Reynolds and Sharpe - [2012] FMCAfam 594

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REYNOLDS & SHARPE

[2012] FMCAfam 594

FAMILY LAW – Children – father removed child from mother’s care in the Northern Territory – past child protection concerns – child to be returned to mother’s care.

Family Law Act 1975

Applicant:

MR REYNOLDS

Respondent:

MS SHARPE

File Number:

ADC 3433 of 2008

Judgment of:

Kelly FM

Hearing date:

26 March 2012

Date of Last Submission:

26 March 2012

Delivered at:

Adelaide

Delivered on:

26 March 2012

REPRESENTATION

Counsel for the Applicant:

Jenny Goodale

Solicitors for the Applicant:

Mellor Olsson

Counsel for the Respondent:

Susan Litchfield

Solicitors for the Respondent:

Susan Litchfield

ORDERS

The father deliver up the child [X] born [in] 1999 to the mother’s care to take place at the [omitted] Police Station at a time to be agreed on Saturday 7 April 2012.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and both children of the relationship [X] born [in] 1999 and [Y] born [in] 1996 attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia in DARWIN on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 16 July 2012.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the children and relevant family members;
(b)observed interaction between the children and the parties;
(c)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)the impact of parental conflict upon children as discussed by McIntosh & Chisholm (article provided);
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Magistrates Court.
Each parent is restrained from abusing or criticising the other parent in the presence of the said children.
Each parent is restrained from criticising or denigrating either child, from physically disciplining either child and from discussing the children’s future care arrangements with them beyond informing either child of the orders and arrangements made today and necessary to give effect to these orders.
The child [X] have regular telephone communication with either parent as agreed, with either parent at liberty to telephone [X] on her mobile telephone.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3433 of 2008

MR REYNOLDS

Applicant

And

MS SHARPE

Respondent

REASONS FOR JUDGMENT

Before the Court today is the mother’s urgent application filed on very short notice. Ms Sharpe is seeking the return of the child, [X] to her care following the father’s recent actions where he attended in the Northern Territory and removed [X].
This matter has an unusual and a troubling background. There is no dispute that [X], born [in] 1999, and her older brother, [Y], born [in] 1996, lived in the father’s primary care following on from the parties’ separation in 2008.
Consent orders were put in place confirming that arrangement and provided for the children to spend regular school holiday time with their mother and that occurred, at least to some extent. The parties disagree about the level of the mother’s commitment to spending time with the children over the intervening years.
In 2010 the situation changed dramatically when [Y], then aged 13 years, raised a number of serious allegations of abuse against Mr Reynolds and his partner.
Families SA were sufficiently concerned to remove the children from their father’s care, together with the child of his partner, Ms M. Initially [X] and her brother [Y] lived in the care of their maternal grandmother in South Australia while investigations and assessments were undertaken in the child protection sphere. At the time of the first child protection interviews in 2010, both [Y] and [X] were highly critical of their experience of life in their father’s care. Both children described a situation of physical and emotional abuse and neither child wished to return to live with their father at that time.
I note criminal proceedings were laid in relation to the allegations of assault against [Y]. Those criminal proceedings were eventually discontinued in the criminal courts. The child protection proceedings continued on and following a further update family assessment through Families SA, the children were sent to live in the care of their mother in the Northern Territory in July 2011. That occurred in circumstances where [X] was clear both prior to and during her assessment interview that she wanted to return to her father’s care.
Mr Reynolds concedes that [Y] struggled emotionally following on from the parents’ separation and missed his mother greatly. In that sense, he is unsurprised that [Y] is hostile to any notion of returning to his care. By contrast, the father considered his prior – and indeed, his current – relationship with [X] is much stronger and more secure, as indicated by her wish to return to his care.
The purpose of the children’s move to their mother’s care in the Northern Territory was really to see if there could be a stable parenting relationship established between them, given that neither child had lived with the mother for some years. It seems to have worked successfully for [Y] but the father argues it has not been a successful move for [X]. He says she has been unhappy in the care of her mother.
Unfortunately having put in place these arrangements the Youth Court proceedings were discontinued and the involvement of Families SA came to an end. That has left this Court in a difficult position. There is obviously a great deal of concerning information raised within the Child Protection sphere, none of which has been tested. The ongoing parenting arrangements for [X] will now to be determined through this Court and we are left to interpret the range of investigations and assessments that are now available, but which were not undertaken within the parameters of the Family Law Act 1975.
The father argues that Families SA were vehemently opposed to his role as primary caregiver without any valid reason. In those circumstances, he argues that this Court should not place too much weight upon the concerns raised within the Youth Court proceedings, particularly as the Department returned Ms M’s child to her care very early on in the process. While that is true, I think it is fair to say that this occurred in circumstances where that child was not making any allegations himself, whereas both [X] and [Y] were raising concerns at that time.
We now have a fairly typical situation where [X] when interviewed in 2010 at 10 years of age, and subsequently in 2011 at 11 years of age, has expressed very strong views initially highly critical of her father and subsequently highly positive about him. Her views regarding her mother were somewhat neutral in mid 2011, she not having experienced living in her mother’s care at that time. According to

Mr Reynolds, she is now highly critical of life in her mother’s care. However, it must be remembered that these views are reported following on from very alarming and dramatic circumstances, where the father recently removed [X] from the Northern Territory without the mother’s knowledge.
The Federal Magistrates Court proceedings were first listed in February 2012. No orders were made changing the earlier parenting orders at that time, but that was clearly in the expectation that neither party was intending to make any dramatic change to the children’s living arrangements pending further hearing. Not surprisingly, the Court had ordered the appointment of an Independent Children’s Lawyer and was awaiting their involvement.
The father says it is only following the discharge of the Youth Court orders that he has been able to re-establish communication with [X], to become aware of the extent of his daughter’s distress. It was her distress that led to him removing [X] in the way that he did.
The difficulty with the father’s position is that, as I have said, this is a child who has now apparently been highly critical of her experience in the care of each of her parents, at one time or another. It is a big step for the Court to assume that [X]’s version of recent life in her mother’s care is any more or less reliable than her version of life in her father’s care in 2010, which the father says is totally unreliable.
The mother concedes that [X] wishes are clear and she wants to remain living in the care of her father. However the actual ramifications of such a change cannot easily be assessed by a 12 year old child. It falls to the adults in her life and this Court, if need be, to assess all of the information available, within the parameters set out in the Family Law Act.
The father argues the Court simply cannot now return [X] to the care of her mother in circumstances where the child’s co-operation with her removal to South Australia indicate the depth of [X]’s unhappiness in her mother’s care. He says [X]’s complaints as conveyed to him raise real concerns about the quality of care being provided by Ms Sharpe. The allegations are certainly serious but again, in circumstances where we know [X] was missing her father, where she had very recently spent time with him for the first time in many months and where she has had the experience of being removed from her mother’s care by her father, the weight to be attached to these allegations is very uncertain.
The father’s actions have added an extraordinary level of drama to [X]’s situation and have exacerbated the difficulties confronting the Court in assessing what parenting arrangements will be in the children’s best interests, particularly [X]’s best interests at the present time.
I do not consider I can place any substantive weight upon [X]’s allegations about her mother’s care. There may well be issues surrounding the mother’s living/working arrangements that will be relevant to the Court’s decisions regarding [X]’s long-term living arrangements but these are matters that should be properly investigated through a full family assessment, particularly given the background of this matter. I do not consider it is a situation that can be properly evaluated in a one-off interview with [X] through a section 11F process, nor by a parent taking unilateral action.
The father urges the Court to give effect to his unilateral actions by allowing [X] to remain in his care. However I consider the Court should be working towards an outcome where [X] is able to maintain a steady and settled relationship with both of her parents – where both parents have a commitment to, and an involvement in her life and where both parents in fact demonstrate some respect for the role of the other parent in her life.
It may be that the allegations raised within the Youth Court proceedings may not be found to be proved when put to the test in this Court. It may be that [X] and [Y]’s sibling relationship is not as significant for these two children as would be the case in many other families.
It may well be that, at the end of the day, [X] does return to live in her father’s primary care in accordance with her wishes, once all other issues have been factored in and taken into account and that [Y] may well remain in his mother’s care, again, once all other issues have been factored in and taken into account.
What the Court would hope, of course, is that both children would then be able to maintain a meaningful relationship with each other and with their other parent. In that regard it is significant that the father appears to have let go of his relationship with [Y] at the present time, at least in terms of the orders sought in his initiating application filed in January.
Obviously Mr Reynolds should not be criticised for not seeking the return of [Y] to his care, but the fact he does not seek any involvement in his son’s life or put forward any proposals for re-establishing a relationship with [Y] is concerning. It is concerning also in terms of whether [Y] and [X] would be able to maintain a sibling relationship if they are living apart. Again, these are all matters that need to be properly considered.
My concern about simply arranging for [X] to be interviewed as a matter of urgency now is the high drama that surrounds her present circumstances. This is a 12 year old child who has packed up a bag of clothes and “snuck out” of her mother’s home, without her mother’s knowledge. She has effectively duped and misled her mother, with the connivance of her father. In such circumstances there must be some concern that many of [X]’s allegations about her mother may well have been tailored to convince her father to behave in a manner that he may not otherwise have been inclined to do.
If [X] is interviewed at this point in time, there is every chance that what will be heard, will be a very skewed version of her experience in her mother’s care – just as the father believes occurred during the children’s first interviews with Families SA in 2010. I can see no benefit for [X] in that occurring.
The question then is: “Should [X] remain in her father’s care now?” bearing in mind he has the benefit of an earlier order for primary residence, or should she be returned to her mother’s care at this time, effectively to ensure that her interim living arrangements are not dictated by the inappropriate actions of one parent.
This is not an easy decision. Frankly I cannot be satisfied that either option is guaranteed to be in [X]’s best interests at this point in time. However, I am absolutely clear that the present dilemma would not have arisen had it not been for the ill-tempered and ill-considered actions of the father in removing [X] in the way he did. His actions give me real concern about his capacity to demonstrate any insight into [X]’s best interests, or the need to ensure some stability for this child while the present parenting dispute is being resolved by this Court.
On balance, and with a considerable degree of caution, I come to the view that [X] should be returned to the care of her mother at this time. Having reached this decision however, I also consider this transition back to her mother should occur in a calm and measured manner. I am not going to condone a situation where [X] is simply “whipped” straight back to the Northern Territory immediately. I am concerned such an outcome would only serve to further ramp up the sense of drama and urgency about [X]’s living arrangements.
I conclude it would be preferable for [X] to be returned to her mother’s care in a relatively calm manner, perhaps in time for the forthcoming school holidays, so she can settle back into her mother’s care before recommencing school. The Court can then arrange for the child to be interviewed and for the whole family dynamic to be assessed through a proper family assessment process so that all of the factors and issues relevant to [X]’s welfare can be taken into account, with this process commencing in the not too distant future, but some weeks after her return to the Northern Territory.
Any outcome is going to bring some disruption to [X]’s schooling but I do not see that as a major issue in terms of the next week and a half or so. I also note that the Independent Children’s Lawyer has not even been appointed as yet, nor had an opportunity to express any views in the matter.
I now make orders as published at the commencement of these Reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Kelly FM

Associate:

Date: 18 June 2012