Peddar and Vina (No. 3)

[2008] FamCA 947

FAMILY COURT OF AUSTRALIA

PEDDAR & VINA (NO. 3) [2008] FamCA 947

FAMILY LAW – CHILDREN – Sole parental responsibility

APPLICANT: Mr Peddar

RESPONDENT: Ms Vina

FILE NUMBER: MLC 8853 of 2007

DATE DELIVERED: 6 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ex parte

Orders

1.   That until further order the father have sole parental responsibility for the children F born … April 1997 and E born … April 1999.

2.   That the reasons for judgment this day be transcribed urgently and that copies be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8853 of 2007

MR PEDDAR

Applicant

And

MS VINA

Respondent

REASONS FOR JUDGMENT

ex tempore

1. The ex parte application of the father filed on 13 October 2008 comes before me again today and he seeks an order that he have sole parental responsibility for the children F, born in April 1997, and E, born in April 1999.  He informs me that he has made arrangements to travel to Sweden on Monday, 10 November 2008, in the hope of recovering the children who have been subject to proceedings and orders made in both Australia and Sweden.

2. The father's application was last before on 13 October 2008 when I made certain orders suspending any entitlement of the mother, Ms Vina to spend any time with the children and ordering that the Australian Federal Police, and any police forces of the states and territory, render such assistance as may be possible to recover the children and return them to the care of the father.  By paragraph 4 of the father's application he sought an order for sole parental responsibility of the children F and E.  I did not make that order at the time but neither did I dismiss the application. 

3. Today the father appears and prosecutes this aspect of his application, he says for the purpose of cross–border law enforcement within Europe.  In particular, he informs me that the legal systems in Sweden and within Europe do not recognise anything other than full parental responsibility.  Whereas, in Australia, there is parental responsibility which pertains to major long term decisions affecting the children and then orders which can provide the parent with whom the children are to live.  Other parenting orders can provide when and in what circumstances the children can spend time (face to face) with a parent or communicate (non face to face) with a parent.  I do not know whether the contentions of the father about overseas jurisdictions and applicable law are correct. I merely recite them here because that is in the context of his application.

4. The application brought by the father is ex-parte the mother, that is, she has not been served with it.  It is only in exceptional circumstances that a court would make orders without affording the respondent to the application an opportunity to be heard on whether or not the orders should be made.  In the circumstances of this case, however, I am satisfied that the circumstances are exceptional.

5. In considering whether to make the order sought by the father I must have regard to the primary considerations of protecting the children from physical and psychological harm and assess the benefit to the children of having a meaningful relationship with each parent.  There are additional considerations to which I have regard as appropriate.

6. For all intents and purposes the father has exercised sole parental responsibility since the children and he relocated to Australia in 2004.  As the facts of this matter have unfolded before me over the last year/10 months, I am satisfied that it is appropriate that the order be made on an interim basis.  That means that the mother will, if she wishes, have a right to be heard on whether the order should continue.  I take this opportunity, however, to set out very briefly the context in which I make this order. 

7. The mother, father and the children resided in Sweden for the duration of the marriage.  The mother and father separated in Sweden in 2003.  There were proceedings in courts of appropriate jurisdiction in Sweden before whom a major issue was the wife's allegation that the children had been sexually abused whilst in the care of the father and, in particular, by their uncle.  In proceedings which were before me in October and November 2007, I read the various decisions of courts in Sweden.  It is apparent from those decisions that the mother's allegations were not accepted.  Ultimately, the father was awarded primary care of the children and entitled to relocate with the children to live permanently in Australia which he did on 7 February 2004.  For a time thereafter there was compliance with orders that the children spend time with their mother in Sweden twice yearly.

8. In 2006, the mother made application pursuant to the access provisions of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“the 1980 Convention”) for the enforcement of access rights.  In due course an application was made by a central authority in Australia under our relevant regulations. Those proceedings were determined by me by orders made and reasons delivered on 30 June 2008.  That determination is reported under the pseudonyms Peddar and Vina.  Decisions in this court are anonymised to protect the privacy of children and parties.

9. In that determination in June 2008, I dealt with the father's concern that, in the event that the children were permitted to spend time with their mother in Sweden, she may not return them.  He sought a raft of orders by way of precautionary measures, or that the children only be permitted to see their mother in Australia.  It was not then part of the father's case that the mother would continue to make allegations that the children had been sexually abused and directly or indirectly embroil the children in those allegations.

10. Before I delivered reasons on 30 June 2008 - the mother did raise allegations of sexual abuse.  I was not aware of those at the time my orders were made.  However, I decided that it was appropriate to permit the father to reopen the proceedings and for the court to examine the further evidence about the mother’s actions.  Those second proceedings were initiated by the father on 28 August 2008.  In those proceedings I was asked by him to vary my orders so that any time between the children and the mother take place in Australia. According to the father, the mother's mental state was such that he could not be satisfied she would not embroil the children in further allegations of sexual abuse if she was given time with the children, initially unsupervised and, finally, outside Australia.  The allegations which had been sent by the mother to the local police and in respect of which the children were interviewed by the police at school, were then described as having about them bizarre elements and were predominantly the same as the Swedish Courts had not accepted in 2003 and 2004.

11. The mother was a party to the second round of proceedings, in August/ September 2008.  She appeared before the court and was represented by senior and appropriate practitioners of this jurisdiction.  It is important to note that the mother and her practitioners were given an opportunity to either ask the Court to deal with the substance of her sexual abuse allegations.  The mother decided to abandon the allegations of sexual abuse and her lawyers advised the court accordingly.  I was informed by her lawyers that the mother was accepting that there had now been adequate investigation of those matters and that she did not hold fears for the children in the care of the father.

12. Of course, had the mother wished to proceed with a kind of parenting application which would have required an examination of the sexual abuse allegations, this would have been an entirely appropriate forum in which to do so.  Not only were the mother and father before the court, the children were within the jurisdiction.  The children are familiar with a family consultant who is the provider of social science evidence to this court.  The alleged perpetrator was also present within the jurisdiction as are the police officers who most recently interviewed the boys at their school.

13. As part of the court’s preparation for the second round of proceedings, the children and the mother were seen again by the family consultant.  His evidence, which I accepted, was that it was absolutely essential that the mother be psychiatrically assessed so that mental illness of the mother could be eliminated as a factor in the mother's recent complaints. 

14. In due course, a psychiatrist was appointed and the mother attended upon that psychiatrist.  I received and accepted the evidence of the psychiatrist to the effect that the mother, when making the last raft of sexual abuse allegations had done so out of desperation and hopelessness and at a time when she thought she may not again see the children.  I also accepted his evidence that the mother was not likely to be similarly affected by having to return the children to Australia at the conclusion of any time she was entitled to spend with them in Sweden.

15. In the second round of proceedings, I did not interfere with the orders that I had made on 30 June 2008.  I required the children to travel to Sweden.

16. The children travelled to Sweden on 10 September 2008.  The children were due to return to Australia on 11 October 2008 but were not returned.  On 13 October 2008, as indicated, the matter was before me.  Amongst other things, I received evidence from the Marshal of the Family Court of Australia who testified that he had been in contact with Australian Federal Police Operations Coordination Centre and Australian Customs and had ascertained that the children had not entered Australia.  He had been informed that the matter was in the hands of Interpol in Sweden and that the children had been reported as missing persons.  I made orders on 13 October 2008 which suspended any entitlement of the mother to spend time with the boys, and ordered that the boys be returned to the care of the father. 

17. The father today submits that there is apparent confusion about the relationship between my orders made on 13 October and the orders made on 30 June 2008.  On 30 June 2008 I ordered, amongst other things, that the mother and father share parental responsibility for the children, and that the children live with the father and spend specified time with the mother.  On 13 October, I ordered that the children spend no further time with the mother and that the children be immediately returned to the father and that they live with him.

18. The effect of the Order made on 30 June and the Order made on 13 October 2008 is that, whilst the mother retained joint parental responsibility in respect of F and E, she had no entitlement whatsoever to have the children in her temporary or permanent care and that the children were required to be returned to the father by law enforcement agencies or other means.  Today the father seeks an order that he have sole parental responsibility and I will, on an interim basis and subject to the mother's right to be heard, make an order in those terms.  I do so for the avoidance of doubt in other jurisdictions.  However, as indicated, I have done so after in light of the primary and additional considerations to which I am required to have regard when determining what orders are in the best interests of the children.

19. The primary considerations of the benefit to the children of having a meaningful relationship with both parents (S60CC(2)(a)) and the need to protect the children from harm and from being exposed to abuse or neglect (S60CC(2)(b)) each support the relief sought by the father.  Some of the additional considerations weigh more heavily than others.  In this case the most weighty are the need to protect the children from harm, the parental capacity of the mother and father including how each has discharged his or her parental responsibilities to date and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship with the other.  The actions of the mother, for which no explanation has been offered by her at this stage, not only indicate that the relief sought by the father is appropriate but that it is essential if F and E are to be restored to a normal and healthy situation in which the courts, if requested to do so, can determine any issues requiring determination.

20. I am satisfied that the welfare of the children requires that the order sought by the father be made, at least until this Court can hear the mother’s side of the story.  Currently, it appears that the mother has acted contrary to a proper discharge of her parental responsibility for the children and to a very serious degree.  If I am wrong in my assessment, then the mother will have an opportunity to make out her case to that effect, when she participates in proceedings before me.

21. The father has explained to me that he seeks these orders to facilitate the operation of criminal investigations sanctions and laws within Sweden and Europe.  He says that it is not to do with any application on his part pursuant to the 1980 Convention.  That is a matter for him.  However, subject to hearing the mother’s case, as far as the concept of wrongful retention is relevant to the 1980 Convention, the facts of this case indicate that the actions of the mother constitute a wrongful retention of the children within the meaning of Article 3 of the 1980 Convention of the most blatant kind.  Finally, I note in passing that the liaison judges designated for Australia for the International Network of Hague Judges are my Chief Justice and myself.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  11 November 2008