Renald and Renald (No 2)
[2017] FamCAFC 133
•14 July 2017
FAMILY COURT OF AUSTRALIA
| RENALD & RENALD (NO 2) | [2017] FamCAFC 133 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Magistrate refused to issue a recovery order for two of the parties’ seven children held over by the father after school holidays in breach of recent consent orders – Absence of a formal order dismissing mother’s application for a recovery order not appealable error – Magistrate erred in failing to consider the reports of the Single Expert – Magistrate erred in failing to consider factors in s 60CC of the Family Law Act 1975 (Cth) including best interests of the children. FAMILY LAW – APPEAL – CHILDREN – Re-exercise of discretion – Updated Single Expert report received as further evidence in the appeal – Children’s interests the paramount consideration – Impact of order on other siblings considered – Father’s conduct in not complying with court orders considered – Bondelmonte v Bondelmonte (2017) 341 ALR 179 applied – Differing considerations apply to the two children who have now been with the father for six months – Older child permitted to decide whether to remain living with the father or return to the mother – In the best interests of the younger child to return to the mother pending the trial of the substantive dispute – Father ordered to return the younger child to the mother – If the father fails to comply with the order, a recovery order will issue. |
| Family Law Act 1975 (Cth) s 60CC Bondelmonte v Bondelmonte (2017) 341 ALR 179 |
| APPELLANT: | Ms Renald |
| RESPONDENT: | Mr Renald |
| FILE NUMBER: | PTW | 6955 | of | 2015 |
| APPEAL NUMBER: | WA | 12L | of | 2017 |
| DATE DELIVERED: | 14 July 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 13 June 2017 and 11 July 2017 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 10 March 2017 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Berry SC |
| SOLICITOR FOR THE APPELLANT: | Dimond Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mwenda |
| SOLICITOR FOR THE RESPONDENT: | O’Sullivan Davies |
Orders
The appeal be allowed.
By not later than Monday 17 July 2017, the respondent shall deliver up to the appellant such of the parties’ children as are residing with the respondent, except for the child B born in 2002 (“B”) who may elect to remain with the father if he wishes to do so.
In the event the respondent fails to comply with Order 2, a recovery order in the usual form shall (upon written request of the appellant) issue for the delivery up to the appellant of any of the children remaining with the respondent, other than B.
Pending further order, the orders made on 15 April 2016 shall remain in full force and effect.
The appellant shall file and serve submissions (not exceeding five pages) in support of any application for costs (or for the issue of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth)) within 14 days of the date of this order.
In the event that the appellant files and serves submissions in accordance with Order 5, the respondent shall file and serve submissions (not exceeding five pages) in response within 14 days of service of the appellant’s submissions.
In the event that the respondent files and serves submissions in accordance with Order 6, the appellant be at liberty to file and serve submissions (not exceeding two pages) in reply within seven days of service of the respondent’s submissions.
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 Renald & Renald (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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 12L of 2017
File Number: PTW 6955 of 2015
| Ms Renald |
Appellant
And
| Mr Renald |
Respondent
REASONS FOR JUDGMENT
In April 2016, the appellant (“the mother”) and the respondent (“the father”) consented to interim orders that their seven children should live with the mother, as they had since their parents separated in 2013.
In breach of the orders, the father kept two of the children at the end of the summer holidays, and enrolled them in a new school. The mother immediately sought a recovery order, but it was decided there was insufficient urgency to warrant an urgent listing, notwithstanding the school year was about to commence. Instead, the application was set down some six weeks later.
On 10 March 2017, a Family Law Magistrate declined to make the order, but made orders progressing the litigation which had been ongoing since 2015. The appeal against the refusal to make the order was expedited, against the backdrop of a trial having been listed to commence in late August 2017.
Brief background
The mother and the father commenced cohabitation in 1993, married in 1997 and separated in August 2013. They have seven children; O born in 1999, S born in 2001, B born in 2002, T and V, twins born in 2005, A born in 2006 and Y born in 2009.
The mother was the primary carer, and the children remained with her after the separation, although the three older children attended boarding school at times.
O finished school in 2016. After being withdrawn from boarding school, S and B started at College W in 2016. V and T were meant to be starting Year 7 at College W in 2017, along with other members of their class from Primary School L.
The father lives in Town H, more than two hours’ drive from the mother’s home in Perth. He says he was only able to have limited time with the children after the separation, and had only limited telephone contact.
In April 2016, interim orders were made for the children to live with the mother, and for all but Y to spend long weekends and part of some school holidays with the father. The orders made no provision for the father to spend time with the children during summer holidays, but the mother agreed some of them could visit him from 8 January 2017 to 29 January 2017.
The children B, V and A went to stay with the father as agreed. The mother says S and T refused to visit, and O was in the Eastern States. While B, V and A were with the father, he told the mother he would be bringing them home a day late. Ultimately he returned only the child A.
On 31 January 2017, the mother sought a recovery order for B and V. She did not seek to review the decision to list the application in March 2017, which she was entitled to do since the Magistrate made his decision about the listing as a Registrar of the Family Court of Western Australia.
On 3 February 2017, the father’s solicitors wrote to the mother’s solicitors advising that while B and V continued to express a wish to remain with the father, “our client will agree to your client collecting the children from his home … at 4.00 pm on Sunday, 5 February 2017”. On this basis the father’s solicitors invited the mother’s solicitors to sign a Minute of Consent Orders providing for the dismissal of the application for a recovery order.
The mother travelled to Town H on 5 February 2017. The father gave detailed evidence about her unsuccessful attempt to persuade the children to come home, but gave no evidence of any effort by him to persuade them to return. On the contrary, over the mother’s objection, he recorded the events and abetted the children in their refusal to go with the mother. Although nothing was said about this in his solicitors’ letter, the father had already enrolled the children in school at Town H where they commenced on 1 February 2017. He has also enrolled them in local sporting teams and Horse Club.
By the time the matter came before the court on 10 March 2017, B and V had not seen any of their siblings since early January (save for A who was with them during January and came to visit once just before the hearing). They had not seen the mother, save on the day she tried to collect them. There had also been only limited telephone contact.
The Magistrate’s reasons and orders
The matter came before the Magistrate in what was presumably a busy list. Having heard argument from the solicitors, his Honour gave these reasons:
[B and V] have now been in the father’s care and he is refusing to return them or he is saying that he is not prepared to return them, given their strong views. There is conflicting evidence between the parties about the extent of the views, the extent of any comments that might have been made by the mother to those two children about their capacity to choose their own living arrangements.
I am comfortable in saying these comments because I’m not going to be the judicial officer determining this officer [sic]. But the parties’ behaviour in this matter, as I said at the start of this, is appalling and I’m not prepared to go too much further than that, given that I’m not making findings about matters that are in dispute on an interim basis because the parties have different views. But there are clear orders in place. Those orders have clearly been breached.
The issue of whether there’s a reasonable excuse for those breaches is something that might be considered at trial. The father has, effectively, unilaterally changed the living arrangements for these two children. It is not possible for me to properly determine whether that was appropriate action and unless [sic] that is through the trial process. It seems to me that that is the appropriate course and the appropriate avenue to try and get to the bottom of some of these issues.
Having said that, with … no criticism of the mother, given the time that it has taken to have this matter listed before the court, the children are now in a new situation, new schools, in a different location. And the application to recover them to the mother’s care, whilst the orders do favour her, I’m not prepared to chop and change the children’s situation and return the children to the mother’s care on an interim basis, given all of that dispute.
It may well be at trial that a trial judicial officer … takes a view that the wishes of those two children are such that they should remain living with the father. The trial judicial officer may take a view that the views of the children were not as strong as the father claims and that the father’s conduct was reprehensible. That’s an issue for trial. I’m not prepared to put in place a recovery order which is the applications [sic] before me.
I’m not prepared to make further orders about the ongoing living arrangements for these two children. The circumstances have changed, in accordance with the material filed, and the court will have to see what happens between now and a trial.
His Honour did not dismiss the mother’s application (nor did he give reasons for not having done so). Instead he made orders for the filing of affidavits, over a 56 day period, relating to the possibility of obtaining yet another report from the Single Expert. He then adjourned to a date already allocated for a Readiness Hearing. No orders were made for the mother to see the children even though the father had volunteered such orders in his response.
The Grounds of Appeal
There are three grounds of appeal.
Ground 1 – failure to make orders pertaining to the application
Ground 1, as amended, asserts error by the Magistrate “in failing to determine and make orders pertaining to the … application filed 31 January 2017”.
It was submitted that this error was compounded by the delay in listing, which, it was argued, was not justified in view of the nature of the application and the evidence before the court, including that of the Single Expert.
I consider there is substance in this argument. The interim orders were recent and made by consent. The application was filed immediately after the children were retained by the father. The father had Perth solicitors on the record and there would therefore have been no delay in service. The children were meant to be back at school on 1 February 2017. The effect of the father’s actions was that the siblings were separated, contrary to the recommendation of the Single Expert. There was no suggestion they would be at any risk if returned to the mother in accordance with the orders to which the father had consented.
I assume that the delay in listing was associated with the Magistrate’s heavy workload, but even so it was unacceptable in circumstances where a party was looking to the court to enforce a recent order. It is therefore regrettable that the mother did not seek a review of the decision not to list the matter promptly. However, I am not dealing with error in the listing process. My task is to consider whether there was error on the part of the Magistrate on 10 March 2017, by which time, for better or worse, the children had been held over for some weeks and had commenced at their new school.
It was argued that the failure to make an order “dealing” with the application was tantamount to a refusal of the application, and that such refusal constituted an “order”. While I accept this proposition, it does not advance the mother’s case since there is no doubt his Honour heard and determined the application. While he did not make a formal order dismissing the application, that is not an error that requires appellate intervention. Instead, that failure ought to have been resolved by counsel asking his Honour to pronounce the order he clearly intended to make, namely to dismiss the application for a recovery order.
There is therefore no merit in Ground 1.
Ground 2 - failing to consider the evidence of the single expert
Ground 2 asserts that his Honour failed:
to adequately consider (with appropriate weight) the evidence of the Single Expert Witness … as provided in each of his reports filed 8 April 2016 and 17 January 2017, both of which make recommendations for all of the children to remain in the Mother’s primary care.
It is correct that the Magistrate did not make any reference to the reports of the Single Expert. The second of these was very recent; having been published in January 2017 after the Single Expert had interviewed all the family members in late 2016, just prior to the visit in the last weeks of the summer holidays.
In his first report in April 2016, the Single Expert expressed surprise that his assessment was to be limited to ascertaining the children’s wishes:
3.The first ground is that of the 7 children, the oldest 3 are in an age‑range where views would be a substantial and possibly paramount consideration. Children of the ages 13 through 17 should be given substantial weight to their wishes.
4.However, the younger 4 children vary in ages from 6 … to 11 years, which is an age range where best interest are substantially more important than the wishes of the children.
The expert detailed what he had been told by each of the children, but given the scope of the appeal I refer only to the parts dealing with B and V:
44.I spoke to [B] about different options. He indicated that on a scale of zero to 10, if he was living with his mother in the city he would rate it as a 6. He indicated that in the school holidays he would rather go to [North Western Australia] to visit farming friends he has, rather than spend time with his mother or father in the school holidays.
45.He indicated that if the option was to live with his father on the grandparents’ farm he would rate it as an 8. He liked the open space and said if he lived in that arrangement he would like to spend time in the school holidays with his mother, and some of the time with his farming friends.
46.When I indicated his father was planning to move off the farm, he indicated that if living with his father off the farm he would rate that a 6 because “dad would still be close to the farm”.
47.I spoke also about how would it be if he went to Agricultural College, and he said how that would be a 10 out of 10…
…
55.This 11 year old girl [V] was more talkative than her twin sister. She presented as being of average maturity and did not present as much in the way of being influenced.
…
57.She indicated within the sibling group that [T] was her closest and her older sister [O] was the next closest. She tended to get on well with the other children, but less well with the younger boys than with her sisters. She liked [B] particularly well.
58.When it came to her parents, she indicated she got on best with her mother. The positive aspect of her mother was letting her do the things she wants to do and giving her choice. She said “the downside with mum is she shouts quite a bit when she’s tired”.
59.With her father she saw him as “nice”. She also liked that he had bought some new clothes for Christmas and that he pays for her [music] lessons. On the negative side of things she felt that “he shouts and swears”. She indicated that she does not see him much because he is down south.
60.When it came to different options in regards to living arrangements, she thought that it would be 8 out of 10 to be able to stay with her mother in Perth. She thought what would be best would to be able to see her father every second weekend in Perth. She also liked the idea of her father moving to Perth.
61.[V] indicated that to go and live with her father and grandparents would be 4 out of 10. She was concerned that if she went down to the school she would not get her [music] lessons at school. She also felt that her friends from primary school would be going to high school and she liked that idea. She did not like the idea of making new friends.
…
73.The first observation I would make is that the father appears to be proposing that all 6 children come and live with him in [Town H]. Given that the mother has always been the primary carer, for the last 2 years his contact has been quite limited, and given the ages of the children, this appears to be quite an unusual request.
…
75.Of the 6 remaining children, only [S] and [B] really warrant their wishes being considered in any substantive way. [S’s] expressed position is not to relocate to [Town H]. I do not consider [S’s] views would justify relocation to [Town H].
76.[B] does not know quite what he wants to do, but particularly would like to go and live at an agricultural school. Because of [B’s] nature I believe consideration should be given to various options to find something which suits [B]. I believe that he could separate from the family and if he does not get into an agricultural college, the farm in the country may suit him.
77.In regards to the younger children, irrespective of their wishes, one would consider that best interests would be to remain in the primary care of their mother, and have reasonable time with the father. As the father lives quite a substantial distance away, the only options would be long weekends and school holidays. The history to date has not shown a huge amount of involvement on his part.
In his report of January 2017, the Single Expert said, inter alia:
8.From the general discussion the situation between the parties is fairly similar to when I reviewed it eight months ago. Effectively the situation remains highly acrimonious between the parents and the children, to some degree caught, remain in the cross-fire. A number of the children now have aligned with the mother and are not seeing the father, whereas others are persevering
[O]
…
10.In my discussion around the parents [O] described that there’s been a gradual breakdown in her relationship with her father. She said that she finds … “he talks about himself” and does not feel that he makes an effort to talk to her.
11.[O] spoke about how she feels her dad punishes those who are not loyal to him. She said how [V] and [T] may have played in the same sports game but he will only comment on [V] and ignores [T].
12.From [O’s] point of view since she told her dad to stop contacting her she feels less pressure and is happier in herself. She said that her mum had been making her contact him but reached a point where she decided to stop.
[S]
…
14.[S] indicated that she feels a lot closer to her mum and that they are able to talk about a lot of things, whereas before they were not quite as close.
15. [S] explained that with her dad that she was not talking to him. She said that his parents, [the father’s partner] and the father “started talking shit about [O] and mum. [The father’s partner] started talking about [O] treating dad badly, I wasn’t okay with it so I didn’t want to see them.”
16. [S] also spoke about a fear of how “he might turn up at school and get me to come with them”, therefore there is a degree of fear around the power play.
17.In my discussion with [S] she made it very clear that she did not feel it was from pressure from her mum or her sister but from the influence particularly of [the father’s partner] but also others when she was with her father.
18.In regards to recommendations for [S], I see her as having made her mind up about what arrangements suit her. I do not see any value in trying to challenge or change her position and any contact should be according to her wishes.
[B]
19.[B] is just finishing Year 8, he is 14-years-old and a big boy for his age. [B] is passionate about his sport therefore he did not attend visits with his father over the sports season unless it was weekends when he did not have a game because the sport is important to him. For a boy of his age and interest in sport it would be unreasonable for a parent to expect anything else from him. I note the mother has not enrolled summer sport but the same situation will reoccur next winter. The father needs to accept that this is the third force in a child’s life and that is when they have their own interests. [B] had struggled with the adjustment to another school having been boarding at … [his previous] school, to be going to [College W] has been hard for him. He continues to find himself somewhat cramped in terms of he is a boy who liked open spaces and country life.
20.[B] has been visiting his father. He said that he would be happier if he could continue to go down there. He feels that both parents are supportive of him.
21.As I understand it [B] is struggling academically and I am uncertain as what to recommend for [B] in that while he may like the lifestyle better if he was to go to live in the country, I also believe he would be more isolated and from my discussions with the mother he enjoys the family connection.
[V]
22.[V] is 12 years old[1] and a fairly happy go lucky natured child. She reported that she quite likes school although the sport is the part which she has the greatest passion for.
[1]V did not turn 12 until February 2017 – she was still 11 when interviewed in 2016.
23.[V] is visiting her father and says that she has a good time. She is uncertain as to why her sister does not want to go. She does not report any particular problems. According to [the mother], [V] is seen as the “golden child” by her father and his family therefore she receives a lot of positive attention.
24.The father said that [V] had confronted his partner … a few weeks prior to the interview and said that she had been told by [the mother] that their relationship had started some two years before. Consequently both sides are raising some issues around influences on [V].
25.Nonetheless [V] likes going down to the farm. If given the choice she had a lean towards living with her dad and visiting her mum but I also note she tends to like animals, the outdoor life and horses and so on and that is more readily available on the farm.
26.I did not see any particular reason why there needed to be a change of residence and she can continue to go visiting the father.
[T]
27.[T] is the twin sister of [V] who has a completely different take on the situation. During my interview with [T] she presented as quite a nice natured girl but I found her a bit disconnected and superficial around her answers. I note that she had threatened to self harm … however the context sounded more as a threat than a serious wish to die. The fact that … a child of her age is needing to make threats is a sad reflection of how she is coping with the stress.
28.[T] was happy with school and also enjoyed sport, however she did say that one of the problems she had was that there is a girl who is really mean. Unfortunately [V] has her as a best friend creating some dynamics for [T].
29.[T]’s perception as to why she does not want to visit her dad was “my dad ignores me and doesn’t care, my dad’s parents are really mean. [V] and [B] are golden children, I’ve never been golden. I stand up for myself and they don’t like it”. When asked what made the grandparents really mean she said they’re meanier to me than to [S]. She spoke about how [O] and [S] then get birthday cards.
30.While I do not see [T] in terms of any sort of serious suicide risk I believe that her psychological functioning is a sad reflection of the stressful circumstances from the parental conflict.
31.[T] needs to continue counselling and I would not recommend any attempts at making her see the paternal family until she is ready to have another attempt at it.
[A]
…
33.In regards to his parents he saw no particular problems with mum or dad. He saw the relationship as going well.
34.He particularly liked going down to the farm. He said that he has got a motorbike which he rides, he gets to chop wood, ride the tractor, do chainsawing and other activities which are fun for a boy of his age. When I spoke to him about influences he said “dad kind of talks bad about mum but mum not talk about dad”. He indicated that he would like to stay on the farm.
35.It seemed to me that [A] gets his needs met by being an active boy in an active environment, he has a good time and enjoys being with his father.
[Y]
…
37.[Y] described having a good relationship with both parents and is happy to see his dad. He said that he does not see his dad “often” but he said I’m fine after the visits. This conflicts a little with the information from earlier in the year.
38.With me [Y] said that he would like to be able to go for a weekend in the school holidays.
39.This fits a little with how [Y’s psychologist] and I discussed him previously and that is that [Y] will tend to say things are fine but when the crunch comes the anxiety comes up.
40.I believe that there should be an attempt to try a weekend in the school holidays although I do have some concerns in terms of the family dynamics which are becoming more evident. (See next section)
Under a heading “Overview and Conclusions”, the report went on to say:
41.In conducting this assessment one of the aspects which appeared in the affidavits is that it is highly disputed as to who is influencing him [sic]. The pattern from the way the children present is that while there is some influences from the mother and particularly aspects such as a mother struggling with the lack of money and some issues around at the father’s relationship, the bigger concern is the childrens’ perception of favouritism within the father’s family and some of the issues which the children are raising around [the father’s partner] and the paternal family of the father being negative to the mother.
42.I see underpinning a number of the children is a fear that the father is going to “take the children”. These types of fears are very hard to overcome unless the father sticks strictly to agreed times and orders.
43.While the parties are in the Family Court and the conflict remains high and especially while the mother’s financial position (according to her account) is quite precarious I see too many contextual factors to realistically bring about a change in the childrens’ views towards the father.
44.I see the three who want to come on visits to the father should be able to go for a week in each school holidays, half of the Christmas holidays and the time during term time.
...
46.If a weekend visit to the farm is successful for [Y], consideration can then be given to a more regular occurrence, however I am not sure when the crunch comes whether [Y] will actually go despite his expressed intention. If not my recommendation would be to continue with the Perth visits.
These reports revealed much about the family dynamics. Importantly, they contain no indication of any concern about the relationship between B and V and the mother, or any difficulties between the siblings. At best from the father’s perspective, they showed B’s yearning for a rural lifestyle and V’s prevarication about where she wanted to live.
If his Honour had considered the reports, he would have been able to place in context the statements the children made when faced with returning to Perth or remaining in Town H where they had been enjoying activities in the summer holidays. This context would have allayed his Honour’s concerns about his inability to determine the strength of the children’s wishes. Nothing had intervened between the recent interviews and the children’s announcement of their wish to stay in Town H, other than that they had spent a happy time with their father. In my view, there was ample evidence in the reports to have persuaded his Honour that the exercise of some appropriate parental encouragement by the father would have ensured the children’s return to the mother, with whom they had a good relationship.
Had his Honour considered the reports, he would also have been able to reflect on the recommendations of the Single Expert. In the case of B, the expert was uncertain what to recommend as B might feel “more isolated” if he lived with the father. Otherwise, the unambiguous recommendation was that the younger children should remain with the mother, “irrespective of their wishes”. This was consistent with the expert’s opinion that the best interests of children of this age are “substantially more important than [their] wishes”.
Paragraph 42 of the second report was of particular importance in determining how to respond to the father’s failure to return the children. There the expert addressed the fears of some of the children about the father “taking” them, and the importance of him complying “strictly” with agreed times. Notwithstanding that advice, the father decided the children would be returned late and then failed to ensure two of them were returned at all. The court’s failure to take action in response to such conduct potentially impacted on the willingness of the other children to visit the father, especially given that relationships between some of them and the father were already fractured.
The mother’s solicitor strongly submitted at the hearing below that his Honour should have regard to the Single Expert’s reports. In my view, his Honour’s failure to have any regard at all to the reports caused his discretion to miscarry.
I accept that the decision was based not only on his Honour’s inability to determine the strength of the children’s wishes, but also on the fact that the children had settled into a new school. However, whatever might be said about the importance of them remaining at a school they had attended for just six weeks, his Honour’s uncertainty about the strength of their wishes formed a central part of his reasoning. His failure to assess the likely strength of those wishes in light of the reports, and his failure to consider the effect on the other children of seeing the father flouting an order with impunity, constituted error.
For these reasons, I find merit in Ground 2.
Ground 3
Ground 3 asserts that his Honour erred by “failing to adequately consider the best interests of the seven children … in particular, the remaining five siblings from whom [B] and [V] have been separated”.
Although invited to do so by the mother’s solicitor, the Magistrate failed to take into account the impact on the children of his refusal to make an order which would ensure that all the children continued to reside together. In my view, this issue was of importance given the probability that some of the children would never visit the father’s home and the others would visit only occasionally. The likely effect of refusing the recovery order was that B and V would only see their mother and the other children infrequently. As already noted, they did not see each other at all in the period of some six weeks between them being retained by the father and the date of the hearing.
The mother had given evidence that Y’s behaviour had declined noticeably after she came home without B and V. She alleged that Y was now frightened that he would not be returned to her by the father in the same way as the other two children had been. These claims resonated with what the expert had reported about the fear of the children being “taken”.
The mother also asserted that Y had become very upset during a phone call with B in February 2017, repeatedly saying, “[B], come home”. His Honour was asked to consider this evidence, which was of potential significance in light of the counselling Y already requires; however there is no indication that the separation of any of the children from each other, including the separation of the twins, was taken into account. This was clearly a matter of significance, especially as V had told the Single Expert that of all her siblings, she felt her closest relationship was with her twin sister.
V’s alleged desire to remain with the father also needed to be considered in light of the fact that this was not the first time she was reluctant to return home to the mother. The father had given evidence that she had refused to get in the car at the end of a visit in August 2016, and said she wanted to live with him. To prove this, the father provided an email he sent to V’s teacher at the time, advising how “very upset” V had been about returning home (and also expressing to the teacher his concern about the mother’s “mental health”). Significantly though, the teacher responded by advising that “[V] seemed fine” when she returned to school the very next day.
His Honour’s decision reversed a long-standing arrangement, which had been confirmed by a consent order. This reversal came about without regard to the matters discussed above, and without reference to the factors in s 60CC of the Family Law Act 1975 (Cth), which must be taken into account. A proper consideration of the matter demanded careful examination of the best interests of the children. In my view, the failure to undertake this task and to instead focus on the children’s end-of-holiday wishes and the fact they had been attending a new school for a few weeks, constituted appealable error.
For these reasons, I also find merit in Ground 3.
Conclusion
It follows that I consider the appeal ought to be allowed.
Before moving to consider the re-exercise of the Magistrate’s discretion, I think it appropriate to record that it was unfortunate that his Honour described the behaviour of both parents as “appalling”. Neither counsel was able to draw my attention to anything that the mother had done to warrant this description. Indeed, the father’s experienced solicitor who appeared before the Magistrate properly described his client’s conduct as “reprehensible” and asked his Honour rhetorically “can you imagine the conversations that happened between the father and his solicitors about this sort of situation…?”
I consider the fact his Honour did not proceed on the basis that the father’s conduct was indeed “reprehensible”, while finding that the mother’s conduct was “appalling”, is further reason for the appeal being allowed.
Re-exercise of the discretion
After I heard argument on 13 June 2017, I announced that I intended to allow the appeal. At that time, the parties were awaiting a third report from the Single Expert, and it was felt by the parties that the re-exercise of the discretion should be undertaken only after it was published, given that some months had passed since the Magistrate made his decision.
My options were to remit the matter or to adjourn it back before me after the report was provided. Knowing the pressure of work in the magistracy, I decided to re-determine the matter. The further report was received as further evidence in the appeal at the resumed hearing, after which I advised I would try to give judgment urgently given the new school term is about to commence.
The Single Expert’s updated report
The Single Expert interviewed the family again in June 2017. He provided his report in the knowledge that the mother was pursuing her appeal about the recovery order application and that six months had passed since his last review.
The Single Expert said in his updated report (errors in original):
14.When I talked to [V] and [B] they effectively put forward the position that their father had given them the choice to stay and that in the circumstance when the crunch came, they knew that their father would support them. Therefore the fact that they would not return to the mother was implicitly supported by the father and [his partner].
15.At the risk of stepping into the Judge’s role of making a finding, essentially I see [the father’s] actions as breaching the Court Orders of where the children should live and to some degree, undermining the power base of both parents by allowing the children the opportunity to choose within the context of established court orders and arrangements. I believe he has created a self-serving history to justify why the children should not go back.
16.A redeeming feature of the father’s action has at least been to have the children return in the school holidays to the mother for a week which, to give him his due, has been better than the mother’s capacity to get some of the other children to visit the father in the holidays.
I endorse what the Single Expert said at [15] but find surprising the negative comment he made at [16] about the mother’s incapacity to have some of the children visit the father. The Single Expert had said in his earlier report that it was not realistic to bring about a change in the children’s views of their father. In particular, he had said that he would not recommend any attempts at making T see the father and his family until she is ready, and that S’s wishes should be respected. He had also referred to the fears some of the children had about their father keeping them, which could only have been reinforced by the fact he had not been made to return B and V.
In any event, under a heading “How are [V] and [B] doing?”, the Single Expert said:
[B]
18.In my discussion with [B] he described feeling happy living with his father. He reported that school is going better for him and his father appears to have enrolled him in … tutoring and [the father’s partner] is helping him with his homework. His attitude to school was more positive than on the two previous times I had seen him and I have been told, but did not yet see his school report, that he has done better this year than last year.
19.[B] has a girlfriend, while [14] is still on the young side for a serious girlfriend, it is evident that he is happy with her and this will obviously make a difficult factor to convince a [14]-year-old boy that he wants to come and live with his mother.
20.While the father indicated that he has moved off his parent’s farm, my understanding from talking to everybody is that this farm actually borders on the small town and [V] and [B] can go to the farm pretty well whenever they choose. Therefore they live next to the farm, not on it.
21.As touched on earlier, [B] said that when he decided that he wanted to stay he said that “dad said that you’re more than welcome to stay and we want what’s best for you. He said that he’d fight for me.” Therefore [B’s] position is one of making his decision with the support of his father.
22.[B] indicated that he is looking to go into a trade or an apprenticeship in the next year. He does not see himself staying at school.
23.While I believe that it was somewhat inappropriate that [B] was allowed to stay in the manner this has come about, in my opinion it is working for him and would be very difficult to change with a child of 14 years old.
[V]
24.I found it interesting with [V] that everybody I spoke to had a different version of things that [V] had said to them. To some degree I see [V] as a little unreliable in terms of comments and I suspect that she uses some drama to maximise position. Therefore she will be painting a more dramatic picture of the problems at home and school to [the father’s partner] and [the father] than was likely the case. However it fits with [the father’s partner] and [the father’s] views of the mother.
25.[V] likes living in [Town H]. She was quite extreme in how positive [Town H] was and how negative Perth was in terms of the virtues of the schools, friends, popularity, associations and so on. As touched on earlier, I felt her position was a little try hard.
26.I note that she has a horse. She says that she rides it most mornings and tends to it every day. This is on the grandparent’s farm but she can walk or ride her bike to tend to the horse. [V] feels happy in [Town H]. She indicated that she does miss being around the other kids but is also grateful that things are not as intense as they were with everybody in the house.
27.[V] said that when she goes home she does get picked on a bit about her decision to be with her dad. This is particularly from her siblings though she said “I ignore them”.
28.[V]’s view is that she really wanted to stay with her dad. She spoke about what she would like, which included some weekends in the term and normal school holiday time with her mum. She thought that three weeks at Christmas time might be too long to leave her horse.
29.Overall, [V] is a 12-year-old girl who is relatively immature for her age. The move appears to be working at this stage because she is being given the things she desires and particularly having her own horse available to her.
30.While I think that [V] would be better with her other younger siblings in Perth, the situation has been set up pretty well by her having a horse that she would be highly resentful if forced to move and I would predict that she, more than any of the other children, would likely be dramatic in how she deals with situations.
The Single Expert reported that he had spoken with [O] who is undertaking training in the Eastern States. Whilst she reported being in contact with her mother and her siblings in Perth, she was not in contact with her father.
The child S was said to be doing well at school and that while “things were going good with family” she had “cut off all communication with her father”. S told the expert that she was “disappointed” in not seeing B and V “more so [B]” and that she “felt awkward when they came up for the school holidays”. The expert said S “has a feeling of rejection and lack of acceptance by her father and his family and feels close to her mother. She has coped by taking sides with the mother and not seeing the father”.
While T was reported to be finding school “boring”, she “thought that things were good at home with her mum”. Nevertheless, the expert reported that “of all of the children, I think [T] is the one who is most in need of therapy and likely to have the largest impacts”.
In discussing his meeting with A, the Single Expert said that it was hard to get him to talk about his feelings and that A said he “did not want to make any decision”. Nevertheless, the Single Expert said that at this stage A appeared “to want to be with his mum but I would suggest that he could be swayed in whichever environment he is to go one way or another”.
The Single Expert said that, on this occasion, he found Y probably “the happiest I have seen him”. Y’s psychologist had told him that Y had not seen the father since last October, and has been happy at home and school.
The Single Expert continued:
42.… [Y] said that [in] … March 2017 his father had spoken to him on the phone and [Y] was anxious after the phone call and refused to go to school because his father was inviting him to the farm. I would suspect that he is fearful that if he goes to the farm his father will keep him. The father made comment to me about this from the last report and said it was crazy for the children to feel that he would “kidnap them”, however effectively by what he did with [B] and [V] it is likely to have reinforced [Y]’s views. While the father may well say the children did it according to their wishes, [Y]’s view is his siblings went down for a holiday and did not come back.
43.[Y] says that he wants to see his dad but expresses some degree of fearfulness. I am uncertain as to why the visits I had recommended up in Perth have not been taking place.
In discussing the parents, the Single Expert found the mother to be “quite sensible and grounded”, while the assessment of the father “showed a very high elevation on grandiosity (narcissistic) subscale” which the Expert interpreted as “likely to relate to being needy, attention seeking and dramatic”.
In discussing the impact of the dispute on the children, the Single Expert said:
53.For [B] and [V], on one hand, feeling their wishes heard will help them feel a sense of choice but on the other hand gives them a sense of power that they can override wishes of parents and orders of the court…
Later in his report, the Single Expert said:
61.[B] effectively wants to be able to do his own thing. He was quite keen to see his mother during holidays as long as it did not interfere with other aspects of his life, e.g. in the current school holidays he did not like the prospect of the long drive to [North Western Australia] and would rather have spent time with a friend rather than being with either mum or dad.
…
63. [V] lives with the father. She would like to come up in school holidays and also have some term time where possible.
…
65.[Y] was keen to be able to see his father, however we have a strong history of him having reactions around this situation and what he says and how he feels later have tended to fluctuate. He is however getting older and I do believe that him having some time with his father in Perth would be beneficial and then allow the prospect for trialling other things. It is critical however that if [Y] goes down to his father, the father does not act in an inappropriate way by keeping [Y] irrespective of what [Y] may be wishing for.
…
67.I have tried to outline the influences upon each of the children in the previous sections and the content particularly in regards to the maturity should give some sense of how much weight to put on the children’s views, however I have previously presented in conferences and made the statement along the lines of the greater the conflict, the less weight to be put on the children’s views and the greater the focus on what is best for them.
68.It was difficult to gain evidence of strong blatant influence by either parent. It was evident that the father’s interactions have given the children the belief that it was their choice despite court orders and a history in court. He also gave the explicit message that they were free to choose and that he would support them, therefore he creates the appearance that it is the children’s wishes but it has in my opinion influenced through [sic] the way the father dealt with it.
69.It is difficult to gain the level of influence that the mother has on the children’s views given that there was time historically when all the children would go to their father for holidays but this has changed especially as court has ramped up. The fact that some of the children are not seeing their father indicates that there is a problem, some of it to do with how the father deals with the children but the children’s behaviour is also of children who are hyper-aroused about subtle influences.
The expert next discussed other issues relating to influences on the children:
70.The problem with the father is that he lacks insight and is self‑serving in his approach, therefore nothing is really going to intervene with him. He believes he is acting in the best interests and does not see the consequences.
71.The father’s partner … has a negative view of the mother and as a result reinforces and aligns with the father. This is perfectly understandable but it reinforces the position.
72.Similarly, with the mother, the fact that the children are in the position they are in would suggest that there are times when they received influence from her. How direct and intense this influence is difficult to gauge as I did not pick up any specific markers but the behaviour of the children would indicate that not only is it a problem at the father’s end but there is a problem at the mother’s end. In light of the circumstances, it is quite understandable as to why she could not trust the father and that is going to make the situation worse, not better.
The Single Expert then considered the capacity of each parent to provide for the children’s needs:
73.Both parties are capable of meeting the children’s physical, social and practical needs. I am of the opinion that the mother is far better at managing risk with the children. I suspect the father has a lower level of supervision and the children have a greater degree of freedom and less accountability.
74.I see the mother is working hard to meet the children’s psychological and emotional needs; however I am not sure as to what degree of influence has come from her to create the situation with the children.
In discussing the impacts on the children of separation from parents, siblings or other significant people, the Single Expert said:
79.Essentially, all of the children are trying to get their needs met in different ways and I am not sure if there is a specific benefit in trying to highlight the strengths and weaknesses of the different combinations of separations. What I would say is what is critically important is the children have frequent and quality time with their siblings as best as can be arranged. I see the potential for all of the children to carry some psychological baggage from the dynamics of this childhood. The sad part where [B] and especially [V] is separated from their siblings is that they will grow apart, where twins for example have a potential to be each other’s best friends, they will grow up as less sisters than those who have been kept together.
When discussing possible therapy for the children, the Single Expert said:
82.I believe that [V] has the potential to be quite a troubled girl because of the way she has been dealing with experiences and would recommend that she has ongoing counselling with the hope that that can help ameliorate the later consequences of these disturbances. I am not satisfied that [B] would particularly benefit from any counselling at this time.
The Single Expert then gave his recommendations:
84.[B] at [14] in my opinion the arrangements are working well for him other than the separation from other family and while the way it came about was quite inappropriate, I would recommend that it continues. It is important that he spends time in each school holidays with his mother and especially with his siblings.
85.[T] is with her mother and not visiting the father. [V] is with the father but is visiting the mother. As 12-year-old twins I find this arrangement most concerning. Unfortunately, I cannot see [T] going to the father in the foreseeable future and I see that [V] would be quite resentful if separated from her horse. I also think that [V] likes being the centre of attention which she currently is and she only has to share two caring adults with one sibling as opposed to having one parent and having to share it with five siblings. Therefore, reluctantly I would say that she should continue in the current arrangement but needs to spend at least a week in each school holidays and three weeks over the Christmas holidays (perhaps not consecutive weeks). She also needs at least one mid‑term visit.
The Single Expert said O and S “are subject to their own wishes” and A and Y should continue to live with the mother and spend time with the father. He said A should not be allowed to choose where he lives until he is 14 and that Y should move toward having visits with his father during holidays but it was “critical” he be returned after all the visits.
Discussion
In determining whether to order the return of B and V to the mother or instead to vary the 2016 consent orders, I must regard the interests of the children as the paramount consideration. However, it would be erroneous to focus only on the best interests of B and V, and to ignore the interests of the other children who will remain with the mother until the trial.
In my view it is readily apparent, and of great significance, that the orders I make for B and V will have a profound impact on the other children, especially T and the younger boys. In making my decision, I therefore intend to focus as much on the interests of the children living with the mother as I do on the interests of the children living with the father.
I also cannot overlook the fact that the matter is listed for trial at the end of next month. While it might be thought this is a strong argument for not interfering with the current arrangements, it can also be argued that this is a factor supporting the making of an order enforcing the existing orders as there will be opportunity for a review in the near future. Thus, any upset B and V might feel from being required to leave their father’s home would potentially be ameliorated by knowing the matter will be reconsidered soon.
The reality, however, is that there is no guarantee the matter will proceed and be completed at the trial scheduled for late August 2017. As the List Judge, I know how often events intervene to prevent cases being heard and/or completed. As the case is listed for five days, and involves both parenting and financial issues, there is also a strong prospect that the judge will reserve his decision, and there can be no guarantee how quickly it will be delivered.
Another important factor is the conduct of the father, which was properly described by his solicitor as “reprehensible”. In taking this factor into account, I do not want to be seen as punishing the children for the wrongdoing of the parent, but rather as accepting these observations of the High Court in Bondelmonte v Bondelmonte (2017) 341 ALR 179 at [39]:
It would have been remarkable if the primary judge had not commented upon the father's conduct. It involved a breach of the 2014 parenting orders and it had the potential to undermine the possible relationships that family members might have in the future, a matter to which the processes put in place by the 2015 orders had been directed. Furthermore, the father’s flagrant disregard of the parenting orders was a matter relevant to the child’s best interests under s 60CC(3)(i). It evinced an attitude towards the responsibilities of parenthood that, if left unchecked, would likely send a poor message to boys who, on the evidence, were highly impressionable.
The father’s actions in not ensuring that the children returned to the mother after she had voluntarily allowed the children to visit him during the holidays sent not only a poor message to B and V, but also to their siblings who are troubled by the prospect that they too may be “taken” or “kept”. These fears may impact, for example, on Y’s desire to spend time with his father.
Although the father claims that he was complying with the children’s wishes, I am satisfied that had he exercised proper parental authority and encouraged the children to return to their mother, they would have done so. While the father pretended to be complying with the court order by telling the mother that she could collect the children, his entire conduct around that episode indicates that he had every expectation and wish that they would not return home.
The father also appears to have had no regard to the fact that his actions prevented B, who struggles with his studies, from returning to his school and prevented V from commencing at a new school with her twin sister and many of her classmates from her primary school. This was a prospect to which she was looking forward when first interviewed by the expert. The father’s willingness to hold over one of the twins could also have reinforced T’s perception that V is perceived by him as the “golden child”.
I recognise, however, that B is now over 14, and is a big boy for his age. He continues to perform poorly at school and it seems unlikely he will continue his education for much longer, other than perhaps at an agricultural school. Reluctantly, I accept the Single Expert’s recommendation that B should be able to decide whether he will remain with the father or return to the mother.
V is younger than B and somewhat immature. She has not had an opportunity to attend College W with her twin sister. Requiring her to return to the mother now will give her a chance to try out the school she was meant to be attending with her old classmates. This experience may provide important information for the trial judge when deciding the longer term future for V. Spending a term or two at a different school is not likely to cause any damage to her education and, in my view, could be beneficial.
If V continues to reside apart from her twin and other siblings, there will be an inevitable impact upon their future relationships as the expert predicted. Every effort should be made to prevent that scenario from unfolding. Bringing V back to live with her mother and siblings now will give her a chance to try out that arrangement again. There is at least the potential she will enjoy it.
In determining that it would be in V’s best interests to be returned pending the trial, I have had regard to the matters discussed above and to the matters in s 60CC, which were discussed in the written submissions. I have also had regard to the affidavits the parents filed in the appeal proceedings; however, these have not been the subject of cross-examination. Much of the evidence is self‑serving and, insofar as it purports to give evidence of the family dynamics, of less assistance to me than the expert’s evidence.
I accept, of course, that there is a real prospect V will be resentful and “act out” when told she must return to live with her mother, especially given her presentation when speaking with the Single Expert on the most recent occasion. However, the expert evidence is that the mother is competent and works hard to meet the children’s psychological and emotional needs. She can therefore be trusted to deal with V’s resentment. V will be better equipped to deal with her feelings if the father provides her with appropriate encouragement.
Senior counsel for the mother conceded it might be appropriate for only V to be returned, given B’s advanced years. In my view, if both children are allowed to remain with the father, a message will be sent, especially to the younger children, that they too can decide to live where they like, even if their wishes are based on a desire to ride horses, go surfing or whatever takes their fancy. They will do so knowing that their father will encourage and support them, even in the face of court orders. This would not be in their best interests.
An order requiring V to return to her mother will, theoretically at least, give the mother and the younger children some greater assurance that they will be safe in visiting the father without the risk of being kept. Such assurance will not only be for the benefit of the mother and the children but also ultimately for the benefit of the father in assisting to maintain relationships.
Although it is not a matter I take into account, an order requiring V to be returned, even with a trial looming, may send a message to the legal profession and their clients that the court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk. This should be of particular benefit in the many cases where children express a desire to stay at the end of their holiday visits with a loved parent.
On the basis of the information provided at the last hearing, I anticipate that at the time these reasons are delivered, B will be visiting his mother in Perth, while V and A will be with the father at Town H. My orders will allow the mother and B time over the weekend to discuss whether he wishes to return to the father next Monday as currently planned or to remain with the mother and recommence his schooling at College W.
The father must ensure that V and A are returned to the mother on Monday (as currently planned for A). It will be a test of the father’s parental capacity to see whether he is able to ensure they are delivered without fuss or bother. If his parenting capacity is such that he is unable to bring about that outcome, then a recovery order will issue and the father can explain to the trial judge why it was that he could not ensure that the children were returned.
I certify that the preceding eighty four (84) paragraphs are a true copy of the draft reasons for judgment of Justice Thackray delivered on 14 July 2017 (and settled in final form on 17 July 2017).
Associate:
Date: 17/7/17
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