Rose and Barwon

[2009] FamCA 958

FAMILY COURT OF AUSTRALIA

ROSE & BARWON [2009] FamCA 958

FAMILY LAW – CHILDREN – With whom a child lives – Interim parenting orders – Where the Mother withheld the child after disclosures of harm in the Father’s household – Concerns investigated but unsubstantiated – Where the Mother fails to promote a relationship with the Father – Immediate return of the Child to the Father ordered
APPLICANT:	Mr Rose

RESPONDENT: Ms Barwon

FILE NUMBER: BRC 1372 of 2009

DATE DELIVERED: 26 August 2009

PLACE DELIVERED: BRISBANE

PLACE HEARD: BRISBANE

JUDGMENT OF: BARRY J

HEARING DATE: 26 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms McMillan, Solicitor of Journey Family Lawyers appearing for the Applicant Father

COUNSEL FOR THE RESPONDENT: Mr Hoskins of Counsel appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Neilson Stanton & Parkinson

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children, D born … March 2001 and T born … August 2002 live with the Father.

2. The children to be returned by the Mother or her husband to the Father by 8.00 pm on today’s date.

3. The matter to be listed before the Honourable Justice Barry at 10.00 am on

   
   

   27 August 2009 if the children are not returned to the Father.

IT IS FURTHER ORDERED THAT:

1. The proceedings be adjourned for case management review to 9.30 am on
   19 October 2009 at the Brisbane Registry of the Family Court.

2. Leave is given to the parties to inspect subpoenaed documentation with no copies to be taken without the leave of the Court.

3. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1372 of 2009

MR ROSE

Applicant

And

MS BARWON

Respondent

REASONS FOR JUDGMENT

1. I will give brief reasons for my decision.  I appreciate that I am only dealing with the matter on an interim basis.  I have a wide latitude in proceedings such as these under the amended legislation.

2. The parties to these proceedings are the parents of two children; D, born in 2001 and T born in August 2002.  The relationship between the parties commenced in about 1999. I gather, from reading Baumann FM’s determination in 2005 that the relationship was very much an on again/off again relationship with a number of separations.  The parties were very young when they cohabitated.  The mother was only 16 when D was born.

3. It appears common ground that they did separate in about 2003.  The mother then re-partnered with a Mr S.  It is obvious now, from what the mother tells the court, that T suffered quite severe bruising to his face around that period of time.  The mother at that time was very protective of Mr S and would not hear of any allegations that he was responsible for the bruising.  The matter was litigated. 

4. In the meantime, the Department of Child Safety removed the children from the mother’s care and an Independent Children’s Lawyer was appointed.  The matter went to trial.  There was a report prepared in 2005 by Mr M, a very experienced social worker.  Baumann FM heard the matter over a two-day trial.  The parties were legally represented and Baumann FM gave his decision and placed the children in the care of the father.

5. In the meantime, the mother made an allegation the father had sexually abused the child D.  The children were then placed with their paternal grandfather for a period of time. The allegations of sexual abuse were found to be unsubstantiated.  The children were returned to the father.  The father is in a relationship with his partner, Mrs Rose.  It is referred to these days as a blended family.  She had children from a previous relationship and now they have a child of their relationship.  They live in the O area where the father works as a plant operator.

6. The children have been at school in O in the father’s care from some time in 2005 up until February 2009.  They have been seeing their mother on a regular basis.  The mother was living in the Caboolture district.  It was convenient for the father because Mrs Rose had a child who was seeing her father in that area and they drove the children down together.  The mother then relocated.  She has re-partnered now with a Mr Barwon.  No criticism is made of Mr Barwon.  They have children.  Mr Barwon had children from a previous relationship. 

7. They relocated from Caboolture up to C [on the coast in the Maryborough area].  At that time the parties had a Legal Aid conference - early this year on 12 February, to be precise - and the parties, at that Legal Aid conference, reached an agreement and the terms of that agreement - the orders were signed by the parties and their lawyers and they were that the children were to reside with the father but it was to be a change of arrangements as to the time on each alternate weekend and the changeover - the place - for contact periods was to be a park at O and the father was to pay the mother $50 by way of travelling expenses, and there were various other orders agreed to.

8. I will briefly refer to the report of Mr M even though it was written several years ago.  I have read it.  Mr M interviewed the maternal grandmother.  The maternal grandmother had come in strongly on the father’s side around that time in 2005.  He quotes:

   “Whereas her wholehearted support had been for [the father] up until this point as detailed in her material she hesitated markedly over the question of future residence and did not provide a firm answer.” 

9. She expressed her position to Mr M:

   “If [the father] gets to win the application I get to see my grandkids.  If [the mother] wins, I won’t get to see them.”

10. It is obvious that the mother, at that point in time, in relation to the serious assault by Mr S, was an apologist for Mr S and the maternal grandmother, quite properly, was very concerned about those events.  Suffice it to say that Mr M made favourable comments about the stepmother in his report and, in effect, made a recommendation at paragraph 75 that the children be placed into the care of their father.

11. The matter went to trial before Baumann FM.  In paragraph 47 of his judgment he noted:

    “The mother has struggled to cope with the stresses thrown at her.  She has made poor choices.  As a result of her failure to act, supervise and attend to the needs of the children they have experienced hurt and pain.  I do not find that this was the intention of the mother, merely a most likely by-product of her parenting abilities.  Even though I hold concerns about how the mother will cope and adjust to my decision, I have formed the clear view that the best interests of the children are served by their residing with their father.  I will so order.”

12. That was in 2005.  Draft consent orders were prepared in February 2009.  On that weekend - I think it was Friday, 13 February - the children went to their mother’s home.  The child, T, then aged five, I believe, had a bump to his forehead.  The father gives an account in court to me today that the child had bumped his head in his bedroom and he told his father at that time.  I have to say the father looked me in the eye and gave his explanation in a most plausible fashion.  I called the stepmother, Mrs Rose, into court.  She gave very brief evidence in a plausible fashion.  Her account was not challenged.

13. It is obvious to me from what T has said to the family consultant, Ms E, that the little fellow really cannot be relied on as to any stories he is telling as to what goes on in the other household.  No reliance can be placed on that and any investigation by Police, Department of Child Safety, the Ombudsman, or anybody else, cannot take it any further or any better than that.  I note that Ms E very tellingly observed that the mother appears to have had this enormous shift in attitude from being under-protective of the child from harm caused by Mr S back in 2004/2005 to the situation now where, seemingly, she is over-protective.

14. The child gave an account that the bump was caused by the stepmother banging his head into a cupboard.  Whether the child was simply telling his mother what he believed she wanted to hear, whether he somehow had that suggestion put in his head, I do not know, but I am more than satisfied that it is highly unlikely that there was any such incident.  The mother has followed up her complaint to the police with a complaint about the Department of Child Safety investigation.  That matter has been referred to the Commission for Children for further inquiry. 

15. I accept the observation made by Ms E when she says the incident over the bump on the forehead has largely arisen because of a lack of communication between the parents.  The mother could simply have got on the phone and say, “How did the bump on the forehead occur?’  That is the sensible thing to do.  The father has had the primary care of the child for years.  The mother races the child off to the C Police Station and, without reference to the father, the child is subjected to this police interview. 

16. I note that the mother is saying that T’s progress at school is such that he may have to go to a Special Education unit.  She says that in the time that she has had T since February T has been diagnosed by a paediatrician at the regional Hospital with ADHD and suspected Asperger’s - all the more reasons why one would have serious cause to question statements made in the circumstances that they were made. 

17. I note the father has got a letter from the Department of Child Safety dated 3 March and they say they have made inquiries and they are quite satisfied there is no risk to the child in the father’s household.  I do not propose to order the child to have weekend time with the mother until the September holidays.  I am concerned at the pressure that may be brought to bear on these children if they remain in the mother’s household.  I am concerned that the mother has not done all in her power to promote a relationship between the children and their father. 

18. I have no doubt that, over the years, the father has certainly promoted a relationship between the children and their mother.  There has been ongoing contact.  The children have been delivered and they obviously have a good relationship with their mother and it is more to the credit of the father that he has done nothing to alienate the children from their mother.  The mother has made allegations in the past of sexual abuse that were clearly unsubstantiated.  I have noted from Mr M’s report the mother’s own history in that regard.

19. The mother has at times been alienated from her own mother.  She has had a troubled past.  One can extend great sympathy there.  I am not critical of her parenting.  I am simply saying that the incident of a bumped forehead in dubious circumstances is not sufficient for her to have engaged in the conduct she has of not returning the child in circumstances where it was contrary to court orders.

20. The situation is the matter came before Burnett FM on 23 February, 24 February, 26 February and 27 February at which time he transferred it to this court.  I note that in those proceedings on 24 February the mother filed an affidavit.  In that affidavit she says in paragraph 1:

    “[D] was crying and was scared that she would also get into trouble because she tried to drown [T] in the dam as requested by her father and stepmother.”

21. What a preposterous allegation to make, that this father who has fought for the children, cared for them, would be urging his daughter to drown his son. 

22. Paragraph 3:

    “The […] Police contacted Child Safety in […] and a file was drawn up with them.  The Child Safety Officer, [Mr I], was then informed that the police would be laying charges on [the stepmother] of assault occasioning bodily harm, case number such and such.  It was on both their suggestion that I do not hand the children back as they found the children would be at high risk of more abuse with the understanding that I would be contravening court orders.”

23. The police have not charged the stepmother.  The view that I take is I have had the opportunity of hearing from Ms E.  I have assessed the father and the stepmother.  I have read the background material in this matter.  I am prepared to find the children are not at risk in the father’s environment and I propose to order the immediate return of both children to the father.

24. I propose to order that no later than 8 o’clock tonight the children are to be handed over to the care of the father by the mother or her husband.  That order can be transmitted to Mr Barwon by telephone.  The matter is to be listed before me at 10 o’clock tomorrow if the children have not been handed over this evening.  I adjourn the matter to 19 October for further mention.  I realise these are interim hearings.  The subpoenaed documents can be inspected by that time.  I give leave to the parties to inspect the subpoenaed documentation, no copies to be taken without the leave of the judge and I will review the matter at that time.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  26 August 2009