Noble & Noble
[2023] FedCFamC1F 397
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Noble & Noble [2023] FedCFamC1F 397
File number(s): BRC 2693 of 2018 Judgment of: BAUMANN J Date of judgment: 10 May 2023 Catchwords: FAMILY LAW – PARENTING – Where in 2021 the Court changed the children’s residence to the father and ordered a moratorium of time with the mother, with a gradual increase of time with the mother – Recovery Order now sought by the father – Where the children continue to express a wish to live with the mother – Where there is recent updated family report which recommends the children continue to live with the father for their emotional development and wellbeing, and limit the children’s time with the mother to block school holiday time – Where the expert opines that the children’s maturity is less than their chronological age – Where the expert has seen a decline in the children’s emotional and developmental progress when they were having increased time with the mother – Children to return to the father’s care Legislation: Family Law Act 1975 (Cth) Cases cited: Abbott& Abbott [2021] FamCA 363 Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 10 May 2023 Place: Brisbane Solicitor for the Applicant: Wilsons the Family Lawyers Solicitor for the Respondent: Litigant in person Independent Children’s Lawyer: Ms S Duncan, Legal Aid Queensland ORDERS
BRC 2693 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NOBLE
Applicant
AND: MS NOBLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
10 MAY 2023
THE COURT ORDERS:
1.That the children, X born 2007 and Y born 2007 (“the children”) be returned to the care of the Applicant father by 5.00pm on 10 May 2023.
2.That changeover on 10 May 2023 occur at the Suburb O Police Station, noting that police officers will not be obliged to facilitate the changeover.
3.That these proceedings be adjourned for Case Management Hearing (and the issuing of a Recovery Order if the children are not returned to the father) at 9.30am on 12 May 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
4.That the parties have leave to appear by telephone on 12 May 2023 by using the Microsoft Teams conferencing system as follows:
(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25am on 12 May 2023; or
(b)They shall each telephone … by 9.25am on 12 May 2023;
(c)They shall each then enter the pass code …; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.
5.That the Independent Children’s Lawyer be granted leave to provide to Dr E a copy of the updated family report prepared by Ms H dated 17 April 2023.
6.That the issue of costs be reserved.
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 the pseudonym Noble & Noble has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
In June 2021, the Court published Reasons (see Abbott& Abbott [2021] FamCA 363), for Orders which were likely to be very difficult for the children the subject of these proceedings, X and Y, born in 2007. For the reasons identified in that Judgment, the Court took the view it was in the best interests of the children that they begin to live with the father, and that after a moratorium, the Court would consider what further time the children would spend with the mother. I do not propose, in these ex-tempore Reasons, delivered urgently, to set out all the issues dealt with in the Reasons for Judgment, which speaks for itself.
One factor which is, of course, very interesting in the dynamics of this case is the parents, who separated in August 2012, for nearly seven years were able to maintain, by Court Order and otherwise, a form of co-parenting, including, at one time, equal time. The Orders made by the Court for the Reasons given, were made notwithstanding that there was evidence that the father had assaulted the child, X; that there had been a breakdown, as identified in the Judgment, between the mother and the older children of the relationship, particularly Mr B. The Court made a finding at paragraph 73 of the said Reasons that the children were at risk of emotional harm in the care of the mother. I went on to say this:
73.… although I do not say it is deliberate, vengeful or vindictive conduct of the mother. On my assessment on the evidence, more likely her conduct is a product of passive indifference; a need for her children to feel that their mother believes everything they say, and through a sense of insecurity the mother has (certainly not helped by the deterioration and estrangement of her relationship with [Mr B] and [Ms C]), a need for the mother which has, and will if nothing alters, prove problematic for the twins.
At that time, the Court identified the strong wishes of the children, at paragraph 74, which were that they remain living with the mother. That has not changed. After the Judgment in June 2021, the experienced Independent Children's Lawyer, Ms Duncan, having spoken to the children recently, confirms, as the family report does, that the children’s wishes have not changed.
At paragraph 84 of my earlier Judgment, I noted the concession made by the mother that the girls had become “manipulative”.
As the Judgment sets out, having put in place a period of moratorium with no time, and with the benefit of ongoing therapeutic assistance to the children from Dr E, it was my hope that it would be possible for a more inclusive care arrangement between the parents to occur. The history would show that after the trial, and after the Reasons were delivered on 9 June 2021, the matter returned to the Court after a further report from Dr E (the children’s therapist) on 1 October 2021, when the Court ordered the mother recommence time with the children at G Contact Centre.
Thereafter, on 31 March 2022, after a further report from Dr E, I ordered, by consent, that the children start spending unsupervised day time with the mother, graduating up to, after a period of four months, each alternate weekend from after school Friday to 4.00pm Saturday. The children were ordered to have an assessment by a neuropsychologist, which was undertaken by Dr R, whose report was before me on 13 September 2022, when again, by consent, the parties agreed that the time the children spend with the mother from 7 October 2022 increase to each alternate weekend from after school Friday to 4.00pm Sunday. It is worth noting that whilst graduating time with the mother was occurring, the children were primarily in the care of their father.
It was my hope that the parties may have been able to reach some resolution on long term orders, because the impression I was given from the mother on more than one occasion, was that she was, unlike her position at the trial, more supportive of the children’s relationship with the father; that she saw some benefit for the children having a relationship with the father, and, in particular, she also understood, as difficult as it was, they were getting some benefit from having time with the extended paternal family, and their brother Mr B, in particular. On 8 and 9 March 2023, as a result of earlier Orders, the original family writer and court expert, Ms H, conducted family report interviews.
The report issued on 17 April 2023 and was released on 21 April 2023. I will deal with some aspect of that report shortly. What we know, however, from the evidence of the put before the Court now, arising from an Application in a Proceeding filed by the father on 4 May 2023 seeking a recovery order, is that there had been two occasions since October 2022 when the children attempted to return to the mother. One involved a police attendance initiated by an unidentified person – although the father and at least one of the children suggest it may have been the mother.
On 17 April 2023, when the father was on a work trip to City T, known to the children, he had made arrangements for a person he calls his stepdaughter, Ms S, to care for the children overnight. On 18 April 2023, the children did not go to school, and it seems, as a result of a number of text messages I have now read in the father’s material, the girls had a plan by which they had arranged to go to the mother’s home by taxi; had used funds at their disposal to purchase, at least, a mobile phone and had, one might say, decided that they would continue to live with the mother from that point.
Again, I make the point that the children’s wishes to live with the mother have never altered. It was known to the Court at the trial in June 2021; is known now, and most likely will be the position at the ultimate trial of this matter. On the mother’s material, she explains and would say that she had nothing to do with the decision of the children. That will be a triable issue.
However, at least, by 20 April 2023, the mother says, and repeats, that she is not declining to return the children, but they are declining. Of course, the Orders are imposed upon parents, not children. In effect, what the mother is saying is she is unable, through any process, to have the children return to the father’s care. The mother decided to take the children to a doctor, seemingly to try and support her position, one might think. A very brief report from a general practitioner at Suburb O, directed to “Whom It May Concern” dated 23 April 2023 is produced. It does not seem to be a report that is in any way, shaped by a full understanding of the facts of this case.
The doctor in respect of both children say that they feel “threatened to go back” to the father’s home. It is not clear why they feel threatened to go back to the father’s home. It incorrectly says, of course, that Court orders, since the mother and father “split”, require them to live there. Again, that is not what the history of this matter is and reflects that this doctor did not have a full understanding, at all, of the history. The doctor observed in respect of each child, that they are stressed about the “verbal and emotional abuse” from her father, “which is making [their] anxiety worse”. The doctor reports that one or other of the children, in fact, it is exactly the same wording for each child, as if neither of them said something different, is that the child “feels that she will attempt suicide if she has to go back to Dad’s place”.
I should say that there is no evidence before me, at this stage, either in the family report or the ongoing therapeutic involvement by Dr E, which suggests these children have contemplated self-harm in any way.
The Application comes before the Court today for a recovery order. I had explained, as the transcript will show, the recovery order would involve the police being required to collect the children and return them to the father. I am however of the view, on an interim basis, that it would be contrary to the best interests of the children to accede to the mother’s Response to the father’s Application, namely that there be a change of residence.
Almost entirely, the mother’s case is based on a fact (which has not changed since at least June 2021, namely that the children express a wish to live with her. However, the history shows that since the cessation of the moratorium, apart from a couple of occasions, the children have regularly returned to the father’s care after spending time with the mother, initially supervised, and then graduating to longer periods. I am prepared to accept, on an interim basis, that this is reflective of a capacity of the mother to continue to ensure that the children maintain the Orders that the Court made in their best interests, in some form, even though I accept she was not happy with the Orders made in June 2021, or the process since then.
The decision today might have been much more difficult if I did not have the benefit of the updated family report of Ms H. Ms H, it should be recalled, is the report writer who initially prepared the report in this matter. Ms H has therefore undertaken a longitudinal assessment of these children. I make the following observations about the family report which I, as I understand both parties, have read. The report makes clear that:
(a)the children are in grade 10 at the D School, work part-time at U Company and have attended monthly therapy with Dr E for now nearly 18 months;
(b)the children have recommenced their relationship with the older siblings, Mr B and Ms C;
(c)in particular, they feel close to and enjoy the relationship with Mr B. Sadly, for reasons identified in the earlier Reasons for Judgment, the mother has an estranged relationship with her older children. At least, in respect of Ms C, that was shaped in some way by false allegations of sexual abuse levelled at the father by Ms C, and where Ms C indicated, on a later date, the mother has encouraged her in some way to make. The mother, of course, denies that is the case, and no particular finding was made in that respect;
(d)the father, in the family report, expressed to the report writer his concerns about the effect on the children of the increased time as has been occurring with the mother;
(e)the mother, at paragraph 16 of the family report, indicates that her preference at that time was that the children should live in an equal time arrangement but, at the very least, the children should spend no less time with her than three nights a fortnight;
(f)although these will become triable issues, at paragraphs 17 and 19 of the family report, the report writer reflects on the presentation of the parties and the amount of insight they have into their parenting. Again, they are parenting matters which will need to be considered at trial;
(g)in that respect, at paragraph 34, Ms H, an experienced court child expert, opined that the mother demonstrated no insight with respect to the children’s relational experiences and needs. In this regard, I should note that these children have been assessed by Ms H, and it appears, Dr E, as children who have less “maturity than their chronological age”. They have some challenges in terms of their schooling and their intellectual development. Nonetheless, they seemed delightful children, much loved by both the mother and the father;
(h)Dr E was contacted by Ms H for the purpose of the family report. At paragraph 40, Dr E identified the issues and characteristics of the children I have just mentioned. She also said to Ms H, and direct evidence from Dr E will be required at a trial, that she had seen a decline in the girls’ emotional and developmental progress when they were having increased time with the mother. She opined that there may be a degree of enmeshment between the children and the mother. Again, they are triable issues, but some of these issues were identified at the time of the trial in June 2021. The father expressed his concerns to the report writer that fortnightly time was proving disruptive and should be reduced;
(i)At paragraph 42, the mother was recorded in March 2023 as saying that equal time is best for these children. As I indicated a few times this morning, the children’s wishes have not changed. As much is identified at paragraph 45 of the updated family report. However, Ms H says that the Court should be cautious in applying too much weight to the children’s wishes, as expressed. I note, again, for the record, that the Independent Children’s Lawyer has spoken to the children and has told the Court today that the wishes as apparently expressed in the family report have been relayed to her in the same way. Further, at paragraph 50, the children are recorded as raising concerns about the father’s strict rules and what they say is controlling behaviour. This relates to the way, in part, that his parenting requires regular exercise and other requests.
The children clearly do not like it. They were negative about the father to the report writer, whilst at paragraph 41 they spoke wholly positively about the mother. X, at least, expressed in paragraph 52 that whilst she understands it is unrealistic to live with the mother full time, she would be prepared to have an equal time arrangement. The girls, at paragraph 44, indicated, as the mother says they had to her, and as the Independent Children’s Lawyer has heard from the children, they would run away from the father’s home.
For the reasons identified in the family report, Ms H recommends that these vulnerable children should continue to live with the father and further, for their emotional development and wellbeing, that it would be appropriate for the children’s time with the mother to be limited to block time in each school holiday period, with two block times at Christmas. It may be thought that Ms H did not anticipate the situation that I now face, but she did. At paragraph 70 she says:
Whilst it is identified that the children’s increasing ages increases the risk of them self-placing, it is assessed as being in their best interests that their documented parenting arrangements are congruent with the genuine assessments of their needs and best interests. The children also do not demonstrate a history of risk as a consequence of abscondment, suggesting that this risk does not outweigh the benefits of the children being supported to continue to live in the father’s household, which is assessed as best meeting their needs.
This family report dated 17 April 2023 was released to the parties on 21 April 2023. It is noted that the actions of the children which took place on 18 April 2023 are likely to be before the report was released. Nonetheless, these children are, I think, capable of understanding the flavour of what was being discussed at the family report interviews.
This is a difficult matter. A court would never wish to put children’s lives or wellbeing at risk. There is no evidence, at this stage, which would satisfy the Court that the children are at any risk of harm in the father’s care. Whilst I accept that his parenting style might be less attractive to these children, that is a different issue.
The evidence, at least that I have read since this matter was before me for trial in June 2021, might suggest that the mother has really not yet been able to find a way of persuading or guiding her children to do what is in their best interests, because she is firmly of the view she is acting protectively in their interests. I am satisfied that these children’s wishes have not changed and that there could be some difficulties in the transition back to the father, and thereafter, until a trial. Nonetheless, on the evidence I have it would be a breach of my judicial duty, a duty which extends to considering the evidence even though at times untested and notwithstanding the submissions of the Independent Children’s Lawyer who has some concerns about the children returning to the father, as she has expressed, to not apply the evidence before the Court in determining what is in the children’s best interests.
I am of the view that it is in the children’s best interests they return to their father’s care immediately. In saying that, I accept this will not occur without difficulty. The mother today, supported by a friend which I think may have given her some emotional support, has made it clear that she is unable to do anything more than she has done. Although she did not give evidence from the bar table, of course, I was concerned about the children who chose not to go to school today, merely because the mother had to leave the home at 6.00am to come to Court. She explained on other occasions when her work required her to perhaps leave home early and not take the children to school, the children caught the school bus.
It will need to be unpacked at a trial why the mother thought it was appropriate to leave the children unattended and not ensure they attended school on a school day.
I propose to order that the children return to the care of the father by 5.00pm today. I will take on board a proposition that was put that changeovers occur at the Suburb O Police Station. In so saying, I need to make it clear to the unrepresented mother that it will not be a police officer’s obligation to supervise the changeover. The Suburb O Police Station is simply a location where any adult behaviour which might cause concern to the police can be dealt with if necessary. The alternative to a voluntary changeover is to cause a recovery order, which is the application of the father, to be made. I do not propose to make that recovery order today.
However, if the children do not return to the father’s care, as I now order, it seems that no one advances any other alternative as to how the children be required and can be moved back to the father’s care. Clearly, the mother has made it clear in her affidavit and in her submissions today, that she believes she cannot do anything more than she has done, pointing to the fact that she says the children are bigger than her. Of course, a parent’s authority often is not about size, but is about influence. It is about children respecting the authority of their parents and about the children accepting that a parent will often give them advice and tell them to do something they may not wish to do. There is, at least, a doubt arising from the earlier Judgment and the events since 17 April 2023, as to whether the mother has an insight into, and possesses the skills necessary for these children, to encourage them and to ensure they do what is right and return to the father.
The matter will return to my list at 9.30am on Friday, at which time the father can appear by telephone, noting his lawyer practises in City V, I think. I do not need the mother to get on the train at 6.00am to be before me. It will be absolutely clear by then whether the children have returned or not. In between now and 9.30am on Friday, if anyone, including the Independent Children’s Lawyer, has a better option than a recovery order to enforce the orders I make today, I will be happy to hear it. Otherwise, my intention will be to consider making a recovery order. On Friday, I will assess what further steps, if any, need to be undertaken in relation to the current Orders. For example, the Court will need to consider if the children are, in whatever form, returned to the father’s care as I am ordering, or as I am prepared to ensure occurs by way of recovery order.
Whether the children’s time with the mother again should be suspended until the trial is a matter I need to consider later in due course. I will hear submissions about that.
As to when the trial takes place, it seems that Ms Duncan, the Independent Children’s Lawyer, agrees with me that apart from some further material from the parties, there is no other forensic evidence apart from, perhaps, direct evidence from Dr E, which the Court needs to have in this case if it proceeds to trial. I would urge the mother to comply with the Order made by the Court today. I cannot be any clearer to her what the consequences for these children are likely to be. I will cause these reasons to be published.
I reserve the costs of the Application today.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 19 May 2023
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