PRENTICE & BELLAS

[2011] FamCA 584

FAMILY COURT OF AUSTRALIA

PRENTICE & BELLAS  [2011] FamCA 584

FAMILY LAW – CHILDREN – Location order

Family Law Act 1975 (Cth)

C v C (1996) FLC 92-651
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Prentice

RESPONDENT:  Ms Bellas

INDEPENDENT CHILDREN’S LAWYER: Ms Sheehy

FILE NUMBER: BRC 11565 of 2009

DATE DELIVERED: 11 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 11 July 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms S Wilkinson (Solicitor) of Best Wilson Family Law

THE RESPONDENT: Ms Bellas appearing on her own behalf

THE INDEPENDENT CHILDREN’S LAWYER: Ms R Sheehy (Solicitor) of Rhonda Sheehy & Associates

Orders

IT IS ORDERED THAT

1. The matter be adjourned for further hearing before his Honour Justice Murphy at a time and on a date to be advised.

2. The mother shall file and serve the originals of the two affidavits attached as Exhibit A and Exhibit B of her affidavit filed 14 June 2011, and in the event that there are no originals, an affidavit shall be filed stating as to why there are no originals and requesting leave to file the copies of the affidavits.

3. Leave is granted to the Independent Children's Lawyer to uplift the DVD, marked as exhibit M1 today, and provide a copy of such to the solicitors for the father.

4. The parties do all such things, sign all such documents, pay equally all such reasonable fees, and attend all appointments as are necessary so as to facilitate a Family Report being prepared by Ms V at the request of the Independent Children's Lawyer and, in particular:

   (a)The father present himself and any significant members of his household to the Counselling Section of the Family Court of Australia, level 3, Commonwealth Law Courts Building, 119 North Quay, Brisbane at 9.00am on Wednesday 10 August 2011 for the purposes of being interviewed for a Family Report by Ms V and remain at the Counselling Section until such time as Ms V has completed the interviews.

   (b)The mother present herself together with the child T Prentice born … July 1996 together with any significant members of her household to the Counselling Section of the Family Court of Australia, level 3, Commonwealth Law Courts Building, 119 North Quay, Brisbane at 10.30am on Wednesday 10 August 2011 for the purposes of being interviewed for a Family Report by Ms V and remain at the Counselling Section until such time as Ms V has completed the interviews.

   (c)The parties co-operate in every respect with any other requirements of the Independent Children's Lawyer to attend upon Ms V for the purposes of interviews for the preparation of the Family Report, now and in the future.

   AND IT IS RESPECTFULLY REQUESTED THAT the Manager, Child Dispute Services, Family Court of Australia, Brisbane Registry, arrange for interview rooms to be made available for Ms V on 10 August 2011.

5. The parties do all such things, sign all such documents, pay equally all such reasonable fees, and attend all appointments as are necessary so as to facilitate a psychiatric report of both the mother and the father being prepared at the request of the Independent Children's Lawyer, by a psychiatrist other than Dr X.

6. The Independent Children’s Lawyer is granted leave to issue subpoenae to:

   (a)The Queensland Police Service in respect of all investigations relating to any criminal activities or alleged criminal activities involving the father and the mother and any adult children of the parties;

   (b)Education Queensland;

   (c)The Department of Communities (Child Safety Services)

   and that unless otherwise ordered, leave is granted to all parties to inspect and to the Independent Children's Lawyer alone to copy documents produced pursuant to such subpoenae, save any document in respect of which objection to either inspection or copying is made, in which case an application is to be brought before Justice Murphy.

7. Leave is granted for the mother to obtain a transcript of today’s proceedings.

IT IS FURTHER ORDERED THAT

1. The Respondent Mother Ms Bellas of … in the State of Queensland, provide to the Registry Manager of this Registry of the Court any information she has or obtains about the location of the child T Prentice born … July 1996 and that she do so forthwith upon the obtaining of any such information.

2. These orders will remain in force until the child attains the age of 18 years or until otherwise ordered.

3. The Registry Manager is permitted to disclose information provided pursuant to these orders to the Independent Children's Lawyer, the solicitors for the father or the Australian Federal Police.

4. There be liberty to apply in respect of the location order and any such further hearing shall be listed before his Honour Justice Murphy if at all possible.

IT IS NOTED that publication of this judgment under the pseudonym Prentice & Bellas 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. These proceedings concern the child T Prentice, born in July 1996.  T has just turned 15.  The current proceedings can be seen to come at the end of what has been, on and off, a 13-year period of litigation. 

2. That period of litigation can conveniently be seen to fall into three groups.  The first group concerns events from, essentially, when the parties separated in April/May 1998 until final parenting orders were made by the initial trial Judge 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. 

3. In the course of the approximate three years that this matter was in the Court prior to those orders being made, a plethora of allegations were made in respect of the children.  They included that the children K and S, were sexually abused by the father. 

4. The children were interviewed by the police.  Their disclosures at that time were retracted by each of them.  On 5 July 1999, two other children, H and Y, disclosed that there was satanic ritualistic abuse at the hands of their father.  Some, at least, of those allegations were subsequently retracted by H and Y.  During the latter part of 1999, the police and the Department of Families conducted investigations.  At that time, an anal tear on K was allegedly found.  Also at that time, S again retracted earlier statements made by her. 

5. Issues relating to the mother’s mental health were raised at that time, principally by Dr X, who had been involved with the family as a treating psychiatrist for at least some of the children. 

6. On 20 October 1999, final consent orders were made that the children live with the father and that future contact between the children and their mother was to be agreed upon.  A further order was made by consent at that time that the mother receive treatment from Dr X.  Within a month of those consent orders being made, the mother had ceased attending upon Dr X. 

7. In January 2000, it appears the mother engaged a private investigator so as to allow her children Y and H to undergo lie detector tests.  The mother also asserts that, early in 2001, the children E and Y were used as a “sting” on a television program about the supply of pornographic videos to underage children. (The full details of this allegation were not explored at the interim hearing before me.)

8. In November of 2001, a further child of the mother, E, allegedly disclosed alleged past sexual abuse of him by the father and alleged sexual abuse of all of the children and other members of the family. That abuse is said to have occurred at a time when satanic chanting was also taking place. 

9. The concerns were reported to the police.  The allegations were not substantiated by the police.  No criminal charges were or have been laid by the police as against the father. 

10. Shortly prior to the final trial before the initial trial Judge, in the middle of 2002, K and S were interviewed by representatives of the Department of Families in respect of the allegations made concerning them by E.  The children made no allegations of any inappropriate behaviour to the department at that time.

11. Reference to the Judge’s reasons on 21 June 2002 makes it plain that reliance was placed by the Judge upon numerous opinions provided by Dr X.  As will be seen, Dr X and, indeed the Judge, are the subject of allegations subsequently made against each of them. 

12. It is of some significance to note that Dr X’s opinion given at that time was consistent with psychiatric opinions given by Professor N and Dr L that the mother suffered from a borderline personality disorder.  It was said, for example:

    Whether her belief that her children have been sexually abused by [the father] is part of a delusional disorder or a deeply held conviction is immaterial.  The statements by [[E]], now that he is living with his mother, indicate that [the mother] is still firmly fixated on the idea that her children have been abused.  She has only seen her children on three occasions in the last two and a half years.  Around the same time that she first saw them after a break of two years, her oldest child made a statement to the police and the Department of Families reiterating her earlier concerns.  At the second visit, she took [H] and [Y] in contravention of Family Court orders, and a woman whom [S] saw abuse her father.  She went on to question [S] and possibly [K] about whether their father had been abusive of them. … As a result of [E’s] allegations, police and Family Services officers once again interviewed [K] and [S].

    (Paragraph 75, Reasons for Judgment, 21 June 2002)

13. As referred to, the Judge made orders to the effect that all of the children live with the father and that they spend supervised time with their mother on four occasions each year. 

14. There is then a gap in the litigation history of about seven years or so until towards the end of 2009. 

15. At that time, the W contact centre suspended visits at that centre between the mother and the children.  There were concerns expressed by members of the staff at that time relating to events that allegedly occurred during those visits. 

16. Approximately a month thereafter, the mother removed the child from his school in W.  Those events (of 29 October 2009) precipitated the father filing an application for a recovery order in this Court.  On 20 January 2010, a Judge made a recovery order in respect of the child, and two days later, the child was returned to his care after intervention by the Australian Federal Police removing him from his mother’s care.

17. There things stayed until what might be seen as the third phase of the chronological history of this matter, which commences in February of this year. 

18. On 4 February, the child went missing from his father’s residence during the night.  Within a fortnight, the father filed an application for urgent recovery orders in the local Magistrates Court.  That application was heard ex parte, and a recovery order was made.  It seems that despite attempts being made by the relevant police services, that order was not successful in recovering the child. 

19. On 27 May 2011, the father filed an application seeking a publication order and a location order, again in the local Magistrates Court.  The Magistrate made an order pursuant to section 121(9)(a) of the Act, but no location order was made at that time.

20. It is not apparent from any reasons on the file – or indeed any submissions made on behalf of the father – as to why a location order was not made.  It appears likely that it was an oversight. 

21. On 14 June 2011, the mother, ostensibly in response to the applications filed by the father, filed proceedings both in the local Magistrates Court and in the Federal Magistrates Court.  Two Applications in a Case and supporting affidavits were filed in those respective Courts at that time.  It seems clear that the applications seek, in substantive effect, the same relief. 

22. Ultimately, the local Magistrates Court transferred the matter to the Federal Magistrates Court.  On 16 June 2011, Howard FM made an order transferring the matter to the Family Court of Australia and for the appointment of an Independent Children’s Lawyer.

23. This matter has, then, been listed urgently before me today.  The application currently before the Court, is an application by the father for a location order in terms of that sought by him initially in the local Magistrates Court. 

24. The mother, for her part, seeks a number of orders.  The effect of them, on both an interim and final basis, is that all previous orders be discharged, that the child be returned to her full-time care and that the father spend no time with him. 

25. She also sought an order that a DVD be received into evidence.  The mother was asked to explain what that DVD contained, which she did.  I permitted the mother to tender that DVD.  It is said to contain, among other things apparently, statements made by the child of direct concern to his welfare and best interests.

26. The mother says that the Court should view and listen to that “evidence” prior to considering or making any location order.  I refuse to do so. 

27. The reason for doing so is, or should be, plain from the appalling history relating to these children over a very lengthy period of time and the reiteration of allegations made numerous times and investigated numerous times in the past.  I have, however, made orders that the Independent Children’s Lawyer have leave to uplift the DVD and to make copies for each of herself and for the solicitors for the husband. 

28. It will be apparent from the broad overview earlier given that this is the second occasion upon which the Court has been moved to make a recovery order by the father. 

29. The mother adamantly says that she does not know where the child is. But, she says she has spoken to him, and, I gather, seen him on a couple of occasions.

30. The Independent Children’s Lawyer and the father through his solicitor submit that it is extremely unlikely that the mother does not know the child’s current whereabouts.  Within the context of these interim proceedings where no cross-examination has occurred and evidence is therefore being considered within a truncated process, it is not appropriate for the Court to make any specific findings in respect of that issue.  

31. However, given the very lengthy history of this matter, the allegations earlier referred to, and the repetition of those allegations over a long period of time, the fact that allegations have in the past been investigated by the Department of Families and the police and no action has been taken so as to interfere in the relationship between the father and the child, it is, in my view, appropriate to support the recovery order earlier made with an order made pursuant to section 67M of the Act with respect to the child’s location.

32. The only real opposition advanced by the mother in that respect relates to, firstly, the allegations that she says are both true and which continue to be made by the child (insofar as that is relevant to the instant application with all of the strictures applicable to it referred to in numerous cases in this Court, including, for example, C & C).

33. It seems to me that the history of the matter and the circumstances in which the child was removed from his father’s care in early 2010 and has gone missing from his father’s care in February 2011 point in favour of the location order being made.  In that respect, it is, in my view, important to note what is said about the child’s intellectual and other disabilities.  He suffers, it seems, from a number of conditions, including oppositional defiance disorder and attention deficit hyperactivity disorder.

34. Given the history of this matter, it would hardly be surprising that he is a troubled boy, and that is a matter that also, in my view, weighs in favour of the location order being made.  The fact of the matter is that both the father and the mother, on her account, don’t know where a barely 15 year old boy is currently residing.  That is in itself, in my view (in circumstances where previous orders have been made and previous hearings have occurred in respect of the child) almost sufficient to make a location order, given that the relevant child’s best interests is the criteria for the making of any such order.

35. The making of that order, and the further conduct of the proceedings emanating from an application by the mother that orders be made that would return the child to her care and that he spend no time with the father, need to be seen against a number of allegations which the mother puts before the Court as being matters very significant to the determination of these proceedings and the child’s best interests.

36. I have previously mentioned that a Judge heard the trial of this matter in June 2002 and that Dr X was the psychiatrist who provided evidence to the Court in those proceedings.  It ought be noted that, in doing so, he was providing evidence as a treating psychiatrist, at least of the children at that time, as distinct from, for example, being a psychiatrist appointed solely for the purposes of providing a report on instructions from the independent children’s lawyer or a party. 

37. It might also be reiterated that other psychiatric evidence was before the Judge when the Judge made those orders. 

38. The mother appears to rely upon a number of allegations made by an adult child in respect of the Judge, Dr X, the Department of Families, the police and, indeed, a number of other public institutions.  Some examples will suffice.

39. It is alleged that the father paid Dr X a bribe.  It is secondly alleged that the Judge had sexual intercourse with Dr X.  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 a second home of Dr X (which, it is said, exists unbeknown to Dr X’s (alleged) spouse and children) at which that sexual intercourse took place. 

40. 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 of Families have not complied with their statutory responsibilities in an appropriate way.

41. It is also asserted as follows, and here I quote from the affidavit of the mother:

    It is clear from my prolonged and extensive experience that no court exercising jurisdiction in family law in Queensland will act to protect children from abuse of the most horrendous kinds.  It is clear that the Queensland Department of Child Safety will quite usually aid and abet child abusers and victimise honest, decent parents.  It is also clear that Queensland Police will not investigate these matters and will victimise informants.  The above evidence was given to them – the day before they shut the Morcombe inquiry down with a timing clearly designed to prevent this evidence from being heard in that inquiry and with the clearly false assertion that in the last 39 years, only five children remain “missing” in Queensland.  My children – still quite young adults know of at least 10 children and others who have been murdered by [the father] and some of his associates.

42. It will be seen, then, that the mother through, I gather, one or more of her children alleges that the father has, either himself or with others, been responsible for 10 child homicides in this State. 

43. That assertion is given further context by an assertion made earlier in the affidavit of the mother.  She deposes at paragraph 6:

    There is also clear and unequivocal evidence from one of my adult children that [the father] and a known associate of his, left one morning, taking with them guns and returning that evening with blood all over their shirts. [The father’s] associate then 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 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.”

1. It seems plain, then, that at least one of the adult children of the mother accuses the father, (it seems, in conjunction with someone else) of perpetrating Daniel Morcombe’s murder. 

2. It also seems clear from the affidavit that the mother asserts that the police have “shut the Morcombe Inquiry down”, and not only that it has been shut down but that it has been done so “with a timing clearly designed to prevent this evidence from being heard in that Inquiry”. 

3. The seriousness of all of these various allegations cannot, of course, be overstated. 

4. Those matters provide, as it seems to me, a significant background to the issues currently before the Court and reinforce my determination that a location order is an order properly made in the best interests of the child, and I so order.

5. The mother, then, would have a trial of the parenting issues in relation to the child take place.  A possibility canvassed in submissions by the solicitor for the father is that no such trial should take place, because in effect, these same issues, or issues very similar to them, have been made more than once in the past and have been determined, at least in part, by an earlier Court.

6. An issue might be seen to arise either directly related to, or akin to, the so-called rule in Rice & Asplund.  An issue which arises from that is whether, in the best interests of this child, a trial should be permitted if it emerged circumstances were such that the current trial could be seen as only in respect of issues that had earlier been agitated and determined by the Court.

7. To that end, questions were asked of the solicitor for the father as to whether there should be a separate hearing or an initial hearing so as to deal with any issues relating from the potential application of that rule.  

8. Ms Sheehy, who appears as the Independent Children’s Lawyer, says that there should be a trial, in any event, given the extreme seriousness of the allegations made by the mother and the fact that the proceedings in respect of which relevant determinations were made occurred now some nine years ago, when, of course, the child was significantly younger than he is now.  Further, he is now, 15, an age when the full picture as to his views, (and his emotional, psychological and psychiatric health) should be before the Court.

9. I think there is merit in what the Independent Children’s Lawyer says in that respect. 

10. I can understand that the father might be troubled by the notion of re-agitating issues that have, as I have said, spanned on and off now some 13 years.  Nevertheless, it seems to me that a significant period of time has passed since the issues were earlier agitated.  The children and sibling groupings were of different ages and at different stages in their development, and there is now at least allegations of what a 15 year old child – who is, it seems, somewhat troubled and affected by at least some disorders – is alleged to be saying to one person or another. 

11. In those circumstances, unfortunate though it might be for the parties, and unfortunate though it might be for the vicarious effect it might have upon the children, it seems to me that such a trial should take place.

12. In those circumstances, then, I consider it appropriate to make a number of determinations to have this trial heard and determined as soon as possible.  In the first instance, it seems to me important that a report be received from a properly trained professional who has had the opportunity to speak to the parties and obviously, if it is possible, the child, with a view to properly outlining the issues for determination in the Court and providing all such opinions as might be helpful in determining the matters which the statute requires need to be determined in respect of parenting applications.

13. In that respect, the Independent Children’s Lawyer proposes orders that Ms V prepare a family report and provides procedural orders to that effect. 

14. The mother says that she would prefer to find a person of her own in order to do that report.  The mother needs to know – indeed, all parties in this Court need to know – that no particular witness, or group of witnesses has any particular kudos or position in the Court.  Having said that, it is important that the Court knows that those who are providing expert reports to the Court in parenting cases, and in particular in parenting cases where the allegations are of the type, nature and extent of those evident in this case, should do so in an independent way. 

15. In those circumstances, it seems to me appropriate that Ms V, who has extensive experience both as a former employee of this Court as a family consultant and extensive experience as a private practitioner, prepare a report as the Independent Children’s Lawyer contends.

16. The Independent Children’s Lawyer also suggests that it is appropriate for her to obtain a psychiatric report in respect of each of the parties and, indeed, upon his location, the child.  The mother says that she has no objection to that course. 

17. It seems to me likely that Dr X will be a witness of credit in these proceedings.  Very serious allegations of impropriety have been made against Dr X. 

18. The mother seeks to assert that this allegation is made not by her, but by K.  But, she makes it by repeating and relying upon it. She puts it forward as a matter that should be taken into account by the Court in the overall determination of these proceedings. 

19. It is, of course, in those circumstances, abundantly plain that Dr X should not be the psychiatrist who provides any new report in respect of the parties or child in this matter.

20. An application is made for the issue of subpoenae. Having listened to arguments in support of their potential relevance to the issues in these proceedings, it seems appropriate that they issue. They do not appear to be a fishing exercise.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 11 July 2011.

Associate: 

Date:  25 July 2011