Prentice and Bellas (No. 2)

[2012] FamCA 390

FAMILY COURT OF AUSTRALIA

PRENTICE & BELLAS (NO. 2) [2012] FamCA 390

FAMILY LAW – CHILDREN – where the litigation of the parenting dispute between the parties spans 13 years – where final parenting orders were made giving the father sole responsibility for the parties’ child, who is now aged 16 years – where there are no orders for time between the mother and the child – where the father filed a recovery application after the child was taken by the mother into her care in April – where the mother has made significant allegations of abuse of the child (and other children) by the father – where the mother has also made significant allegations of impropriety by justices of the Family Court – where the Department of Communities, Child Safety and Disability Services has had significant involvement in the lives of the mother and her children, including the child the subject of these proceedings – where the Department has significant concerns regarding the child’s wellbeing whilst in his mother’s care – where orders made facilitating the return of the child into the father’s care.

Family Law Act 1975 (Cth)

APPLICANT: Mr Prentice

RESPONDENT: Ms Bellas

FILE NUMBER: BRC 11565 of 2009

DATE DELIVERED: 21 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 21 May 2012

REPRESENTATION

THE APPLICANT: Mr Prentice in person

THE RESPONDENT: Ms Bellas in person

Orders

IT IS ORDERED THAT

1. The mother shall deliver the child T Prentice born … July 1996 (male) (“the child”) to the Department of Communities, Child Safety and Disability Services at … in the State of Queensland by 4.00pm on 23 May 2012.

2. The father shall, as soon as practicable after 4.00pm on 23 May 2012, file and serve an affidavit deposing as to whether the child has been delivered in accordance with paragraph one above.

3. Should the mother not return the child as ordered in paragraph one above:

   a.A Recovery Order shall issue forthwith addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

   b.A Publication Order shall issue granting leave to publish or broadcast a report of these proceedings.

IT IS DIRECTED THAT

1. The Marshal of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Family Law Act 1975 (Cth) (“the Act”) revealed by the material specified in the succeeding paragraphs of these Orders is investigated fully and, if appropriate, thereafter prosecuted.

IT IS RESPECTFULLY REQUESTED THAT

1. In addition to the request made in orders dated 24 February 2012, the Commissioner of the Queensland Police Service take all such further steps as might be reasonably required to investigate whether any offence or offences, including but not limited to kidnapping of the child T Prentice born … July 1996, have been committed by:

   a.Ms Bellas; and/or

   b.Any other person.

   on or after 30 March 2012.

2. In addition, the Commissioner of the Australian Federal Police take all such steps as might be reasonably required to investigate whether any offence or offences, including but not limited to the indictable offence prescribed by s 121 of the Act in respect of proceedings involving or related to the child T Prentice born … July 1996, have been committed by:

   a.   Ms Bellas; and/or

   b.   Any other person

   on or after 30 March 2012.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 121(9)(g) of the Act, an account of these proceedings, namely:

   a.    The affidavit of Mr Prentice filed 1 May 2012;

   b.    The affidavit of Mr Prentice filed 21 May 2012;

   c.    These orders;

   d.    The Reasons for Judgment delivered today;

   e.    A Transcript of the proceedings of today;

   be approved for publication to the Commissioner of the Queensland Police Service; the Commissioner of the Australian Federal Police and all such police officers and persons as each might reasonably permit or authorise.

2. The documents referred to at subparagraphs 7(c), (d) and (e) of these Orders be sent by post by an officer of this Court to the Respondent at the address notified as her Address for Service.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Prentice & Bellas (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11565 of 2009

Mr Prentice

Applicant

And

Ms Bellas

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In an Application in a Case filed by the father on 1 May 2012, he seeks yet another recovery order in respect of the child T Prentice, born in July 1996. 

2. I use the expression “yet another” because, as I have indicated in reasons published on 11 July 2011, this is yet the latest chapter in a period of litigation that has been occurring on and off for some 13 years.  I said there, and repeat for the purposes of these reasons, that this period of litigation can be conveniently seen to fall into three groups. 

3. The first group concerns events from, essentially, when the parties separated in April-May 1998 until final parenting orders were made on 21 June 2002.  Those orders prescribed that all of the then children live with the father and spend supervised time with their mother on four occasions each year. 

4. It will be observed that this trial, in respect of four children took place now almost 10 years ago. It is to be noted that, in the proceedings before the initial trial Judge, a plethora of allegations were made in respect of the children, which included that the children K and S were sexually abused by the father. 

5. These reasons should be seen in conjunction with those reasons delivered by me on 11 July 2011 and the reasons delivered by me subsequently on 24 February 2012.  In order to give these reasons and the orders I am about to make some context, it is important, I think, to refer to at least some of the matters that were raised and dealt with by me in the July 2011 proceedings. 

6. For example, when the Judge heard the initial trial of this matter in June 2002, evidence was received from Dr X, who is a psychiatrist.  Dr X provided evidence, it should be noted, as a treating psychiatrist of the children at that time.

7. Rather disturbingly, it might be thought, in light of what Dr X, the then children’s treating psychiatrist, said about them at that time, the mother, in the proceedings in July 2011, sought to rely upon a number of allegations made by an adult child in respect of the initial trial Judge, Dr X and the Department of Communities, Child Safety and Disability Services (“the Department) (as well as the police and a number of other public institutions).  I exemplified some of those allegations then and it is important, I think, that I do so again.

8. The mother alleges that the father paid Dr X (who, I reiterate, was the children’s treating psychiatrist) a bribe.  Secondly, she alleges that the Judge had sexual intercourse with Dr X. 

9. Not only is it alleged that the Judge had sexual intercourse with Dr X, but apparently the child making the allegation also alleges that he himself witnessed that sexual intercourse and described, in the course of so relating, an (alleged) second home of Dr X (which it is said exists unbeknown to Dr X’s (alleged) spouse and (alleged) children).  It is alleged that this home is where the alleged sexual intercourse took place.

10. It is also asserted that other judges (described generally as such) are corrupt, that the police (described generally as such) are corrupt and that the Department has not complied with their statutory responsibilities in an appropriate way. 

11. Against that background, it is interesting that the mother also alleges that Ms Z, a child care officer with the Department of Communities, Child Safety and Disability Services who gave evidence before me today is also “corrupt”.  She is said to be “corrupt” because she tells lies. I requested Ms Z to give evidence by telephone during the course of the proceedings today which she willingly did. I will refer to the specifics of that evidence in a moment. 

12. The mother today refers to a “class action”. It is said that a number of people are “suing the Department of Family Services” in respect of, presumably, the same corruption as just referred to. 

13. To further complete the picture against which the current action by the mother, or those acting on her behalf, and the father’s application are brought, I should record that, in the proceedings in July 2011, the mother, or those acting with her or through her, alleged that the father has either himself or with others been responsible for ten child homicides in this State.

14. Again, it seems that the “informant” for that allegation is one of the mother’s adult children. 

15. Again, it might be observed that those adult children were the subject of psychiatric assessment some years ago by Dr X. 

16. The mother asserted in the proceedings before me in July 2011 that there was “clear and unequivocal evidence from one of my adult children” that the father and a known associate of his left one morning with guns, returning that evening with blood all over their shirts.  It is then said that the father’s associate showed this witness a photograph of Daniel Morcombe’s body with blood all over the sides of his neck from a gunshot wound to the back of his head.  When asked how he was so certain that the photograph was of Daniel Morcombe, he responded with words to the effect of “his (Daniel’s) face was all over the television that day because he had gone missing”. 

17. Of course, if this “evidence” is accepted, then the police have charged the wrong person with Daniel Morcombe’s death.

18. On 24 February 2012, at a time subsequent to the child T’s return to the father’s care, through what is alleged to be his own actions, I referred in some detail to an offensive website and other matters including the involvement of the mother and others in an interchange with a television reporter.  The father’s application was dismissed as being beyond the power of this court.

19. In orders made that day, I directed that the marshal of this court take all steps as might be required so as to ensure that any breach of section 121 as revealed by the evidence before me be investigated fully and, if appropriate, thereafter prosecuted.

20. I also issued a specific request to the Commissioner of the Queensland Police Service that there be an investigation as to whether any offence or offences, including but not limited to kidnapping of T, be fully investigated and, if appropriate, prosecuted.  I issued a similar specific request to the Commissioner of the Australian Federal Police.  I propose to issue similar requests in relation to the orders that I will make today. 

21. In order to give support to those orders, I will also make an order pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth) (“the Act”), as I did on the last occasion.

22. I indicated earlier that Ms Z had given oral evidence.  That arose because the father annexed to an affidavit, a document under the hand of “[Ms A], Team Leader, … Child Safety Service Centre”.  In that document, there was an invitation to obtain further information from the relevant child safety officer, Ms Z, by telephone. 

23. The husband deposed in the affidavit to which that document was annexed that Ms A had “asked me to respectfully request of this honourable Court that her child safety officer, Ms [Z], be allowed leave to give evidence at the hearing on May 21 in respect of this matter and to further ventilate and detail the concerns of the Department…”

24. As I indicated at the time, reference to the underlying legislative intention, evident, in my view, in section 69ZW of the Act, the specific mandatory principles referred to in section 69 ZN of the Act, and the provisions of Division 12A more generally, all point to it being both appropriate and important for that evidence to be received.

25. First, though, it is necessary to refer to passages from the letter annexed to the affidavit of the husband from the Department to which I have referred. The document sets out some of the background to which I have made reference in earlier proceedings, not least of which is that:

    [The child T’s] father has had full legal custody of [the child] since 1998 and that since then [the child] and his older siblings were permitted supervised contact only with their mother, [Ms Bellas].  The Department is also aware that [the child] has significant learning and behavioural issues and that he requires a high degree of supervision and care.

26. The document goes on to record that there have been three child protection notifications since March 2010.  (As will be evident from what I have already said, this matter has a very lengthy history within the Department.)  The document records that:

    … since 1998, there have been 28 reports recorded by the Department in relation to [the child’s] wellbeing, with [the mother] identified as being responsible for causing harm on those occasions the Department has had reason to investigate.  [The child] has been interviewed on several occasions by departmental officers and by officers of the Child Protection Investigation Unit with no evidence found that [the father] has been responsible for causing him harm.  The Department’s view is that [the father] is a suitable person to care for [the child] and supports [the father’s] application to have [the child] returned to his rightful care.

27. As I have already mentioned, T returned to his father’s care apparently voluntarily, after a significant period of time in which he was secreted from him. 

28. There had been earlier attempts to recover the child through the formal processes of this Court.  Again, my reasons of 11 July 2011 and 24 February 2012 refer. 

29. In respect of that more recent history, the document from the Department records:

    Almost 12 months later in February 2011, a notification was recorded in relation to concerns about [the child’s] safety after he left his father’s care and was thought to be in [the mother’s] care again.  [The mother] repeatedly denied having [the child] in her care and hindered the Department’s investigation, such that the Department was unable to locate [the child].  Believed to have been in [the mother’s] care for the nine months, his whereabouts was unknown to [the father], his family and authorities seeking to locate him.  On 9 November 2011, [the child] of his own volition returned to his father’s care.

30. The document goes on to record:

    Approximately five months later on 3 April 2012, the Department recorded the current notification when advised that [the child] had once again returned to [the mother’s] care.  The Department attended [the mother’s] home on two occasions in an attempt to locate and speak with [the child], but were unable to do so.  [The mother] has not been prepared to speak with the Department in relation to the current notification.

31. Ms Z in her oral evidence affirmed those matters to which reference has just been made.  In addition, Ms Z indicated that the mother had been invited to bring the child in to the Department for a discussion, but she had refused to do so. 

32. Significantly, as it seems to me, Ms Z was of the view that, even had that occurred, she thought it likely (based on prior investigations and the history of this matter) that the child would likely say he was happy to stay in his mother’s care. 

33. The opinion of the Department, it should be noted, is that the child should return to his father’s care despite his expressed view in that respect.  That opinion might, with respect, be seen to accord entirely with the view of this court, and with all of the expert evidence which has been before the Court now for a significant period of time.

34. Ms Z indicated that the Department was profoundly concerned that, during the nine months that the child had been removed from his father’s care there was no evidence to suggest that the child had attended school anywhere. 

35. That is of particular concern because, as the father deposes in his affidavit:

    [The child] is slightly retarded and has a mental age at least four years below his physical age.  He’s assessed as having a “level 6 impairment” by the Education Department, hence his attendance at special classes.

36. Very importantly, as it seems to me, Ms Z said that the Department’s concern was also based upon the fact that “the father and the school” had “worked very hard” with the child in order to address the learning difficulties which he plainly has. 

37. It might be observed that the current actions by which the child was removed from his school have yet again interrupted that progress.  In that latter respect, the father deposes:

    On March 30, 2012, staff from [the School] ... advised me by telephone message that there had been “trouble” at the school involving [the child] and visitors to the school.  [The child] was not in attendance at the school that day as he is enrolled in special education classes and presently attends only two days per week.  I found this message somewhat incongruous under these circumstances.

38. The father goes on to depose:

    I have subsequently learned from the school that [Mr B] and [H Bellas], the latter a son from the first marriage of [the mother], and understood to be living in residence with her, had attended.  I was told that they had acted aggressively towards the headmaster and staff of the school and sought to verbally defame me and lodge documents of a heinous and defamatory nature, making accusations against myself.  The material was apparently similar to that previously tendered by these parties in evidence before this Honourable Court in the [Prentice/Bellas] matter.  They then proceeded to the Education Department, … Regional Office, where they once again made further such verbal allegations against me supported by the same written material.

39. The father goes on to depose that the next morning he became aware that the child was missing from his residence; “It appeared that he had walked out in the early hours of the morning”.

40. Ms Z refers to discussions that had taken place between the Department and the father.  The father also refers to these discussions in his affidavit.  He says:

    I was advised that the Department had resolved to remove [the child] from his mother’s care.  On April 19, child safety services advised that [the mother] had been instructed by them that she had until Monday, April 23, to surrender [the child].  I’m advised that she was also told that [the child] would be required to either return to my custody or be placed in foster care.  The deadline passed and [the child] remained in residence with his mother.

41. The discussions with the Department have seen cooperative decisions designed to effect the best outcome for the child and to prevent him being removed from his father’s care. 

42. I canvassed some of those options with Ms Z primarily, of course, because if the Department was intending to take its own action, the jurisdiction of this Court would be curtailed if orders were made. 

43. Moreover, I canvassed the possibility that the Department might have available to them other “remedies”, and a wider range of day‑to‑day powers, so as to best facilitate the best outcome for the child. 

44. In having those discussions, I was not in any way suggesting that the Department should, or should not, behave in a particular way.  Rather, those discussions were held in the context of attempting to arrive at a set of outcomes that might best promote the child’s best interests.  I consider that orders of this Court and cooperation between the father and the Department as has been occurring, represents the best potential outcome for the child.

1. For present purposes, there is no impediment to this Court making the orders sought by the father by reason of any action/s proposed by the Department. 

2. It seems to me entirely appropriate that I ought make an order designed to facilitate the return of the child to his father’s care. 

3. In terms, the father seeks a recovery order in the usual terms.  As I canvassed with Ms Z during the course of oral evidence, it is undesirable, at least in the first instance, if the Federal Police are to effect that, if an alternative is available.  I have some considerable reservations as to whether any opportunity afforded to the mother to present the child voluntarily will be given effect.  However, in his best interests, it seems to be entirely appropriate that I should order in the first instance that he be presented by the mother prior to a recovery order issuing. 

4. In that respect, I canvassed with Ms Z whether, given the Department’s erstwhile involvement with the child and with his family more broadly, it would be appropriate if that opportunity was available to the mother so as to present the child at the Office of the Department, and she indicated both that she considered it appropriate, and that the Department would be willing for that to occur.

5. During the course of the proceedings today, the mother was observed to be under considerable stress.  Indeed, ultimately, she left the court room.

6. The evidence before the Court, now stretching over many years, gives rise to some concern about the mother’s day‑to‑day mental health.  To all intents and purposes, however, despite some histrionic behaviour and other idiosyncrasies, to my lay observation she appeared to be capable of conducting the proceedings on her own behalf and, in fact, did so. 

7. However, given that Ms Z gave the evidence in the manner to which I have just referred, and the fact that the report from the Department had only been received by the mother that morning, I gave consideration to two things.

8. The first was to adjourn the proceedings so as to permit the mother to, as it were, “take on board” those matters contained in the report.  I did not do so because, as I said at the time, it seemed to me that the report from the Department was, effectively, historical and the matters within it were well within the knowledge of the mother.  I was not prepared to countenance any further delay in having the child returned to his father’s care than what was unavoidable or otherwise necessary. 

9. Having asked Ms Z to give oral evidence in the proceedings, I determined whether I should permit either of the parties to cross‑examine her.  I decided that I would not permit either party to do so.

10. First, these proceedings are in the nature of urgent interim proceedings and the circumstances of them have a very significant history.  Secondly, I was primarily concerned to find out from the Department its present attitude and whether the Department through Ms Z had any information in the child’s best interests that could be provided to the Court.  It was plain from what had fallen from the mother prior to the receipt of the document from the Department and the calling of Ms Z that any such questions that the mother would ask of Ms Z were directed towards issues such as her being “corrupt” and, indeed, would be seen to be part of the broader issue of conspiracy and corruption to which I have earlier referred.

11. Further, and in any event, the nature of the proceedings are such and the evidence from Ms Z is such that such questions as might be asked of her that might relate to significant factual matters are matters that can not be determined by me in the context of these truncated interim proceedings. 

12. Accordingly, I determined that neither party ought cross‑examine Ms Z and, indeed, I asked her very few questions myself, confining her evidence as best I could to the matters to which I have earlier referred. 

13. In all of the circumstances of this care, it is entirely appropriate that steps be taken to recover the child and to place him back into his father’s care and I will order accordingly as follows.

14. I shall in the first instance order that this take place by the mother producing the child T to the Department of Communities, Child Safety and Disability Services, by not later than 4.00pm on Wednesday, 23 May 2012.  In the event that the mother does not produce the child to the Department by that time on that day, I make a recovery order in the usual terms for his recovery.

15. The father seeks what might be conveniently described as a publication order so as to permit newspaper periodical or radio or television broadcast of the details necessary to recover the child.  Ordinarily, I would have some concerns about making such an order were this the first occasion upon which the Court was moved to issue a recovery order.  The reasons for that are, I think, self-evident and that those orders should be made only as a last resort so as to attempt to ensure that matters deeply personal to children and to conflict around children are not aired in the public arena.  However, in these circumstances and in the particular circumstances detailed at some length in my judgment of 24 February 2012, I consider that “publication order” appropriate and I intend to make it should the mother not return the child as ordered.  I make it clear that that order will extend to the publication of a photograph of the child.

16. Paragraphs 8 and 9 of the Application in a Case filed by the father on 1 May fall foul of the same principles referred to in my decision of 24 February 2012, namely, the Court does not have the power to make the orders there referred to, save to the extent that any actions by them constitute breaches of section 121(9)(g) of the Act. The actions in and about the child coming into the care of the mother may involve those circumstances. I consider it appropriate, then, to make an order in terms of that made by me at paragraph 4 of the orders of 24 February 2012.

17. It seems to me it is highly appropriate in the circumstances of this case that I make orders in the form of a respectful request to each of the Commissioner of the Queensland Police Service and the Commissioner of the Australian Federal Police in terms of paragraphs 5 and 6 of the orders made by me on 24 February 2012.  Those orders are designed to request each of those police services to investigate whether any criminal offence has been committed by the mother and/or others acting by, with or through her in connection with the child coming into the care of the mother or others on or after 30 March 2012.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 21 May 2012.

Associate: 

Date:  29 May 2012