Saunders & Byron (No. 2)

[2008] FamCA 759

FAMILY COURT OF AUSTRALIA

SAUNDERS & BYRON (NO. 2) [2008] FamCA 759

FAMILY LAW – COURTS AND JUDGES – Application for disqualification of judicial officer – Bias – Dismissed

FAMILY LAW – CHILDREN – Location – Warrant

APPLICANT: Mr Saunders

RESPONDENT: Ms Byron

FILE NUMBER: BRC 1631 of 2008

DATE DELIVERED: 7 July 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 7 July 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Clifford, GD Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Khushal, Bridges Family Law Specialists

INDEPENDENT CHILDREN'S LAWYER Mr Waller, Berck & Associates

Orders

1. Pursuant to Section 91B of the Family Law Act 1975, the Director-General, Department of Child Safety, is requested to intervene in these proceedings in relation to the children, D, born … August 1993, C, born … October 1994, and B, born … February 1998.

2. The Registry Manager is to notify the Director-General, Department of Child Safety, of this order.

3. Upon request from the said Director-General, Department of Child Safety, the Registry Manager permit inspection of the Court file by a person authorised by the Director-General, Department of Child Safety, and copying of any part of it to enable consideration of the request to intervene in the proceedings.

4. Notwithstanding the terms of paragraphs 4 and 5 of the Orders of the Honourable Justice Barry of 11 June 2008, the Mother take all steps necessary to ensure that the children, D and C, are informed that the Court intends to ensure that the said children are placed in the temporary care of their father by midday on Sunday, 13 July 2008 and to further inform the said children that, if necessary, the Court will issue a Recovery Order to secure their return to the Father.

5. The application is adjourned to 9.30 am on 16 July 2008 for further mention before the Honourable Justice Jordan.

6. Pursuant to s65DA(2) and s62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED THAT

1. It is the intention of the Court to issue a Recovery Order on 16 July 2008 in the event that the children, D and C, have not been returned to the Father.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1631 of 2008

MR SAUNDERS

Applicant

And

MS BYRON

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The matter raised by the mother is one of procedural fairness to the mother.  Her apparent concern being that, given I was the trial Judge and had made strong adverse findings against her and a decision to dismiss her application, that I may not be able to be balanced between the parties in these proceedings.

2. It is clear from a re-reading of my decision made on 25 November 2003 that I did, indeed, form very strong views about aspects of the mother's parenting and conduct in the time leading up to the hearing in that year.  Ms Khushal, who appears on behalf of the mother, in particular based her concerns, expressed on behalf of her client, that I may not be able to properly focus upon the presentation of the children at this time and, in particular, have proper regard to the fact that D is almost 15 and C is approaching 14, and take proper account of their wishes. 

3. In this case, some understanding of the history of the matter would enable the judicial officer hearing and determining the matter to better make assessments about the current circumstances of these children and what best meets their interests.  I am assuming for the purposes of these deliberations that the father continues to hold concerns that the current state of affairs has been brought about, at least in part, as a result of manipulation by the mother.  That theme emerges through the exchanges with Ms F, who recently prepared a family report.  I note from the submissions of the independent children's lawyer that he, at least, raises that as a possible continuing concern.

4. It seems to me that it will be necessary for the judicial officer to examine, firstly, what are the current wishes, apprehensions and concerns of the two older children, but also it may be necessary to examine what may be behind those presentations.  In those circumstances, it seems to me that it would either be necessary for the Court to re-examine aspects of the history or, alternatively, to take account of the reasons and the decision made in November 2003 as a way of avoiding a re-hearing on those matters, but having some understanding of the matter.  It seems to me that any other judicial officer would have regard to what was said in November 2003.  He or she would not be bound by those observations and findings, but would be entitled to have some regard to them.

5. As I said at the outset, given the number of cases that I hear, I do not have an independent recollection of the evidence and the cases in this matter.  A reading of the judgment does bring some of the matter back to me but, in large part, I am now reliant upon the written word which appears on the judgment, and largely I am, in that sense, no better off or no worse off, as it were, than another Judge who may, as part of his or her process, read that judgment and take it into account.  So in that sense, I am not satisfied that there is any significant prejudice to the mother, in that I am in much the same position as any other judicial officer.

6. Secondly, and in any event, whatever be my past views of the mother and her conduct, it is a fact that almost five years have passed.  The children are much older and issues, whilst they are similar to some of those raised prior to November 2003, are also new and different issues.  In particular, given that D and C are now almost 15 and 14 respectively, their stated wishes and expressions of concern necessarily carry much more weight than when they were eight and nine year old children in the previous proceedings, and I take the view that I am well and truly capable of identifying that difference and giving proper credence to it.  Of course, at the same time, I have indicated that it is incumbent upon me to look behind what is being said and look at the cause or causes of whatever presentation the children have, and it may be that I will take into account the history in assessing those matters and I think it is appropriate that a Court does so, but I start at least with an open mind.

7. In all the circumstances, I am not satisfied that it is necessary for me to disqualify myself from further dealing with this matter.  As a consequence, I now turn to the proposition that I am very concerned about the notion that a 14 year old boy and a 13 year old girl are, as far as the parties are concerned, and now as far as the independent children's lawyer and the Court are concerned, at large and either nobody knows about their whereabouts, which is an entirely unsatisfactory state of affairs or, alternatively, somebody does know of their whereabouts and is not informing the authorities and others, which is an equally concerning state of affairs.

8. It seems to me that the first thing I need to address is the means of ascertaining the whereabouts of the children and the Court has been informed that both police and the department have managed to contact these children and have made assessments of their current circumstances, so they therefore are aware of their whereabouts, and I find it troubling that information as to their whereabouts is being kept from the independent children's lawyer, in particular, and then the Court.  I can anticipate that the authorities are responding to what the children are saying in, as it were, not providing support for the authority and order of this Court and not placing the children with the father.  But the authorities and our Courts must work together in these children's matters and I am toying with the idea of having the independent children's lawyer contact both the department and the Police Department with a view of ascertaining whether officers of the department will disclose to the independent children's lawyer the whereabouts of the children, even if it needs to be initially on the undertaking of the independent children's lawyer not to inform either of the parties, but I am concerned about this matter just falling into a black hole.

9. I do not know, and I do not know whether anybody else knows, if these two children are going to school at what is, on the face of it, a difficult and critical stage of their life and education.  The prospect that they may not be attending school is very concerning and I think the question of their placement needs to be addressed urgently, and I am concerned, for example, about the prospect of the amount of time it would take to have the children located and interviewed and a further report prepared, and any psychiatric assessment of the parties undertaken.  We could be talking about days, weeks or even longer, and the education of these children could be very seriously compromised.  So I am concerned about leaving matters in abeyance or unresolved for some time. 

   RECORDED  :  NOT TRANSCRIBED

   ORDER DELIVERED

   RECORDED  :  NOT TRANSCRIBED

   ORDER DELIVERED

   RECORDED  :  NOT TRANSCRIBED

10. Well, one of the options that I am contemplating, at this stage, is issuing a warrant to have the police locate the children, detain them and forcibly take them to the father's house.  It is something, on the one hand, I am loath to do because it is a last resort, but it seems that, on a number of occasions now, the police and/or the department have located these children now and in the past and have ascertained that the children are not at risk in the father's care and that the department does not have any concerns about the children being in the father's care.  I am concerned that the Court made a decision on 11 June which determined where the children should reside and that, notwithstanding the fact that we are all bound by the law, we are facing a situation where a 14 year old boy and a 13 year old girl feel empowered to defy their father and to defy the authorities and to defy, in particular, the authority of this Court, and I am told that they are doing so without any influence from their mother to do so.  So if they are doing this without any encouragement from the mother, they are, in reality, taking the law into their own hands and that is a very unhealthy state of affairs which may call for drastic measures.

11. The other option is to await the recommencement of the school term to enable the father to attend at the school with a view of having the children return to him.  I am certainly not encouraging any serious scene or altercation at the school.  We do not want to bring the problems of this family to the school, but I am wondering whether - at least give the children and the father an opportunity, as it were, to put into effect these orders in a more civilised orderly way and, if that cannot be achieved, then enlist the services of the police to put the orders of his Honour into effect.  So that is one of the options.  Obviously, what I am contemplating is that it seems to me unconscionable - I understand that there is a suggestion that there may need to be further interviews and the like, but as unpleasant as the prospect is of having the police intervene, the effect of what I am being told at the moment is, nobody knows of the whereabouts of these children.  I could have a 13 year old and a 14 year old walking the streets of Brisbane of a night-time exposed to all sorts of harm, particularly what a 13 year old girl walking the streets might encounter.

12. I am troubled by the prospect of not doing anything at all, in the hope that one day these children might be located and may participate in an interview which may make some recommendations.  I think the need to bring these children in from the cold is the most pressing need.  They do not have a mother or a father who knows who they are living with, who knows the character of the people they are living with, who knows if they are or are not on the streets.  So I am wondering whether the lesser of all evils is, in fact, to issue warrants.

    RECORDED  :  NOT TRANSCRIBED

13. I am satisfied that the mother has available to her the means of establishing contact with the children directly or indirectly and I have little doubt that D and C have been and are capable of keeping in touch with one another if, in fact, they are not living with one another, and I propose to relieve the mother of her obligation not to have any contact with the children for the purposes of requiring, in fact, the mother to take all steps necessary to have D and C informed further of the Court's requirement that they return to live with the father for the time being, and to have them informed that, should they continue to defy the orders of this Court, then, inevitably, the police will become involved with a warrant directed to have the children arrested and placed in the care of the father.

14. The mother's contact is to be limited to that that is necessary, directly or indirectly, to have that information conveyed to the children, so that they appreciate that until and unless this matter is further investigated, they, like their parents, are bound by the authority of the Court and it would be far preferable that they return to the father's care, and I trust that even the mother would accept that, whatever be her reservations about the father, it is to be preferred to having her two young children at places and whereabouts unknown overnight with people unknown, or alone at night, which is a very, very frightening and worrying prospect where all types of very serious harm could come to these children, and that it is better that these children be with one of their parents than with strangers.  So I am both relieving the mother of her restraint on a limited basis and requiring of her the need to take all steps to make sure that those messages get through to the children.

    ORDER DELIVERED

    RECORDED:  NOT TRANSCRIBED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: