Rader and Rader & Ors (No. 2)

[2019] FamCAFC 227

FAMILY COURT OF AUSTRALIA

RADER & RADER AND ORS (NO. 2) [2019] FamCAFC 227

FAMILY LAW – APPEAL – INTERIM PARENTING – Parenting arrangements – Where children were placed in the care of their maternal grandparents – Assessment of risk – Where a recovery order should not have been sought or granted –Where the father was denied procedural fairness by not being afforded the opportunity to meet the ICL’s proposal that the children live with the maternal grandparents – Appeal allowed and orders set aside – Where the best interests of the children are served by them returning to live with the father until the rehearing, subject to the conditions recommended by the single expert – Where the father is to have parental responsibility – Where no orders are made for time with the mother – Costs certificates ordered for the appellant and respondents for the appeal and the rehearing of the matter – No costs certificates ordered for the ICL.

Family Law Act 1975(Cth) ss 62B, 65DA(2) 68L(2)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Rader & Rader (No.4) [2019] FCCA 2826
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

APPELLANT: Mr Rader

FIRST RESPONDENT: Ms Rader

SECOND RESPONDENT: Mr Haines

THIRD RESPONDENT: Ms Haines

INDEPENDENT CHILDREN’S LAWYER: Morton Family Lawyers

FILE NUMBER: SYC 1641 of 2019

APPEAL NUMBER: EA 99 of 2019

DATE DELIVERED: 21 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan, Aldridge & Watts JJ

HEARING DATE: 15 & 21 November 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 13 September 2019

LOWER COURT MNC: [2019] FCCA 2825
[2019] FCCA 2826

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Gillies SC with Ms Reid

SOLICITOR FOR THE APPELLANT: Lander & Rogers

COUNSEL FOR THE FIRST RESPONDENT: Dr Barnett

SOLICITOR FOR THE FIRST RESPONDENT: Bowral Legal

SECOND RESPONDENT In person

THIRD RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Dura

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Morton Family Lawyers

Orders

1. The appeal be allowed.

2. Orders 1-13 made on 13 September 2019, as amended on 16 September 2019 be set aside.

3. Orders 1-7 made ex parte on 13 September 2019 be set aside.

4. The matter be remitted to the Federal Circuit Court of Australia to be reheard by a judge other than the primary judge.

5. The documents produced by Ms F are not to be inspected.

6. The documents produced by Psychologists C are not to be further inspected.

7. Ms Morton is removed as the Independent Children’s Lawyer and is to file a Notice of Ceasing to Act within seven (7) days.

8. There be no order as to costs.

9. The Legal Aid Commission of New South Wales is requested to provide a replacement Independent Children’s Lawyer pursuant to s 68L(2) of the Family Law Act 1975 (Cth) as soon as possible.

10. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

11. The Court grants to the first respondent, second respondent and third respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent, second respondent and third respondent in respect of the costs incurred by the respondents in relation to the appeal.

12. The Court grants to the appellant, first respondent, second respondent and third respondent a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant, first respondent, second respondent and third respondent in respect of the costs incurred by them in relation to the rehearing ordered.

13. The Independent Children’s Lawyer’s application for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

PENDING FURTHER ORDER, IT IS ORDERED:

1. That the children X born 2005 (“X”) and Y born 2006 (“Y”) (collectively “the children”) live with the father.

2. That the father have sole parental responsibility for the children.

3. That the father or his nominee collect X at the conclusion of school today.

4. That there be no order for time with the mother.

5. That the children remain enrolled in their current schools, and the father and mother do all actions and things necessary to cause the children to be enrolled in those schools for the 2020 school year.

6. That the father, mother and the children engage in family therapy with Ms F and for that purpose, the costs of the therapy shall be shared equally between the father and the mother.

7. That Ms F provide any recommendations for the progress and further conduct of therapy, and in particular any proposed plan for the children to come into contact with the mother, in writing to the Court for consideration by the Court and the parties, prior to any contact between the children and the mother taking place.

8. That unless otherwise ordered by the Court, the mother, father, second and third respondents be and hereby are restrained by injunction from discussing with the children or in their presence or hearing:

   (a)the family law proceedings, including any affidavit or application filed by any party;

   (b)the contents of Dr B’s report and/or his recommendations;

   (c)the evidence in the ADVO proceedings and/or any proceedings relating to breaches of the ADVO; and

   (d)any correspondence between the parties to these proceedings.

9. That the father, mother, second and third respondents be and hereby are restrained by injunction from denigrating the other parties and/or their family in the presence or hearing of the children and shall immediately remove the children from the presence of any third party who does so.

10. That pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

11. That pursuant to s 65DA(2) Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rader and Rader and Ors (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 99 of 2019
File Number: SYC 1641 of 2019

Mr Rader

Appellant

and

Ms Rader

Respondent

and

Mr Haines
Second Respondent

and

Ms Haines
Third Respondent

and

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

Introduction

1. This appeal concerns the parenting arrangements for two children, X born in 2005 and Y born in 2006 (“the children”).

2. Prior to the hearing before the primary judge on 13 September 2019, the children had lived with Mr Rader (“the father”) for 11 months, after having previously lived with their mother, Ms Rader (“the mother”). On 13 September 2019, as a result of interim orders made on that day, the children were moved from the father’s care to the care of Mr and Ms Haines (“the maternal grandparents”) who were given sole parental responsibility for them but who were “not [to] make any non-urgent major long-term decision without consulting each of the parties first and obtaining an order of the Court” (Order 1). Further, the parents were restrained from contacting the children, save that they may spend time with them “in accordance with any written recommendation of the family therapist … and that recommendation may include both time, place and supervision” (Orders 5 and 6).

3. The father appeals against these orders. The appeal is not opposed by the mother, the maternal grandparents or the Independent Children’s Lawyer (“the ICL”). For the reasons that follow, the appeal will be allowed. It is only necessary to focus on Grounds 1, 11 and 14.

4. In order to understand these grounds of appeal it is necessary to explain how the orders came about.

5. The matter was listed on 13 September 2019 for the interim hearing of an urgent application filed by the mother on 15 July 2019 that the children live with her. All parties had filed case outlines, including a very detailed one prepared by the ICL.

6. The hearing commenced at 9.41 am on 13 September 2019. After the appearances had been mentioned, the ICL announced that she thought that “this is a difficult matter” and “it’s going to be ‘which is the best of the bad bunch,’ frankly” (Transcript 13 September 2019, p.2 line 44 to p.3 line 2). This comment should not be allowed to pass unnoticed. This was no way to speak about the children’s parents.

7. The primary judge assented to the first proposition and asked the following question in response to the second proposition:

   Has anyone spoken to the maternal grandparents about whether they want to intervene?

   (Transcript 13 September 2019, p.3 lines 4–5)

8. The ICL responded that the maternal grandparents were present in Court and that she “may have some proposal in that regard” (Transcript 13 September 2019, p.3 line 19).

9. His Honour said “[w]ell, certainly as far as [X’s] concerned, they may be an option” (Transcript 13 September 2019, p.3 line 25).

10. The solicitor for the father then made an application for an adjournment on the ground that the father’s previous solicitors and counsel had withdrawn the morning before the interim hearing and she did not have a file or any knowledge of the matter. The solicitor indicated that if the adjournment was refused, then she would withdraw as she was not in a position to assist her client. The application for an adjournment was refused and the matter was then adjourned to 12.07 pm that same day.

11. By the time the hearing resumed, the father’s solicitor had left and he was acting for himself.

12. The ICL told the Court that she had prepared a Minute of Orders and had given a copy to each of the parties. After the ICL had indicated that one of the orders that was sought was the joinder of the maternal grandparents, the maternal grandfather who was present in Court was invited to the bar table.

13. The ICL’s Minute of Orders also proposed that the children live with the maternal grandparents within proximity to the children’s schools, that the father be restrained from contacting the children and that family therapy be arranged. Significantly, no orders were proposed as to parental responsibility.

14. Counsel for the mother announced that she consented to the orders. The ICL and the father indicated that they relied on the case outlines prepared by them in response to the mother’s now, presumably, defunct application.

15. The maternal grandfather confirmed that the maternal grandparents sought leave to be joined to the proceedings and an order was made to that effect.

16. The primary judge proceeded to hear submissions from the ICL, the mother and the father. The maternal grandparents did not make any submissions or give any evidence. His Honour made no enquiries of the maternal grandparents as to how they proposed to look after the children, where they would live, and so on.

17. After the ICL had completed her submissions, the father was asked if he had any evidence to tender. He indicated that there was a problem because his solicitors were not there and, as they had been looking at the subpoenaed material, there was a lack of procedural fairness if the matter proceeded. His Honour responded:

    Yes. Well, procedural fairness must be afforded to all parties, but the fact that you don’t have lawyers today isn’t anyone else’s fault.

    (Transcript 13 September 2019, p.43 lines 4–5)

18. His Honour added:

    And in the circumstances of the material I’ve been shown today I believe I need to make a decision today. In those circumstances, balancing all the various and competing interests, but always putting first the interests of the children, I’m satisfied that since all I’m doing today is making interim orders, it is appropriate to proceed despite what’s just been said. All right. Thank you.

    (Transcript 13 September 2019, p.43 lines 9–13)

19. It can be inferred that the matters before the primary judge were of such urgency that even a short adjournment was unacceptable.

20. The father commenced his submissions by pointing out that he had come to Court to meet an entirely different case and that it was not until late in the morning of the hearing that it became apparent that orders involving the maternal grandparents were now sought (Transcript 13 September 2019, p.58 lines 32–34). He then suggested that any consideration of these orders be delayed until the expert report was received, noting that Dr B, the single expert psychiatrist, was to conduct interviews for that expert report on 11 and 12 November 2019.

21. The father submitted that the comments that the children had made about him to their treating psychologist, which had been extracted by the ICL in her case outline, had been taken out of context (Transcript 13 September 2019, p. 68 lines 43–45) and that “there’s an awful lot of commentary in there that’s positive in terms of their [experience] in staying with the father” (Transcript 13 September 2019, p.70 lines 18–19). The father then referred to parenting courses that he had recently completed (Transcript 13 September 2019, p.73 lines 9–32). The father also said:

    And I do think in the best interests of the children, if we’re going to make any orders, it should be something that’s not done today. You know, these children have been living with me for 11 months. We’ve addressed the issues of, you know, talking about the proceedings and the injunction and taking the parenting courses and so on. We’ve addressed the issue of the children’s comments that the ICL has highlighted in there and the full records that have been around.

    (Transcript 13 September 2019, p. 75 lines 21–26).

22. The father added:

    So I’m just really concerned about the psychological harm dragging the children out of, say, the school and home today and putting them in the care of the [maternal] grandparents is going to have, given where we’re at.

    (Transcript 13 September 2019, p.78 lines 12–14)

23. At 3.52 pm, his Honour adjourned and read the material. His Honour returned at 4.36 pm when judgment was delivered.

24. Although not directly relevant to the appeal, the matter came before the primary judge again at 8.04 pm that same day. It appears from the transcript that the ICL, and no one else, appeared by telephone. His Honour asked what had happened and was told:

    [X] went in the house, the father closed the door and locked it behind her. She then, at some stage, ran away. I received a text message from the [maternal] grandfather to say that she’s back now and [Y] is apparently in the house saying he’s not coming out. The father is not doing anything to facilitate them coming out. I have phoned [Suburb D] Police, which is the local police station. They will go down and do a welfare check but they’re not able to do anything else …

    (Transcript 13 September 2019, p.97 lines 25–30)

25. His Honour asked if a recovery order was sought. The answer was yes and the primary judge immediately commenced to deliver a judgment (Transcript 13 September 2019, p.97 lines 34–41). During the course of doing so, his Honour asked if X had run away from the maternal grandparents. His Honour was told by the ICL that “[s]o she ran away from the home and I don’t know whether that was to get away from the father” (Transcript 13 September 2019, p.98 lines 2–3).

26. The giving of reasons resumed and a recovery order was made. We do not have the benefit of those reasons for judgment.

27. The police executed the recovery order in the early hours of the following morning, waking the children and removing them from their beds so that they could pass into the maternal grandparents’ care.

28. It is beyond me to identify any urgency or risk to the children that justified such drastic, peremptory, ex parte action in either seeking the recovery order or in granting it. Both children described their distress at this course and the continued upset it has caused them in detail to Dr B. He saw the children and the parties as described earlier, and in response to the urgent appeal hearing, provided his expert report on 20 November 2019. I shall return to it in due course.

29. This immediate recovery order should not have been sought or made.

The Appeal

Was the father denied procedural fairness? (Ground 1)

1. The father submits that he was denied procedural fairness by being required to deal with the ICL’s oral application for the proposed orders involving the maternal grandparents that day, when even a short adjournment would have seen him in a position properly to meet the application.

2. It is trite law that a person is entitled to know the case that is made against them and be offered the opportunity to meet it.

3. The proceedings listed for hearing was the mother’s interim application that the children live with her. The proposal that, instead, the children live with the maternal grandparents was novel – it had not been foreshadowed in any way. It was entirely different to the case that the father had prepared to meet and the proposal involved a drastic and immediate change in the parenting arrangements for the children.

4. It is to be recalled that the ICL informed the parties and the Court of her proposed orders only after the father’s new solicitor had sought an adjournment which had been refused and who had then withdrawn.

5. Indisputably, the father was not afforded any opportunity to meet this case.

6. Significantly, the father attempted to rely on statements made by the children recorded in various documents in the subpoenaed material. Whilst he was able to identify some passages that were of assistance to him, it is clear from the transcript that he could not identify every passage. This is not surprising because it was his previous solicitors who had carried the burden of inspecting that material.

7. It is easy to conclude that the father was denied procedural fairness. However, “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial” (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).

8. It is, therefore, necessary to consider the nature of the proceedings and, in this case, consider whether the allegations of risk of harm to the children were of such a nature that the matter had to be determined that day. It is convenient to pause at this stage and consider Grounds 11 and 14 of the Amended Notice of Appeal filed 25 October 2019.

Was there an unacceptable risk of harm to the children in the father’s care? (Grounds 11 and 14)

1. Ground 11 is that his Honour erred by failing to identify any psychological harm to the children through remaining in their father’s care. Ground 14 is that his Honour erred in making orders that provided for the immediate removal of the children from their father’s care.

2. It is pointed out by the father in Ground 14 of his Amended Notice of Appeal filed 25 October 2019 that no finding was made that the children were at risk of harm in his care, but it must be inferred from the peremptory nature of the orders and from the primary judge’s finding that his Honour was “gravely concerned about the children’s psychological safety continuing to live with the father” (Rader & Rader (No.4) [2019] FCCA 2826 (“Rader (No.4)”) at [49]), that the primary judge considered that the children were at an immediate risk of severe harm in the father’s care.

1. The father’s submission is that the evidence relied on by his Honour did not identify such a risk of harm. The father is right.

2. I turn to his Honour’s reasons.

3. The primary judge’s reasons commence by noting that the mother was not then in a position to care for the children (Rader (No.4) at [7]).

4. His Honour said that this was an interim decision and that the evidence of the mother and father was irreconcilable. However, “great weight must be given to what the children have told their school counsellors and psychologists” (Rader (No.4) at [16]).

5. After referring to the ICL’s case outline and saying that the extracts from the notes were “broadly correct” (Rader (No.4) at [23]), his Honour said:

   24.But, otherwise, I think the summary of the material extracted is reasonable. The father said it needs to be read in context. I have read it as best I can. Some of the handwritten notes are very difficult to read and it is sometimes hard to tell when the father has been in the room with them. But I think [X] saying things such as:

   Dad is annoying. I am stuck with him for four years. How am I going to cope?

   And:

   He yells and can be a bully.

   The fact that she says both parents were drinkers and pass out drunk:

   I am not a priority. I am alone. My parents weren’t cut out to be parents –

   gives a fair tenor of her views.

   25.[X] indicates that she misses her maternal grandparents, who have intervened.

   26.The father says that the maternal grandparents cut themselves off and did not want to have anything to do with the children.

   27.I understand the [maternal] grandparents' position to be quite contrary to that.

   28.The fact that in May 2019 when [X] visited the maternal grandparents her father arranged that to be supervised by a neighbour, tends to suggest to me, although I cannot decide it as a question of fact today, that the maternal grandparents' position that they have not distanced themselves, but that the father has distanced them because of the fact that they are the mother's parents, on balance, at the moment, seems to be more right.

   29.I note that [X] said:

   I used to have a great relationship with them –

   and told her psychologist that she had been very close to her grandmother previously. I also note that [X] told her psychologist:

   Dad is trying to control what I say and I prefer to meet with them separately –

   I take this to indicate that [X] felt that she would like to spend time with her maternal grandparents and that her father was seeking to stop that.

   30.In that context this is an interim hearing and I cannot and will not make any findings of fact, and who knows what may happen at a later date, but the school records where the father sent to the children's schools an email saying that the [maternal] grandparents were not to be allowed to see the children went so far as to include a photograph of the [maternal] grandparents, so that the school would know who they were to stop them from approaching the school.

   31.That tends to suggest to me, on balance for the purposes only of this interim hearing, that it is not the [maternal] grandparents who have distanced themselves from the grandchildren, but the father who has sought to distance them as part of his fight with the mother.

   …

   38.I also rely upon the clinical GP notes in respect of what the children are saying. The Independent Children's Lawyer referred to the email from [Suburb J] Family Medical Practice to the psychologists in 27 February 2019, noting that [X] said she:

   …is missing her mum, but feels she can't talk to her dad about this. We had a really good session last week (with… the father, out of the room), but today [the father] came into the room asking about medication. We have not really even discussed medication at all. He agreed to leave the room again and –

   I emphasise –

   she says he is very controlling and wants to know everything we are talking about.

   39.She also notes that now they are not together, [X] has lost most family friends. They are in contact with Mum and:

   [The father] does not want the kids to see them.  For example, her godmother. [X] is missing a close female adult that she can talk to. She does not want me to discuss this with [the father].

   40.I note that that again tends to support the idea that the father has tried to isolate the [maternal] grandparents away from their grandchildren, rather than the [maternal] grandparents abandoning their grandchildren.

   41.I note in respect of [Y] that he reported being worried about his father's mental health. He says that:

   His mother is causing his father to stress, sees this in his father losing his temper more easily, although [Y] said that Dad always apologises the next day. [Y] reports Dad communicating a lot of what is happening in Court, the police and the mum. [Y] very well informed. Mum didn't show up to the AVO. Mum did a fake AVO on Dad. Mum lied to police.

   …

   45.Also I am very concerned about the fact that [Y] said to his doctor, of his father, he:

   …takes all his anger out on [Y] and [X]. This upsets [Y] – afraid of Dad a few times in the past, when Mum made him.

6. This led his Honour to the following conclusions:

   48.But having just spent the better part of an hour reading the clinical notes, the impression I have is that these children are, indeed, being used just as pawns in the forensic battle between the parents, that no particular care is being taken for their mental health, and although they both seem to be doing well at school, that is despite, not because of any parenting they are currently getting, and who knows how long that will last.

   49.In those circumstances and mainly given this subpoenaed material I am gravely concerned about the children’s psychological safety continuing to live with the father.

   50.For those relatively short reasons, I think that the orders broadly proposed by the independent children's lawyer that the children live with the [maternal] grandparents should be made. I noted some concerns with her, and I understand the Independent Children's Lawyer and the mother accepted the issues I raised.

7. Clearly, the children were having difficulties as identified above. But where was the risk of harm that required such a rushed and peremptory approach to the hearing and an immediate change of the parenting arrangements?

8. I am unable to see one in the material identified by the primary judge. The children had been living with the father for 11 months and any issue was a chronic and not acute one. No event or significant change of circumstances was relied upon by the primary judge.

9. It follows, in my opinion, that the primary judge’s findings fell well short of identifying a risk of harm that required an immediate move of the children’s care from the father to the maternal grandparents, sufficient to deny him procedural fairness. There was no reason why the order had to be made on that day. Indeed, there was force in the father’s suggestion that the orders be considered after the receipt of the expert report, which Dr B could have been asked to expedite as best he could, and which it was understood would be available within a couple of months at the latest.

10. I am of the opinion that Grounds 11 and 14 have been made out.

Conclusion and re-exercise pending the remitted rehearing

1. Returning then to the issue of procedural fairness, there was not, in my opinion, evidence establishing a risk to the children of such magnitude and urgency that the best interests of the children required the matter to proceed on 13 September 2019.

2. I would also allow the appeal on Ground 1.

3. That being so, the orders made on 13 September 2019 must be set aside and the matter remitted for rehearing before a judge other than the primary judge. It is neither necessary nor desirable to consider the remaining grounds save for the following remarks.

4. Orders 5 and 6 empowering the family therapist to determine whether the parents should have any contact with the children and, if so, the duration, place and nature (i.e. supervised or not) was clearly erroneous. The order delegates the Court’s judicial power to determine the controversy between the parties to the family therapist and it imbues the family therapist with aspects of parental responsibility. The first cannot be done and the second is most inappropriate.

5. Further, Order 1 as to parental responsibility ought not to have been made as it was. The maternal grandparents were given sole parental responsibility but could not make “any non-urgent major long-term decision” without obtaining an order of the Court. In effect, the Court has given itself parental responsibility which makes the order rather pointless.

6. I propose that the appeal be allowed, the orders made on 13 September 2019 be set aside and the matter be remitted to the Federal Circuit Court of Australia to be reheard by a judge other than the primary judge.

7. Given that, it is necessary to consider what parenting orders should be in place pending any further hearing of this matter in the Federal Circuit Court of Australia.

8. The Court has been informed that a judge of the Federal Circuit Court of Australia will be able to conduct a rehearing on 17 December 2019.

9. The appeal was listed for hearing on 15 November 2019, when all parties and the ICL indicated that the appeal was not opposed. The father sought the opportunity to put not only evidence from himself before the Court but also evidence from the children’s schools, psychologists and therapist. The ICL sought to put evidence from the Police before the Court. Orders were made to that effect and leave was granted to issue subpoenae on short notice. The further evidence adduced by the maternal grandparents was received and leave was granted to them, the mother and the father to file further affidavits. The appeal was stood over to 21 November 2019.

10. All parties filed affidavits and the relevant subpoenae were issued.

11. The family therapist objected to access being granted to her notes on the grounds that it would not be in the children’s best interests and because her notes were not complete. We agreed and access was not granted.

12. The expert report of Dr B was received and released on 20 November 2019.

13. At the resumption of the appeal on 21 November 2019, the Court was informed that Y was admitted to hospital at 11.00 pm the night before, as he is considering suicide. The hospital psychiatrist has advised that he will be admitted to the appropriate unit for a few days at least. In the afternoon, when X and Y were alone, Y had told X that he proposed to hang himself. She saw a noose in his room. X managed to talk Y out of it.

14. According to the maternal grandfather, X later told him that she had contacted the father and said these things to him and that the father told her not to say anything to anyone. The father says that X did indeed raise concerns about Y with him but he denies that he told X not to say anything. Obviously, we cannot resolve this factual dispute today but such a course of conduct by the father would be contrary to the father’s history of active involvement of health professionals for the benefit of the children.

15. Today, the father seeks an order that the children live with him and spend no time with the mother.

16. It is accepted that, at present, the mother is not in a position to care for the children.

17. The maternal grandparents seek orders to the same effect as those made by the primary judge and are prepared to continue to care for the children.

18. The position of the ICL is that the children should remain with the maternal grandparents.

19. There is limited material before the Court that assists in determining the appropriate order. Much of the evidence before the primary judge was disputed.

20. The children lived with the father for 11 months, up until 13 September 2019, when orders were made by the primary judge which saw the children live with the maternal grandparents.

21. As the principal reasons demonstrate, the children, at least at times, indicated to their counsellors and psychologists, unhappiness in living with the father. However, even accepting that to be so, that is not something that requires them to be immediately removed from the father’s care. That risk was again highlighted today by counsel for the ICL and counsel for the mother. Again, in my opinion, it is not something that either requires their immediate removal from the father’s care or to prevent them from being returned to the father’s care.

22. The children did not see the mother between September 2018 and September 2019. The mother says that this was because the father prevented the children from seeing her. The father’s case is that it was in the children’s best interests not to see the mother and that, in any event, they did not wish to see her.

23. The children have firmly told their psychologists that they do not wish to see the mother and, in short, it is the psychologists’ view that, at present, it would be harmful for them to be required to do so.

24. The maternal grandparents assert that after the orders were made, the maternal grandparents collected X from her school and took her to the father’s home to pack a bag and to collect Y. The maternal grandparents say that the father then refused to let the children leave the house. Ultimately, as already recorded, a recovery order was made, the Police attended and in the early hours of the following morning the children were released into the care of the maternal grandparents.

25. The father disputes this and says that the children refused to go with the maternal grandparents. The father’s version of the event is largely supported by what the children told Dr B who also recorded that, in his opinion, the children were aligned with the father.

26. The maternal grandparents’ evidence goes on to assert that the children quickly settled down in their care and were “in good spirits and doing well” (Maternal grandfather’s affidavit filed with leave on 15 November 2019, paragraph 21) until they saw the father for supervised contact, as arranged by the family therapist. It is also alleged that the father has been contacting the children directly, contrary to the orders. The available evidence demonstrates that the family therapist had reintroduced the children to the father and approved unsupervised contact. Thus, it appears that the contact between the children and the father was not in breach of the orders.

27. Since then, the maternal grandparents say the children have been “sullen and moody and withdrawn” (Maternal grandfather’s affidavit filed with leave on 15 November 2019, paragraph 23). The maternal grandparents added:

    The children were as good as gold until we became aware from the family therapist [the father] was contacting them. Since that has been happening [Y] has started cutting himself and exhibiting very traumatised behaviour.

    (Maternal grandfather’s affidavit filed with leave on 15 November 2019, paragraph 31)

28. Dr B agrees that the children are not doing well in the maternal grandparents’ care and that Y is cutting himself. The children said they are unhappy there and strongly expressed to Dr B their wish to return to live with the father.

29. It is appropriate to record here that the school records show the children to have done well at school in the last year whilst in the father’s care. Recent records show that Y’s condition has deteriorated significantly since 13 September 2019 and he maintains his desire to return to live with the father.

30. On 22 October 2019, the school psychologist at Y’s school wrote to Y’s treating psychologist describing that Y was reporting to him, his feelings of “hopelessness, anxiety and low mood” (Annexure “H16” to Exhibit E). A letter in reply says that recently Y feels very out of control and isolated.

31. A letter dated 11 November 2019, from the school psychologist, makes it plain that Y is well aware of the court proceedings about which he was anxious and distressed (Annexure “H17” to Exhibit E). A note dated 21 October 2019 records Y’s unhappiness about living with the maternal grandparents and that he feels unsupported and has difficulty sleeping (Annexure “H19” to Exhibit). Other documents show that the maternal grandparents had indeed discussed the appeal with him.

32. The present orders are not working in the children’s best interests, especially Y’s. The immediate and serious risk to his life developed after he was removed from his father’s care. There is no suggestion that such a risk existed whilst in the father’s care or would exist in the father’s care in the future. Clearly, it is not in the children’s interests for them to be separated at this difficult time.

33. Generally speaking, it is undesirable for children to be moved from one residence to another then back again. This is particularly so when there is a prospect that at a fully informed interim or final hearing there may be further change in their parenting arrangements. However, such a course may still be in the best interests of the children.

34. The children had lived with the father for 11 months and although they complained to their psychologists in the manner described earlier, no other risks of harm were identified. Those selective comments must be seen against the reports of both psychologists, neither of whom identified a risk in the father’s care or suggested a change of care. The children strongly wish to live with the father and just as strongly do not wish to live with the maternal grandparents. Their reasons, as set out by Dr B, are cogent and amply demonstrated why his Honour should have given the father a proper opportunity to have participated, and waited, as we did, until the expert report was available.

35. Dr B opines in favour of the children’s return to the father and indeed could see no reason why they were moved at all. He said:

    I strongly support the recent engagement of the services of Ms [F], an experienced family therapist with extensive experience in dealing with families exposed to high conflict and adversarial Family Court proceedings. She had recently successfully renegotiated the re-establishment of contact between the children and their father. Although this had been opposed by the mother, the report writer supports this intervention which served to mitigate the disruption to the children’s developmental experience following the precipitous intervention by the AFP. They had removed the children at 2:00 am from their father’s premises, to place them in the care of the maternal grandparents. The report writer could not identify an indication for such a dramatic intervention. It behoves all parties to act in a more judicious manner, to enable the gradual reintroduction of the children to their mother, while in the father’s care …

    (Report of Dr B dated 19 November 2019, paragraph 287)

36. These matters are sufficient to persuade me that until 17 December 2019, the best interests of the children will be served by them living with the father but subject to the conditions recommended by Dr B. The conditions were that the father be compliant with court orders, maintain contact with the family therapist and current school arrangements. There should be no orders for contact with the mother, this being a matter for exploration at the anticipated rehearing. The father proposed orders along these lines. I would make them. In the light of recent events, there must be an order for parental responsibility which must be granted to the father.

Watts J

1. I agree with the reasons given by Aldridge J and the orders proposed by his Honour.

Ryan J

1. I also agree and they will be the orders of the Court.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ryan, Aldridge & Watts JJ) delivered on 21 November 2019.

Associate:

Date:  26 November 2019