order in question because on each occasion the police had attended the mother’s home neither she nor the children had apparently been home.
[9] Hereinafter referred to as the AFP.
In these circumstances, Mead J ordered that the mother and children were to be present at 9.00am the following day. This order was made in the mother’s presence as she had, by necessary implication, attended at court by telephone in order to pursue her application to have the orders in question stayed.
As to what happened next, Ms Bruckner relies on a statutory declaration of Mr GG, who is a member of the AFP. Mr GG had been directed to execute the recovery order in respect of X and Y and as a consequence attended at Ms Bruckner’s on 20 December 2022. The contents of his declaration can be summarised as follows:
·On arrival, he was met by Ms Bruckner and her two sisters and admitted to Ms Bruckner’s home. The children were not sighted;
·Ms Bruckner then informed the police that she had discovered that the children had locked themselves in the toilet, where they were crying out that they would not leave as they feared being snatched and taken to their father;
·Ms Bruckner indicated that Y was holding baseball bat, whilst X was holding a kitchen knife;
·Whilst remaining out of sight of the police officers, the children’s aunt indicated that she had removed the weapons from the children and their mother had indicated that what they were doing was wrong;
·The children were persuaded to come into the living area of the home, where the police officers attempted to explain what was to happen vis-à-vis the recovery order. Upon hearing which, the children ran back to the bathroom and again locked the door. The children were described as having been crying;
·The children were again coaxed to return to the living area, where they were questioned by the AFP. In Mr GG’s assessment, both children were distressed at the prospect of being removed from their mother and taken to their father;
·X made the following complaints about her father:
·He dragged her around by the wrists;
·He shouted at both children for no reason;
·He and his partner drank to excess and the children’s care was neglected;
·The father’s partner called Y stupid;
·The children are not properly fed at their father’s home;
·X had been injured at school and left there by her father for approximately two hours.
·When questioned Y provided similar answers to those of his sister but in addition indicated that:
·He had broken his arm at school and his father had not taken him to hospital;
·His father was an alcoholic and let them go to bed alone at night.
In these circumstances, Mr GG and his colleagues elected not execute the recovery order but reported the matter to the authorities, including DCP. In these circumstances, when the case returned to court the following morning (21 December 2022) Mead J made the following orders, in the presence of both the parents, counsel for the ICL and a representative of DCP:
(1)By no later than 11:20am this day the mother produce the children [X] and [Y] to the Court Children’s Services (CCS) at the Federal Circuit and Family Court of Australia Adelaide Registry and depart from the Registry forthwith pending the resumption of the hearing at 2:15pm today.
(2)The father be restrained and an injunction is hereby granted restraining him from attending within 200 meters of the vicinity of the said Court prior to 12noon this day.
(3)Pursuant to section 62G of the Family Law Act 1975 (Cth), a Court Child Expert (CCE) interview each of the children [X] and [Y] this day as a matter of urgency in relation to the execution of the extant recovery order issued herein on 28 October 2022.
(4)The CCE be available to give oral evidence to the Court at 2:15pm this day as to the children’s views and perceptions regarding parenting issues and their general demeanour NOTING the contents of the sworn statement of [Mr GG] provided to the Court this day.
(5)The Independent Children’s Lawyer and an authorised officer from the Department for Child Protection be at liberty to speak with the CCE in the discretion of the expert prior to the resumption of this hearing[10]
[10] Orders dated 21 December 2021.
Ms Bruckner complied with the order requiring her to bring the children to the court. The Court Child Expert directed to interview the children was Ms HH. I have not been provided with a full transcript of her evidence but Ms Bruckner remains aggrieved that she was not given the opportunity to cross-examine Ms HH. However, in her reasons for judgment, provided on 21 December 2022,[11] Mead J summarised the effect of her evidence regarding X and Y’s mental state that each was understandably anxious but not distressed.
[11] Merritt & Bruckner (No 4) [2022] FedCFamC1F 1067.
In these circumstances, Mead J directed in order to give effect to the existing final orders that the father collect X and Y from the court and depart promptly with them from the building. During this period required for this direction to be effected, it was ordered that the mother be escorted by court security to a secure room, where she was to remain until the children had left the building.
In her reasons for judgment, in support of her orders, Mead J indicated that she was not satisfied that Ms Bruckner had provided any proper reasons to justify her apparent non-compliance with the final orders of March 2022. She was also concerned by the children’s irregular attendance at school, during the preceding year, particularly given this was one of the major factors leading to Berman J placing the children in the father’s predominant care, namely the apparent inability of the mother to support the children attending at school.
At this stage, it is apparent that the mother was vehemently opposed to the prospect of the children leaving B School, notwithstanding the fact that the children’s attendance at the school, during much of 2022, had been irregular. As I understand her position, the mother justifies the children’s non-attendance at school by reason of the children’s views and concerns about going to school; their recurrent illnesses; and the impact of the pandemic emergency.
The orders of Berman J, whilst conferring sole parental responsibility for the children on Mr Merritt, still required him to consult with Ms Bruckner about major long-term parental issues. A change of school would ordinarily meet the descriptor of major long-term issue.
In these circumstances, Mead J determined that, in the interim, X and Y would continue at their existing school but that Ms Bruckner herself would be restrained from attending there. In addition, Mead J determined that the children would not engage with their mother for an extended period of time over the Christmas period.
It is common ground that the process by which the children came into their father’s care, on 21 December 2022, was not without its difficulties. In her recent affidavit,[12] Ms Bruckner has outlined various complaints about what happened to her and the children on 21 December 2022. These can be summarised as follows:
·As previously indicated, Ms Bruckner was not allowed to cross-examine Ms HH;
·The mother was held in a locked room for an extended period of time, whilst the handover took place, which was demeaning to her;
·X became distressed when she learnt that she was to leave Court Children’s Services[13] with her father to such an extent that she locked herself in the toilet, where she spent an hour screaming, crying and urinating on the floor;
·In an attempt to get her to leave the toilet, Court Officers and a worker from DCP lied to X that she would be able to see her mother shortly and the court would make an order that she could communicate with her mother by telephone later that evening;
·In summary, Ms Bruckner is highly critical of how the children were placed in the father’s care which she characterises as being disingenuous and emotionally abusive of X and Y.
[12] See mother’s affidavit filed 14 February 2023.
[13] Hereinafter referred to as “CCS”.
Essentially, Ms Bruckner alleges that members of CCS colluded with officers of DCP to act in an extremely manipulative manner towards the children. In these circumstances, she asserts that the court can have no confidence in the probity of any evidence provided by anyone associated with either CCS or DCP because inevitably such evidence will either be tainted by a desire to provide an exculpatory or self-serving account of what occurred on 21 December 2022 and since, or be lacking in objectivity for similar reasons. Essentially, Ms Bruckner implies that CCS and DCP are motivated to cover up their inexcusable conduct on the date in question and are therefore either consciously or unconsciously prejudiced against her.
In his affidavit material filed,[14] Mr Merritt is critical of the mother’s conduct and that of her family on the day in question. He alleges he and his partner were subjected to verbal abuse and individuals associated with Ms Bruckner impeded him entering the court carpark in order to collect the children, as had been directed by Mead J. In these circumstances, it is his position that it was the mother and her family who exposed the children to conflict and abuse, not DCP or CCS workers.
[14] See father’s affidavit filed 10 February 2023.
The mother is critical that one of the DCP workers indicated to X that she would be able to telephone her mother later that evening if she [X] agreed to leave the toilet, where she had locked herself in. Ms Bruckner characterises this as an egregious example of emotional manipulation.
The phone call in question was subsequently ordered by Mead J. When it occurred the father is critical of the mother’s conduct during this phone call, alleging that she questioned X about the identity of the workers who had secured removal from the court and told X needs not listen to anyone. Essentially, Mr Merritt alleges that Ms Bruckner stoked the child’s anxieties rather than alleviated them.
Justice Mead had directed that the case return to court on 15 February 2023 and, in the meantime, the ICL prepare a further report, from Ms H. For a variety of reasons, including the subsequent indisposition of Mead J, this did not eventuate without incident.
As previously indicated, Mead J had invited DCP to become involved in the proceedings. This invitation had been issued without demur by Ms Bruckner and it would appear to be the effect of her evidence that she herself had made several notifications to the Department concerning the welfare of the children, whilst in their father’s care. In addition, officers from DCP had been involved in the events of 21 December 2022.
In these circumstances, in response to this invitation, on 1 February 2023, Ms AD and Ms AE wrote to Mead J. Ms AD is described as Practice Leader and Ms AE as a Senior Social Worker at DCP. Their covering letter, amongst other things, contained the following statements:
The department has completed an investigation into the care afforded to [X] and [Y] and has assessed that the children’s care arrangement with [Mr Merritt] is safe.
The department is concerned that as of 31 January 2023 the children re-entered the care of [Ms Bruckner] and [Ms Bruckner] refused to cooperate with the department to have the children returned to [Mr Merritt]. To assist the court a detailed summary of the departmental investigation is attached.[15]
[15] See DCP report dated 1 February 2023.
The letter and the associated investigation was provided to the ICL. In response to this material, the ICL requested that the case be listed urgently before the court. As Berman J had recused himself and Mead J was unwell, the case was listed before Kari J on 7 February 2023.
This precipitated an email response from Ms Bruckner in which she requested Kari J recuse herself from any involvement with the case as she had been Mr Merritt’s barrister in past proceedings between the parties and thus it would not be procedurally fair for her to be involved in the case.
Given what she would characterise as her unequivocal objection to Kari J having anything to do with her matter, Ms Bruckner is highly critical of what occurred at court on 7 February 2023. The relevant order which issued on this day, together with notations reads as follows:
UPON NOTING:
A. Justice Kari has a conflict and is unable to hear the matter.
B.The Department for Child Protection (“DCP”) provided a response to the court pursuant to the s91B order made on 23 November 2022. Such report is dated 1 February 2023.
C.A copy of the DCP report dated 1 February 2023 was provided to the Independent Children's Lawyer (“ICL”) and the court shall provide a copy of the same to each the mother and the father by email at the conclusion of today’s hearing.
D.The ICL has advised the court today that she has made appointments for the parties to attend upon [Ms H] for the purposes of the Family Assessment ordered on 21 December 2022, with the first of such appointments scheduled for 8 March 2023.
E.The ICL has indicated to the court that the father has responded to the ICL’s request to contribute one half of the costs of [Ms H’s] report but as yet the mother has not yet done so NOTING that the mother indicates that she has not received any communications from the ICL in that regard.
F.That the court has been advised by the ICL and the parties today as to the following circumstances in relation to the children:
a.Both children attended school on Friday, 3 February 2023.
b. The child [Y] was returned to the father’s primary care on 3 February 2023.
c. The child [X] has remained in the mother’s primary care.
d.Neither of the children have attended school since 3 February 2023.
e.The ICL is concerned that the children are not attending school and they are not spending time with each other and/or communicating with each other.
G.The DCP have not yet determined whether they intend to take up the court’s request to intervene in the proceedings. Either way:
a.The DCP intend to continue to actively engage with the family during the period of the adjournment.
b.The DCP have requested that the mother personally and otherwise facilitate the child [X] engaging with the DCP.
c.That the father has made appointments for both children to see a psychologist on 10 February 2023 and the DCP are concerned to
THE COURT ORDERS BY CONSENT:
1.That all extant interlocutory applications do stand dismissed in particular the interim orders sought in the father’s Initiating Application filed on 19 October 2022 and the interim orders sought by the mother in the Application in a Proceeding filed on 25 November 2022.
2.That no later than 4.00pm on 10 February 2023 the father do file and serve an Application in a Proceeding setting out the interim orders he now seeks together with any Affidavit in support.
3.That no later than 4.00pm on 14 February 2023 the mother do file and serve a Response to the father’s Application in a Proceeding to be filed pursuant to these orders setting out the interim orders she now seeks together with any Affidavit in support.
4.That no later than 4.00pm on 14 February 2023 the mother do file and serve a Response to the father’s Initiating Application filed on 19 October 2022 setting out the final orders she now seeks.
5.That the ICL file and serve any Affidavit upon which they rely no later than 4.00pm on 15 February 2023.
THE COURT FURTHER ORDERS:
6.Pursuant to s 69ZW of the Family Law Act 1975 South Australia Police shall provide the Court with the following documents or information from the date of any previous production up to and including the present day:
a.Copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties [MR MERRITT] (born 1970) and [MS BRUCKNER] (born 1974) or the infant children [X] (born 2012) and [Y] (born 2014); and
b.The outcome or findings of any such investigations including antecedent reports for each of the parties.
NOTING that upon production of the material from South Australian Police and subject to any requests by them, the parties and/or their legal representatives consent to a Chambers Order issuing for the parties to inspect only and the legal representatives to inspect and copy the material.
7.Pending further Order, the parties are restrained and injunction is granted restraining them from issuing a subpoena to South Australian Police.
8.Pursuant to s 69ZW of the Family Law Act 1975 the Department for Child Protection provide the Court with the following documents or information from the date of any previous production up to and including the present day:
a.Copies of any notifications regarding abuse allegations arising or relating to the children [X] (born 2012) and [Y] (born 2014);
b. Any assessments or investigations into such abuse allegations;
c.The outcome or findings of any such assessments and investigations; and
d.Copies of any reports received by the Department for Child Protection in the course of investigating any such notifications.
NOTING that upon production of the material from the Department for Child Protection and subject to any requests by the Department, the parties and/or their legal representatives consent to a Chambers Order issuing for the parties to inspect only and the legal representatives to inspect and copy the material.
9.Pending further Order, the parties are restrained and injunction is granted restraining them from issuing a subpoena to the Department for Child Protection.
10.That the DCP be at liberty to inspect and copy the court file in these proceedings.
11.That paragraph 4 of the orders made by Justice Mead on 23 November 2022 be discharged.
12.That paragraph 10 of the orders made by Justice Mead on 21 December 2022 be discharged.
13.That both parties be restrained and an injunction is granted restraining both parties from communicating directly with the judge’s chambers.
14.That the Mention hearing before the Honourable Justice Mead listed on 15 February 2022 be vacated.
15.That the proceedings be listed before a judge other than Justice Berman or Justice Kari as a matter of urgency with a request that if possible the matter be heard on a face-to-face basis.
Ms Bruckner has indicated that she did not consent to these orders. As I understand her position, from her perspective, the fact that Kari J made any orders, in the face of her objection, is evidence of still more irregularities and biases in the system, as it pertains to her personally.
What is evident from these orders is that Kari J did not determine any issues of substantive importance between the parties. A reading of the relevant transcript further indicates that she advised each party of her previous involvement with Mr Merritt, as his counsel, and informed them each that she intended to make order for the procedural management of the matter to a hearing, which would not involve her exercising any discretion.
In this context, the following exchange took place between Her Honour and the parties:
HER HONOUR: ‑ ‑ ‑ 1 February. All right. I am going to make an order, or a notation, that I will release that document by email to each you and [Mr Merritt] at the conclusion of today’s hearing so that you have that document. Otherwise, can I understand this, and just give me one moment. [Mr Merritt], you filed – just stand up for me, please. You filed a fresh initiating application in the matter in October of last year. That application in part had a focus of the recovery order which his Honour then dealt with. Otherwise I think the balance of the orders have been dealt with in terms of the reappointment of the independent children’s lawyer and some other issues. But there are other orders in that document which have never been dealt with that you seek.
I am also conscious that the mother filed an application in a proceeding in November which also hasn’t formally been dealt with. In terms of how I procedurally manage the matter, what I am inclined to do – and there are two options as to how I deal with it. But I think I will do because those applications are now old, both yours and the mother’s from November – and I am addressing this to you as well, [Ms Bruckner]. Because those documents are old and there has been a considerable change of – and series of events since then, what I am inclined to do, [Mr Merritt], is require you to file – and I will work out the timeframe in a moment, but a fresh application in a proceeding setting out the interim orders you’re asking the court to make, together with an affidavit in support, and you can update the court as to all that has occurred in the intervening period.
I will then require the mother to file a response to that application in a proceeding, together with her affidavit in support, where she can put the material that she wants before the court. The plan then will be to dismiss all previous outstanding interim applications and there will just be the fresh applications that are filed pursuant to the orders I propose to make today. You’re nodding your head. You seem to follow that.
[MR MERRITT]: I – sorry, your Honour. Yes.
HER HONOUR: Are you content with that procedural course of action?
[MR MERRITT]: Yes, your Honour
HER HONOUR: All right. Thank you, [Mr Merritt]. Have a seat. [Ms Bruckner], you’ve just heard my explanation as to the procedural orders I plan to make. Are you content with that course of action, to bring the matter up to date so that each, you and [Mr Merritt], have the opportunity to put the documents that you want before the court so that a judge can hear, whatever the current orders are, an argument in relation to the current orders that you are each asking the court to make.
[MS BRUCKNER]: That makes sense, your Honour, to do that, and I also would just like to put forward that I seek to issue a subpoena, your Honour, and I was hoping that we could do that in these procedural orders as well.[16]
[16] See transcript of hearing dated 7 February 2023 at pages 12-13.
Ostensibly, at least, it would appear to be the case that Ms Bruckner did not disagree with the procedural orders proposed by Kari J. It is now her position that Kari J dismissed her application without her consent and, in effect, as I understand her allegation, colluded with Mr Merritt, in some way, to allow him to open up further channels through which he could subject her to more abuse unfairly, including subjecting her to an unnecessary psychiatric examination.[17]
[17] See mother’s affidavit filed 14 February 2023 at [72].
As a consequence of the unavailability of any other Adelaide based judges of Division 1 of the court, on 7 February 2023 Alstergren CJ transferred the matter to Division 2 of the court and it came before me, for the first time on 23 February 2023.
By this stage, in accordance with the directions of Kari J, Mr Merritt had filed a fresh application and supporting affidavit, which he did on 10 February 2023; whilst Ms Bruckner filed a response and supporting affidavit on 14 February 2023.
At this stage, Mr Merritt sought orders which can be summarised as follows:
·X be delivered up to him with the support of DCP and the two children live with him;
·The orders of March 2022 continue other than those relating to the mother spending time with the children, which provisions were to be suspended;
·The mother and her family be restrained from attending at the children’s school or the father’s place of work;
·The mother undergo a psychiatric examination;
·Injunctions relating to social media postings, removal of the children and discussing the proceedings.
Ms Bruckner sought orders which can be summarised in the following terms:
·X and Y live with her and she have sole parental responsibility for them;
·The father spend time with them for six nights per fortnight;
·The children attend B School;
·Handovers occur at school or Suburb O Police Station;
·The father undergo a psychiatric examination;
·The father and his partner be restrained from denigrating her to the children.
In these circumstances, I am unable to understand the basis on which Ms Bruckner asserts she was subject to some form of procedural unfairness, given that she was able to file a further responsive application and provide contemporaneous evidence.
At this stage, the various evidentiary controversies between the parties, of which there were many, in addition to the historical ones regarding their parental dynamic, centred on how X had come into the mother’s care and what had happened at court on 21 December 2022.
In his affidavit, the father deposed that although he believed in the need for the children to have a meaningful relationship with their mother, he also considered it incumbent on him to ensure they were protected from the conflict which surrounds their mother, particularly so far as her continual and consistent efforts to alienate the children from him and limit his time with them.[18] In this context, he was deeply suspicious of the circumstances which had led to X coming into her mother’s care.
[18] See father’s affidavit filed 10 February 2023 at [81] – [82].
The mother has a diametrically opposing view as to why the children came into her care in late January of 2023, with X remaining. Essentially it is her case that the children ran away from school to her home because of the strong opposition to remaining in their father’s care, which had resulted in X expressing a desire to self-harm.
Ms Bruckner characterises both X and Y as mature children, whose wishes needed to be given significant weight by the court. It is her position that each child has strongly indicated an obvious preference to live with her by what occurred between 31 January 2023 and 3 February 2023.
DCP were involved in this series of events, visiting the mother’s home on 31 January 2023; the father’s home on 23 December 2022, 5 January 2023 and 19 January 2023, on each occasion of which the children were interviewed by departmental workers. These events are the subject of the 1 February 2023 DCP report.
It is also Ms Bruckner’s evidence that DCP officers were present at B School on 3 February 2022, when X ran away from school to her home. She is highly critical of the conduct of these officers and Mr M, who was also present in the school office with X on this occasion. Ms Bruckner deposes as follows:
[X] only ran from the school and hurt her foot on the 3 February 2023 because she was being chased by [Ms AE] from DCP and others. [Ms AE]'s actions and the children being unnecessarily pulled out of class are the reason [X] got upset and ran from school and nearly ran into a car. [X] said she was happily in class prior to her being pulled out of class and sent to the office. The mother contacted the principal and he confirmed that he had no control over DCP pulling the kids out of class and doing what they did.[19]
[19] See mother’s affidavit filed 14 February 2023 at [42].
Y remained at school on 3 February 2023 and was collected by his father after school concluded. Although she was not personally present on this occasion, the mother deposes that Y was deeply unhappy and the father lied to him that he would see X soon. In addition, it would appear to be the position that she was not present at the school earlier in the day. It is necessary implication of her evidence that she did not consider it appropriate to return X to school later that day.
This was the background to the case coming before me on 23 February 2023. In this context, the notation designated F in Kari J’s order would seem to be correct. The situation confronting me was that the two children, who had hitherto lived together, were in separate households and were not attending school.
This situation had arisen following a lengthy trial in which Berman J had considered that the children’s best interest would be served by them living with their father. One of the major considerations leading to this outcome was his Honour’s finding that this outcome would be more conducive to them attending school regularly.
In addition, unequivocal documentary evidence, provided by the ICL, indicated that the children’s attendance at school during the latter portion of 2022 had been problematic. This had coincided with the mother apparently electing to home school the children, which was not congruent with the orders of Berman J, which had not been subject to any form of challenge.
For reasons already provided to the parties, on 24 February 2023, I determined that X and Y should live with their father, at his residence in Town AJ and Mr Merritt should be authorised to enrol them at a school to be selected by him in the vicinity of his home. It was at this stage, I ordered that a Specific Issues Report be prepared.
The case has returned to court in the context of that report and, as indicated above, Ms Bruckner seeks a return to the previous status quo regarding parenting arrangements for the children, particularly that they should spend significant periods in the care of each parent and return to their previous school at B School. In addition she seeks the discharge of Ms Shorter as Independent Children’s Lawyer.
Although these issues have been subject to a previous adjudication and orders made, which have not been subject to appeal, these issues arise at an interim hearing stage, which does not provide a forum for all relevant evidence to be subject to extensive scrutiny through cross-examination. In this context, I note, however, that Ms AG has been cross-examined by Ms Bruckner at length.
At this stage, in my view, it is important that I point out to the parties what is the nature of an interim hearing and delineate, as best I can the legal principles to be applied, but before I do that, I will also summarise the evidentiary controversies in the case, which are as follows:
·Have the children been subject to abuse? The father asserts that the mother’s actions amount to abuse, as defined by the relevant legal considerations; the mother asserts that the father has physically assaulted each child, which clearly, if established, is also abuse as defined by the legislative framework;
·What are the operative wishes of the children as to where they should live? More specifically, given the children have unequivocally stated their preference to live with their mother, are these the children’s genuine wishes?
·In this context, what has led to the children formulating their particular views and, as a corollary of this, is it likely to be in their best interests for their ostensible wishes to be accommodated without demur or is the opposite more likely to be the case?
·Most recently, the children have expressed views to a number of individuals, who include Agent Mr GG of the AFP, Dr DD, DCP workers on 31 January 2023 and presumably 3 February 2023 and, most recently, to Ms AG;
·Ms Bruckner accepts that Mr GG and Dr DD have accurately conveyed the children’s feelings. In addition, it would appear to be the case that she accepts that both Ms AG and Ms AE have conveyed the words used by the children but have either consciously or unconsciously misinterpreted the children’s comments;
·In this context, Ms Bruckner asserts that Ms AG must be regarded as having a biased appreciation of the case, given she was present in CCS, on 21 December 2022, during the hullabaloo surrounding X and Y coming into Mr Merritt’s care. Ms AG concedes that she was aware of the commotion generated and had discussed it, to some extent with her colleagues in the section, in the period following, prior to her being engaged to prepare her current report. Given this concession, it is Ms Bruckner’s submission that the court must approach Ms AG’s conclusion with an extreme level of caution, because of the risk that her (Ms AG’s) adverse view of her (Ms Bruckner) was formed prior to the report writing process being engaged;
·Further, Ms Bruckner asserts that DCP have a similar motivation to downplay the views of the children, as expressed to them, because of the part which its officers played in the removal of the children from her care, which included her detention and which she characterises as having been abusive of the children;
·From Ms Bruckner’s perspective, this is a further reason why the court should dismiss Ms AG’s conclusions as she interviewed the children at the same location, at which she alleges the children had been traumatised. In these circumstances, she asserts that the children are hardly likely to be able to express themselves normally given the setting in which the interviews took place;
·At this juncture, the court has not received sworn evidence from DCP and neither of the report writers of the report of 1 February 2023 has been subject to cross-examination. If this process is to occur, it most likely be at the final hearing stage; and
·In addition, no evidence has been provided by anyone other than Ms Bruckner as to what happened at B School on 3 February 2023. Neither Mr M nor Ms AE have presented their account of what occurred. In this context, it should be pointed out that Ms Bruckner herself was not present.
Mr Merritt has now enrolled the children at AF School as a consequence of the orders made by me on 24 February 2023. Ms Bruckner characterises it as a poor school, certainly inferior to B School. It is also her position that neither child like the school and the children’s change to it has disrupted their previous routine.
It is further her position that there is no cogent evidence that she suffers from any mental illness. It is also her submission that the evidence indicates that it is the father, who is disinclined to follow court orders not her. In this context, she asserts Mr Merritt is currently breaching a previous order which prevented the children travelling to school by bus.
Essentially, it is her position that since late December of 2022, the court process has gotten out of control, which has led to her being falsely maligned, when all she has attempted to do is to respond to the needs and wishes of her children, with whom she shares an extremely close bond. In her own words, she is a good mum.
THE NATURE OF AN INTERIM HEARING
By their nature, interim hearings invariably arise against a background of serious family crisis, urgency and controversy. In my view, every aspect of this case is characterised by acrimony, disagreement and certainly from Ms Bruckner’s perspective a need for urgent hearing. In addition, prior to X returning to his care, Mr Merritt also sought an expedited hearing, as did the lawyer charged with safeguarding X and Y’s interests.
Given the urgency arising, such cases have to be listed expeditiously. In this particular matter, notwithstanding the difficulties arising relating to the unavailability of a judges in Division 1 to hear the case, the need for urgent hearing has been accommodated, in my view, as best as it can possibly be done in the circumstances prevailing.
However due to the pressure of its business, the court is rarely afforded the opportunity to conduct a lengthy hearing, involving cross-examination of parties, which would enable factual issues to be resolved on the basis of findings of credit, at this interim stage. This is the case in present matter. As pointed out above, there has been limited evidence from DCP and other actors involved in the various controversies arising between the parties, the evidence of whom is both diametrically opposed and currently has not been subject to scrutiny through cross-examination.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[20]
[20] See Goode & Goode (2006) FLC 92-286 at 80,901 [68].
As a consequence, any orders made by the court, at this stage, are provisional in nature and so capable of revision later, following a more detailed inquiry, involving a more thorough canvassing of evidence, which is also later likely to be more extensive, particularly in terms of expert evidence.
The Full Court, in the case of Marvel & Marvel (No 2)[21] summarised the difficulties arising for the court at the interim stage and said as follows in respect of the nature of the approach to be taken and the rationale for such an approach:
Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.
[21] See Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120].
However, notwithstanding the inevitable shortcomings inherent in any interim hearing regarding children, the court must still apply the prerequisite principles, relating to ascertaining the outcome best suited to serving their interests, contained in Part VII of the Family Law Act 1975.
In addition and significantly in the present matter, limitations in the evidence do not abrogate the court’s responsibility to assess the available evidence, limited though it may be, in the context of an interim hearing, to determine the level of risk arising for the children of being exposed to some form of abuse whilst in the care of one or other of their parents.
Fundamentally, this is a case about risk and its assessment. Each party asserts the other represents a risk to the emotional and/or physical well-being of X and Y. In addition, the risk concerned is multi-faceted and has both short-term and long-term implications, relating to other considerations, arising from the Act, which are applicable to how the court determines how a child’s interests will best be served, namely the entitlement of a child to have a meaningful level of relationship with those who are developmentally, emotionally, familiarly and socially significant to him or her, most usually the child’s parents.
In this case, the father asserts that the mother is intent on acting in a way which will result in him having no effective relationship with the children because of either her animus for him, or some ill-defined psychological impairment on her part. He asserts that it cannot be in the children’s best interest that they have no relationship with him, given the fact that he has been significantly involved in their care up to this time and he loves them dearly.
Underpinning this assertion is a more nuanced issue. If the parties’ co-parenting relationship, for whatever reason, is so fractured and compromised, that it will not sustain the children having a relationship with both of their parents, without risk of them suffering possibly irreversible and serious emotional damage, as a collateral of the struggle between their parents, why should the children be compelled to forego their relationship with him, when it is the mother who will not accept the children’s entitlement to have a relationship with him rather than vice versa.
This is not an issue which has to be determined at this juncture. But the thrust of Ms AG’s report is that it will be beneficial for X and Y to have, in effect, a six month moratorium, in their father’s care, in order to consolidate their relationship with him. For what I believe are axiomatic reasons, this is a difficult issue to determine, if it can be, in the context of a truncated interim hearing. Whichever way the issue is determined it has the potential to adverse consequences for the two children concerned.
The mother’s position is that she is capable of ensuring the children have a meaningful level of relationship with their father but other considerations relating to protecting them from abuse, the father’s allegedly compromised parenting and the facilitation of their wishes should be given a greater emphasis at this stage and it will be harmful to them, in possibly incalculable ways, if the children’s relationship with her remains severed for the period envisaged by Ms AG.
Mr Merritt is of the view that if the court does accord, to some degree or other, with the mother’s formal position, it will inevitably result in Ms Bruckner once again attempting to subvert the court’s orders through either an active or tacit campaign involving the undermining of his relationship with X and Y through a process of psychological manipulation of them, which will be self-evidently emotionally damaging to them.
In addition, it is a flavour of the father’s case that such a process, if it is not strongly checked by the court, will also lead to the potential for a loss of confidence, in the general public, regarding how family law is administered. In essence, he fears the children may lose their relationship with him permanently, unless the extreme corrective intervention, recommended by Ms AG, is engaged and this will not be congruent with the findings of Berman J.
I have chosen to summarise these concerns, in the manner in which I have done, to emphasise to all concerned, that I realise what high stakes are involved in the determination of this case, even at this interim or provisional stage. As such, I acknowledge that it is incumbent on me to consider the possibility that Ms Bruckner is much maligned and her combative personality has put off side the various professionals who have come into contact with her. In my view, this is also part of the task of assessing risk in the case. Necessarily, it cannot be an exact or mathematical task but I must always bear in mind the possibility of what if they’re wrong?
In Deiter & Deiter[22] the Full Court said as follows:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[22] See Deiter & Deiter [2011] FamCAFC 82 at [61].
In contrast to Mr Merritt, Ms Bruckner did not create a favourable impression on Ms AG. Ms AG described her as being tangential at times, and inconsistent in some of her responses. The most significant aspect of which is Ms Bruckner’s apparent willingness to negotiate with Mr Merritt and share the care of the children with him, which was a state of affairs not obviously reflected in her previous engagement with the court. In contrast, Mr Merritt indicated to Ms AG that his capacity to trust Ms Bruckner was currently at absolute zero.
In all these circumstances, as previously indicated, Ms AG recommended the court adopting a cautious approach in respect of the children re-engaging with their mother, which was posited on Ms Bruckner undergoing a course of counselling directed towards assisting her (Ms Bruckner) to gain a better understanding the importance of following court orders in future. This led Ms AG to recommend as follows:
As such, future time-spending between [Ms Bruckner] and the children is likely to be contingent upon the positive progress of such therapy, in addition to the positive progress of telephone calls during this time. It is also considered that if, or when, time-spending recommences in the future, it occurs supervised (at least initially), to ensure that [Ms Bruckner]’s responses to the children remain child-focussed and appropriate.[46]
[46] See Specific Issues Report dated 12 April 2023 at [48].
The problem with this recommendation is the willingness of Ms Bruckner to engage constructively with such therapy cannot be guaranteed. It is also posited on the assumption that Ms Bruckner is indeed influencing the children negatively against their father on confected grounds, which she herself vigorously refutes.
In this context, the major challenge for me, coming into the case at an interim stage, when the family concerned is in an acute phase of crisis is that Ms Bruckner’s account of the events, which have brought the parties to this juncture, is markedly at odds with all the other experts involved in the case to date – Ms H, DCP and Ms AG and indeed Berman J, who had the opportunity to assess both the parties and indeed Mr M, in the context of a protracted final hearing.
The only individuals, who support Ms Bruckner are Dr DD and, to a certain extent, Mr GG, whose objectivity, in the case of the former may be open to challenge and whose expertise, in the case of the latter, is clearly lacking. In my view, the evidence to date indicates a singular level of willingness, on Ms Bruckner’s part, to abide by decisions of the court, with which she disagrees, which axiomatically has led to the court being compelled to take more and more extreme action.
Ms Bruckner cross-examined Ms AG at length. I acknowledge that Ms Bruckner is not a legal practitioner and so has limited experience in this area. She put to Ms AG the proposition that she lacked objectivity because of her indirect exposure to the events of 21 December 2022. Ms AG acknowledged that she was aware of these events from discussion with her colleagues but denied that she had been influenced as a result.
In addition, in respect of the proposition that X was likely to have been re-traumatised by having to re-attend at CCS to speak with her, Ms AG indicated her impression of the child was not consistent with such a scenario. My overall impression of Ms AG’s evidence and the conclusions which she reached was that it was unshaken by Ms Bruckner’s challenge to it.
At this juncture, I do not consider that it can be said Ms AG’s recommendation is the obvious product of some form of groupthink or cognitive bias, within the context of the earlier findings of Berman J.
In these circumstances, in my view, it is incumbent on the court to give a significant level of weight to Ms AG’s report, notwithstanding its limited parameters. Certainly nothing in the cross-examination by Ms Bruckner caused me to question the basis of either Ms AG’s expertise or professional objectivity.
LEGAL PRINCIPLES RELATING TO THE DISQUALIFICATION OF THE ICL
The role of the ICL is one created by statute. Pursuant to section 68L(1), the power to appoint an ICL is available only in cases where the welfare of the relevant child is the paramount consideration. Clearly, in the current matter, X and Y’s best interests are both relevant and the court’s most important consideration.
The parameters of the role of the ICL are set out in section 68LA of the Act. In general terms, an ICL must examine all evidence available and act in a manner, which they believe will serve the best interests of the children, whom they represent.
The specific duties of an ICL are delineated in section 68LA(5) and require the ICL:
•To act impartially in dealings with the parties to the proceedings;
•Ensure that any views expressed by the relevant child are fully put before the court;
•If a report or other document that relate to the child is to be used in the case, analyse and examine such a report or other relevant document and ensure that salient features of such report and/or document are properly brought to the court’s attention;
•Endeavour to minimise the trauma to the child associated with the proceedings concerned; and
•Facilitate an agreed resolution of the matters, if possible, so long as it is congruent with the best interests of the child concerned. In jargon of family lawyers, this often referred to as the honest broker role.
This is a highly complex, emotionally laden and controversial case, which clearly justifies the appointment of an ICL. Ms Bruckner seeks the discharge of Ms Shorter after the court has made a number of determinations, with which Ms Bruckner disagrees and which have apparently been supported by the ICL. Ms Bruckner also asserts that Ms Shorter has not been sufficiently proactive in her discharge of her functions in representing X and Y.
As Murphy J pointed out in Knibbs & Knibbs,[47] an ICL has the same obligations to the court as any other legal practitioner, albeit without the responsibility to follow instructions, given the fact that the individual represented by them is a child. This circumstances, when coupled with the ordinary professional responsibilities of a lawyer, necessarily entail an onerous level of responsibility on the ICL. Justice Murphy said as follows:
Once it is understood that the ICL’s primary responsibilities and duties as a legal practitioner (albeit a legal practitioner charged with onerous, particular responsibilities) remain essentially the same as all legal practitioners appearing before this court, it can be seen to follow that an ICL is perfectly at liberty to, and probably obliged to, argue firmly and fearlessly for what they contend are findings or results consistent with the best interest of the particular children they represent in their particular circumstances - provided always, of course, that each and every such submission is founded upon evidence properly and adequately put before the court.
Within that rubric, the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.
In those circumstances, submissions of the ICL, and things said by the ICL, will, perhaps almost inevitably, have the appearance of partiality because, frequently enough, the views thus expressed are likely to accord with the position of one of the parents and not the other (although, it needs to be emphasised, that this is, of course, not necessarily so).[48]
[47] See Knibbs & Knibbs [2009] FamCA 840.
[48] See Knibbs & Knibbs [2009] FamCA 840 at [43]-[45] (Murphy J).
Given these factors, as Murphy J observed, it is perhaps inevitable that an ICL, as with Ms Shorter in the present matter, in pursing an independent and fearless line on behalf of the children being represented, will fall into conflict with one or other of the parties concerned, given the obligation imposed upon the ICL to analyse the evidence of those other parties, invariably the parents of the children being represented. This may be perceived by those individuals as unwarranted and partial criticism of him or her and even an affront to that person’s special position and status of obligation as a parent.
His Honour said as follows:
The Independent Children’s Lawyer is, immediately upon appointment, in an invidious position. He or she is obliged to look beyond the assertions and counter assertions advanced by children’s conflicted parents (and others). In doing so, he or she is presuming, by dint of statutory and other responsibilities, to interfere, to one degree or another, with what can be seen to be a basic right: the right of a parent to parent his or her child in the way they best think fit.
Yet, when parents, through their conflict or the nature and extent of assertions one makes against the other, abdicate to the court decisions about the best interests of their children, views other than their own, including the views of an ICL can, and in the case of the court will, intervene. In that situation, rights and considerations relevant to a determination of best interests enshrined in the Act predominate, as do duties owed to the court by an ICL.
The obligation upon an ICL to act objectively and impartially should not be seen as meaning that he or she should act as a benign or ambivalent mouthpiece for competing evidence. Frequently, doing so can involve an abdication of their proper professional responsibilities.
In Lloyd & Lloyd & the Child Representative (“Lloyd”),[49] Holden CJ listed four non-exhaustive considerations which might lead to the discharge of an ICL, which can be summarised as follows:
·Evidence indicating the ICL had acted contrary to the best interests of the child was being represented;
·The ICL was professionally incompetent;
·The ICL had demonstrated a lack of professional objectivity;
·A continuation of acting would involve a breach of fiduciary duty or a conflict of interest.
[49] See Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 at 87,687 (Holden CJ).
I do not consider that the issues raised by Ms Bruckner support any assertion that Ms Shorter has acted in a way which is incongruent with X or Y’s best interests or that she lack either professional competence or the required degree of objectivity. Rather, the evidence indicates Ms Shorter has been influenced, in the positions which she has advocated to the court, by the expert evidence which has been available to her, including from Mr M.
As Holden CJ pointed out in Lloyd:
It would be an intolerable situation if a party could successfully apply to have a child represented removed simply because that party perceived that the representative was not ‘on side’ or the tide was not running in his or her favour.[50]
[50] See Lloyd & Lloyd & the Child Representative (2000) FLC 93-045 at 87,689 (Holden CJ).
It was for these reasons, His Honour indicated that allegations of impartiality needed to be treated with caution. In addition, given ICL’s are largely publically funded, considerations of public policy are also engaged. It is potentially an expensive exercise for an ICL to be discharged and a fresh one appointed, given the complexity of issues and the number of documents required to be assimilated by any new ICL. These issue are present in the current matter, which has generated many lengthy and complex documents and issues.
Chisholm J raised similar considerations in T & L,[51] when he said as follows:
The critical question in considering an application to remove a child's representative is whether the representative is likely to carry out his or her task properly ... it might well be appropriate to remove a child's representative where the evidence showed that he or she had deliberately misled the Court or behaved in unethical or unprofessional ways. It might also be appropriate to remove a child's representative where circumstances arose giving rise to reasonable apprehension that the child representative would not deal with the matter impartially. Such circumstances might cast doubt on the ability of the child's representative to "act in an independent and unfettered way in the best interests of the child.
It is appropriate to note in this connection that it is frequently part of the child's representative's role to advance propositions which will be seen by one party as contrary to that party's interests and/or contrary to the child's interests. Differences of views are of course inevitable in litigation. While a child's representative should be removed if there are proper reasons for doing so, it would be quite wrong for a Court to remove a child's representative merely because a litigant has taken the view that the child's representative is acting contrary to that litigant's position, or (from that litigant's point of view) contrary to the child's best interests. I agree with the child representative's submission that it is important to avoid a situation in which the child representative "is a captive or the most vocal, litigious or dissatisfied parent or party.[52]
[51] See T & L (2000) 27 Fam LR 40.
[52] See T & L (2000) 27 Fam LR 40, 49 [54]-[55] (Chisholm J).
In my view, there is no cogent evidence to indicate that Ms Shorter has ever misled the court or has conducted her role with anything other than professionalism. The fact that Ms Bruckner disagrees with submissions made on the ICL’s behalf is not sufficient to have her discharged nor is it congruent with the proper administration of justice in family law matters. Given the huge numbers of documents in this case, prepared over the last seven years, it would represent an unwarranted imposition of the funds of the Legal Services Commission of South Australia for another ICL to be appointed.
It would also appear to be the case that, as with Ms AG, Ms Bruckner is of the view that Ms Shorter is biased against her and, as such, has been rendered incapable of ascertaining the true views of the children, which are to be returned forthwith to her care.
The test of whether an Independent Children’s Lawyer should be dismissed on the grounds of perceived bias is similar to that for judicial disqualification. The perception of bias is to be judged on an objective basis, not on what a party to the proceedings personally feels, no matter how strong that feeling is. In Kingley & Arndale (No 2),[53] O’Reilly J formulated the test as follows:
…in relation to an Independent Children’s Lawyer the appearance of bias may be tested by whether a fair-minded lay observer might reasonably apprehend that the Independent Children’s Lawyer might not bring an impartial or unprejudiced mind to the task of independently representing a child.[54]
[53] Kingley & Arndale (No 2) [2010] FamCA 968.
[54] See Kingley & Arndale (No 2) [2010] FamCA 968 at [33] (O’Reilly J).
Other authority makes it clear that this test must be applied within the unique rubric of duties imposed upon an ICL, including the fact that very often the relevant proceedings, as here, are highly controversial and emotionally laden. In Dickens & Dickens,[55] Watts J said as follows:
The test that I shall apply is that the father needs to establish that the Independent Children's Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children's Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children's Lawyer by s 68LA of the Act. That “rubric” is discussed by Murphy J at [41] – [61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children's Lawyer to argue firmly and fearlessly for what the Independent Children's Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children's Lawyer is in when fulfilling that role because it may be that the Independent Children's Lawyer is required to challenge the position of one or other of the parents.[56]
[55] Dickens & Dickens [2016] FamCA 115.
[56] See Dickens & Dickens [2016] FamCA 115 at [52] (Watts J).
I do not consider that a fair-minded lay person, who was aware of all the ins and outs and complexities of this case, over the many years it has been before the court would consider that there was anything improper in the submissions which have been made on behalf of the ICL in this matter or that such a person would perceive that Ms Shorter has acted in any way inconsistent with her professional obligations towards X and Y. In these circumstances, I dismiss the mother’s application that Ms Shorter be disqualified.
CONCLUSIONS
In my view, a consideration of the various section 60CC factors in the case favour, on balance, the court making the orders as sought by the father and ICL. In my assessment, there is a grave risk that X and Y will be deprived of the benefits of having a meaningful level of relationship with their father and being exposed to abuse, in the sense of sustaining serious psychological harm, if orders are made as sought by the mother.
At this stage, I do not consider that I am in a position to disregard Ms AG’s opinion that the extraordinarily negative views, which X and Y conveyed to her concerning their father, are not congruent with the actual nature of their relationship with him, which Ms AG, albeit briefly, observed to be warm, comfortable and unforced.
The specifics of what actually happened between 31 January and 3 February 2023 are not entirely clear to me. I accept that it is more probable than not that the children themselves elected to abscond from school and go the short distance to their mother’s home, which clearly they know very well indeed. Thereafter, Mr Merritt was able to retrieve Y but not X, leading to the proceedings which came before me on 23 February 2023. Ms Bruckner was not willing to return X.
In these circumstances, what is clear to me is that the notations contained in Kari J’s orders of 7 February 2023 were correct, namely X was in her mother’s care and was not going to school as required; and Y was in his father’s care and was not going to school either. This was a situation which I found to be unacceptable and contrary to the children’s best interests.
It seems to me to be more probable than not that it was more open to the mother to rectify this situation than it was to the father, given the content of the final order of Berman J. She elected not to. In addition, such an action, on her part, would have been in keeping with the orders of Mead J and more consistent with the final orders of Berman J.
Regrettably, the evidence available to me indicates that it is the mother, rather than the father, who is not able to abide by court orders and, as such, it is her conduct which has led to the ever widening impasse between the parties, to which the children have been and continue to be exposed. I appreciate that Ms Bruckner disagrees with the orders of the court. However, that does not entitle her to any wholesale disregard of them.
As pointed in the early judgment, I must have regard not only to the parties and the children in the current matter, but also other users of the court system, who rely on adherence to orders, made by the court, following the adjudication of dispute between them. This concept is embodied in the shorthand expression The Rule of Law.
It is a corner stone of democratic societies and applies just as much to disputes, between citizens, regarding parenting arrangements, as it does to commercial disputes between large corporations. Parties to litigation are required to abide by the relevant adjudications of the court and if dissatisfied with them appeal the relevant ruling. The applicable court cannot condone self-help, other than in extraordinary circumstances and only for confined periods of time before its jurisdiction is properly engaged.
As previously indicated, the court is called upon to assess the risk arising for X and Y in the context of an abridged interim hearing. Clearly, the children know both of their parents well and it must be the case that each child has a significant level of relationship with both their father and their mother. In these circumstances, I acknowledge the orders as sought by the father have a significant level of risk inherent in them, given the on-going disruption they will impose on X and Y’s relationship with their mother.
I have no reason to doubt that the children are desirous of seeing their mother, as the event of late January demonstrate. I accept that X and Y love their mother and she loves them. Accordingly, there are deficits, for the children, of them not being able to interact with her for a significant period of time, given the centrality this relationship has played in their lives up to this point.
However, at the same time, it seems to me to be improbable that the earlier orders of Berman J can be seamlessly reinstated given Ms Bruckner obstruction of them in the latter part of 2022 and the more recent events of this year. Rather, it would seem to me there is a significant risk that the mother will attempt, either tacitly or more actively, to undermine the children engaging with the father in any way which could be considered normative. I do not consider that this would be in their best interests, given the strength of Mr Merritt’s relationship with them.
It is in these circumstances, the court must assess the multi-faceted risk for the children arising from a reinstatement of the previous regime of orders. In my view, there is a high risk of the children suffering some form of psychological harm for the following reasons. Firstly, the propensity of the mother to denigrate and demonise the father to the children, which is not concurrent with their own direct experience of him; secondly, her propensity to compel the children to act in a manner, which is consistent with such denigration; and thirdly, if these actions are not curtailed, the risk the children will lose the benefits of having a meaningful level of relationship with a parent, in the form of their father, which is highly significant to them.
At this stage, on the basis of the evidence available to me, I would assess this level of risk as being unacceptable for the court to take, even in the context of the unpalatable implications of the children’s relationship with their mother being held in abeyance, whilst their relationship with their father is consolidated. However, if and when more evidence comes to light, it is an outcome which is capable of being reversed at a later stage.
In reaching this conclusion, I have borne in mind the views of the children, as expressed most recently to Ms AG and also as can be inferred from their actions on 31 January 2023. However, it seems more probable than not that these views are more reflective of the extraordinary level of conflict between their parents, to which they have long been exposed; the influence of the mother, who has gone to extreme lengths, in the past, to restrict the children having a meaningful level of relationship with their father; and the children’s desire to ensure their mother does not become emotionally distraught as a consequence of them being with their father. In my assessment, these are significant psychological burdens for the children to bear.
As such, I agree with Ms AG’s assessment that the court needs to exercise a high degree of caution in adopting the children’s ostensible wishes, on the basis of their description of their father to her, which was not consistent with her earlier observation of how X and Y actually interacted with him, which was warm and familiar in nature. Accordingly, I do not consider that the children’s views can be the definitive factor in the case at the present juncture. In my view the various factors impacting on those views remain uncertain.
This is by no means the optimal outcome for the children. If the conflict and opposition between the parties continues unchecked, it will lead the court to having to make further unpalatable decisions. Influencing such decisions is likely to be the court’s assessment of who of the parties has the greater capacity to abide by its orders in the future.
In my view, the ability to support an appropriate level of relationship between children and the other parent concerned is a central attribute of what is involved in being an insightful parent. In addition, such a capacity is likely to be emotionally supportive of a child. At this stage, the evidence indicates that Mr Merritt has these attributes in greater depth than Ms Bruckner.
Much of Ms Bruckner’s case is predicated on her assertion that Mr Merritt is a coercive and controlling person, with a significant substance abuse problem. As such, the court’s preeminent responsibility is to protect the children from him. Such concerns were not vindicated as a consequence of the final hearing before Berman J and have not been confirmed by DCP as a result of its recent involvement in the case. To the contrary, the relevant DCP officers considered that it was Ms Bruckner who represented an emotional risk to the children.
The parties have been involved in litigation, with one another, for over seven years, much more than half of the life spans of each of their children. Regrettably that litigation shows no signs of being over soon. Rather each of the parties concerned continues to struggle to gain the upper hand over the other.
Mr Merritt has demonstrated that he will not walk away from the case, for fear of the children losing their relationship with him and, of course, because of his love for them. I have significant doubts that the therapy recommended for Ms Bruckner by Ms AG will be either accepted by her or, if it is, that it will be efficacious. Accordingly, the litigation seems destined to continue with the risk of the children being collateral damage to it.
I acknowledge, at this juncture, an order that suspends the children’s time with their mother can only be a temporary intervention, whilst more evidence is gathered. This evidence will consist of the mother’s response to the recommended counselling, if she is willing to undergo it; any forensic psychological assessments of the parties undertaken at the direction of the ICL; and a further detailed family assessment report.
Ms Bruckner has no confidence in any expert who is employed directly by the court as a child court expert. She has no confidence in Ms H. In these circumstances, I will direct that a Family Report be prepared by a regulation 7 expert, as nominated by the National Director CCS, with such report to be released on or before 1 December 2023. The effect of this order being that the resulting Family Report will be prepared by an expert who is not directly employed at CCS.
As I have already indicated, as with all decisions based on limited evidence, garnered from conflicted sources, regarding the motivations and views of children of tender years, there is a possibility that the conclusions I have reached are erroneous. Certainly Ms Bruckner is unlikely to accept them.
It is highly regrettable that the ever increasingly polarised positions of the parties has resulted in the court having to make more and more extreme orders. As I have previously attempted to indicate to Ms Bruckner, the appropriate response to be taken, when a litigant disagrees with any particular determination or ruling of a lower court, is to seek a review of such decision in a higher court rather than attempt to subvert the impugned decision through episodes of self-help.
In these circumstances, I confirm the orders I made on 24 February 2023. I do not consider it feasible for the children to return to B School. The only mechanism, at this stage, by which the children can engage with their mother is by electronic means. These are interim orders pending the production of yet another family report. It is feasible that this report will recommend a different outcome than that envisaged by Ms AG. I cannot know.
However, at this point, I do not believe that Ms Bruckner has been able to demonstrate any obvious flaws or deficits in Ms AG’s methodology or approach, particularly when viewed in the longer retrospect of the lengthy litigation between the parties, which ultimately resulted in Berman J determining that X and Y should live more with their father than their mother. In these circumstances, I am not prepared to disregard Ms AG’s recommendations or the submissions of the ICL.
It remains open to Ms Bruckner to adopt the recommendations of Ms AG in respect of herself seeking out a regime of counselling directed towards assisting her to come to terms with her current situation and the need for adherence to court orders. As I have observed, it is open to the court to reverse this interim order, if and when new evidence comes to hand. In addition, it is also open to Ms Bruckner to seek leave to appeal the interim orders which follow from these reasons for judgment, which I acknowledge have very serious implications for all concerned.
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 two hundred and fifty-five (255) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 19 May 2023
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