Sawyer and Clancy (No.3) - [2012] FMCAfam 1467

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAWYER & CLANCY (NO.3)

[2012] FMCAfam 1467

FAMILY LAW – Application for recovery order in respect of child aged 10 – reasons delivered ex tempore due to urgency of situation – proceedings adjourned to allow the court to provide more extensive reasons.

Applicant:

MR SAWYER

Respondent:

MS CLANCY

File Number:

ADC 427 of 2010

Judgment of:

Brown FM

Hearing date:

7 December 2012

Date of Last Submission:

7 December 2012

Delivered at:

Adelaide

Delivered on:

7 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms Read

Solicitors for the Applicant:

Boril Olds

Counsel for the Respondent:

Ms Lee

Solicitors for the Respondent:

Franklin Legal

ORDERS

I order that:

The children, [X], born [in] 2000, [Y], born [in] 2002, and [Z], born [in] 2005, be independently represented in these proceedings and, to this end, the Director of the Legal Services Commission of South Australia is requested to make urgent arrangements for the representation of the aforesaid children.
The proceedings be adjourned to 14 December 2012 for extended written decision, with the decision to be delivered at 2.15 in the afternoon.
Pending delivery of judgment and until further or other order, the mother return the child, [Y], to the care of the father at 6 pm this day within the foyer of the [omitted] Police Station.
An injunction issue and the mother be restrained from removing any or all of the children from the father’s care and coming within 100 metres of the children’s respective schools during school hours when the children are attending school or within 100 metres of the father’s home.
The orders of 10 August 2011, whereby the parties are to share parental responsibility for the children and for the children to spend time with their mother, are suspended.
If the mother fails to comply with the order for the return of the child, a recovery order issue and officers of the Australian Federal Police and the police force of South Australia are directed to attend and recover the child and deliver him to the father at a location to be agreed between the police and the father.

IT IS NOTED that publication of this judgment under the pseudonym Sawyer & Clancy (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 427 of 2010

MR SAWYER

Applicant

And

MS CLANCY

Respondent

REASONS FOR JUDGMENT

Introduction

The matter of Sawyer and Clancy is listed before me today. The parties to the proceedings are Ms Clancy and Mr Sawyer. They are the parents of three children: [X], who was born [in] 2000; [Y], who was born [in] 2002; and [Z], who was born [in] 2005.
The parties have been involved in court proceedings, in respect of care arrangements for the three children, since February of 2010. For reasons which I will come to in a moment, I am going to adjourn these proceedings for decision on 14 December 2012. The reason for that is that the history of the matter is a complicated one and I wish to refresh my memory about it.
The proceedings began when Ms Sawyer, as she then was, was in [B] with the three children concerned and an application was made by

Mr Sawyer for the children to be returned to [T] in South Australia where they had lived for a significant period of time.
Thereafter, there has been perhaps almost unceasing litigation between the parties and various outcomes have occurred. Initially, an order was made for the mother to return from [B] to South Australia, with the children, and in the eventuality she elected to remain in South Australia that the children live predominantly with her.
The mother decided to so return and a trial of the matter was fixed, which included a relocation aspect. However, around about the time of the first trial, it was agreed between the parties to adjourn the trial and for the children to be cared for in what is called a shared care arrangement. It was hoped that this would provide a mutually satisfactory outcome.
From the father’s point of view, it proved to be unsatisfactory and there was a lengthy trial which resulted in orders being made on 10 August 2011. Prior to those orders being made, there was a family report process and Mr R, the report writer, visited both of the parties’ homes on, I think, three separate occasions at least.
He interviewed each of the children in some detail in each of their homes and he recommended that the children should live predominantly with their father but see their mother regularly.
At that stage, in 2011, Mr R, I think, was satisfied that there was a strong relationship between the children concerned and their father and, indeed, with their mother. But Mr R was concerned about the poor relationship between the parties.
I published a fairly lengthy decision on 10 August 2011 justifying the orders that I made that. That decision was not subject to appeal and the orders, as such, must be accepted therefore as being the orders that are in the best interests of the children at this stage.
Regrettably, that decision did not end the controversy between the parties and in February of 2012 the proceedings returned to Court on an application by the father for a recovery order. It was his position that the mother was retaining [X] in breach of the August 2011 orders.
I have dealt with that application and I think, again, the reasons I provided at the time have been transcribed and released, although I am not sure about that. Anyway, [X] had injured her foot when a horse stepped on it.
It was asserted that [X]’s foot had been fractured. That turned out not to be the case but there was some bruising, I think, from memory. At any event, I was satisfied that it was an accident and it could not be viewed as Mr Sawyer’s fault or as a result of his neglect of the child.
Although I cannot be sure, I suspect Ms Clancy is not accepting of the decision that was made in August of 2011. That is not unsurprising, because she was vehemently opposed to the children living predominantly with their father and it has long been her position that he is a person with issues to do with alcohol and who has a violent disposition and a poor temperament to parent children of the ages of [X], [Y] and [Z].
[Z] is a child who suffers from haemophilia. It is the mother’s position, and it has been the position throughout, that she is the parent who manages [Z] haemophilia, which requires constant medical intervention for prophylactic purposes. It is her case that Mr Sawyer is not able to manage [Z]’s haemophilia and, as a result of that, he has always been at significant risk when he is in his father’s care.
Anyway, in tandem with her retention of [X], which, as I say, I dealt with when I directed that the child return to the father’s care, the mother has commenced a process of contravention, essentially saying that the father has contravened the elaborate orders I made dealing with [Z]’s haemophilia and how his medical condition should be dealt with.
I have heard the mother’s evidence about the contravention and it is the father’s position that, having heard the evidence, which he would categorise as contradictory and unreliable, that there is no case to answer for him in respect of the contravention.
For a variety of reasons, I have not dealt with the no case to answer submission, which remains outstanding and, since that time, regrettably other things have happened which have overtaken that aspect of the case. It is also the position that the parties have competing applications in respect of the settlement of their matrimonial property affairs, although my recollection is that neither of them are in a strong financial position.
It is now the mother’s position that the orders of 2011 should be revisited and all three children should live predominantly with her. The father’s position is that the children should live with him and it is his position that, as a result of the mother’s lack of acceptance of the regime she should only have the most limited time with the children concerned.
The current crisis which brings the parties to Court, centres on what happened about a month ago in November. The mother’s position, in essence, is that [Y] asked to spend some more time with her. There was some sort of altercation about that and [Y] decided that he would come with his mother.
The father essentially says that the child has been kidnapped. At any event, since that time the father has not had any direct interaction with [Y] and [Y] has been taken by his mother, firstly to see a GP and, more recently, a psychologist. The mother’s position is that [Y] is traumatised as a result of his father’s poor parenting, which is demonstrated by excessive alcohol consumption and violence.
It is the father’s position that the mother has fabricated these concerns and has exercised self-help in respect of keeping [Y] to satisfy her own aims in these proceedings.
I am not in the position to make any concluded finding of fact about what happened in November at this stage, because the parties who know what happened are the father and the mother. At this stage, they have given their respective versions in their affidavits but those affidavits have not, as yet, been tested to any degree.
[Y], himself, has not been interviewed by any independent person, and I will come to the psychologist to whom the mother took him in a moment, so his views about things have not been formally canvassed.
It is the father’s position that the oldest child, [X], who is going to be 13 on her next birthday in February, has not seen the mother since May. The mother disagrees with that. It is the father’s position, I think, essentially that [X] has tired of what she sees as her mother’s destructive behaviour and has decided that she will withdraw from her mother.
So [Z] has been separated from [Y], as has [X], since November. More recently again, in the lead up to these proceedings, there was what seems to have been an unpleasant altercation at [Z]’s school regarding whether [Z] was to go with his mother or his father and, indeed, there seems to have been an allegation that Mr Sawyer has attempted to remove [Y] from his school, it being the case that [Y] has not been going to school regularly.
The doctor to whom Ms Clancy took [Y] is a Dr V who practises in [omitted]. Mr Sawyer is critical that the mother chose to take [Y] to a person who is not his normal GP. I have been provided with what is called a GP Mental Health Care Plan in respect of [Y] and he is described as suffering from mixed anxiety and depression.
Also, in terms of a risk assessment, he is described as having fleeting suicidal ideation. In terms of the personal history which was allegedly taken from him, he is reported to have said “Dad has been verbally abusive when he is drunk”. [Y] is said to have run away from his Dad’s house to live with his Mum. That was the background to [Y] being referred to a psychologist, Mr M.
Although the orders of August 2011 require the parties to consult with one another about any psychological intervention in respect of the three children, it is clear that the mother took [Y] to the doctor and then to the psychologist independent of Mr Sawyer. Mr Sawyer is concerned that the mother will have orchestrated [Y]’s presentation with the doctor and ensured that a referral was made to a psychologist.
Mr Sawyer now seeks the return of [Y] to him. His application was listed last week on Tuesday. The mother, at that stage, had not filed any material and want to adjourn the proceedings. Against vociferous opposition from the father’s legal adviser, the proceedings were adjourned until today, so that the mother could put material before the court.
I was told, from the bar table, that the child was suicidal and in these circumstances, I formed the view that I was duty bound to allow the mother to get whatever evidence was available in respect of what was a very serious allegation.
At that stage, I also made an order pursuant to section 69ZW of the Family Law Act, requesting that Families SA provide any information they had about the children concerned, particularly [Y], who was said to be suicidal.
As a consequence of this order, I obtained a brief email from Ms H, who is the Magellan co-ordinator at Families SA. Essentially Ms H indicated that the department was concerned that Ms Clancy was intent, and had behaved in a way that indicated, that she wanted to involve Families SA and also the South Australian Police in a campaign against Mr Sawyer.
So, at this stage, it seems to me that there is a very poor relationship between the parties. They are each mutually critical of the other’s parenting ability.
It is also clear, that in August of 2011, I formed the view after a hearing that Mr Sawyer was better placed to parent these three children and, thereafter, there has been a string of applications and complaints about the father’s parenting of the children. But it is also clear, I think, that Families SA have not intervened to remove the children from the father’s care.
The father acknowledges that he has lost his driver’s licence as a respect of a drink driving conviction in August 2012 with a reading of .13. He was disqualified for nine months. That does him no credit. The mother points to that and says that that indicates that Mr Sawyer does have an issue to do with the overconsumption of alcohol. Well, it may do. I do not know the circumstances of the conviction.
It is clearly serious. It is potentially life threatening, both for Mr Sawyer and any other road user or any passenger in his vehicle, but I do not know what was the involvement of the children in the incident, if at all. It does him no credit but, at this stage, I think it would be imprudent of me to conclude that because he has got a drink driving conviction he is an abuser of alcohol on a regular day to day basis. I do not know.
It is also asserted that the father has driven his motor vehicle at the mother with intent to do her serious harm. The mother says that the police are proceeding with that charge which, if Mr Sawyer is convicted, he is likely to go to prison because it is a serious indictable offence.
The father’s position is that he believes the charge will be withdrawn and there is nothing in it, other than it is another example of the mother complaining about him and trying to enlist the authorities in her never ending campaign, as it seems to him, to remove the children from his care.
When Mr M was asked by the mother’s solicitor to provide a report – and he did that on 29 November 2012 – he saw [Y] on 28 November 2012 and the two had a 50 minute appointment. One of the things that is interesting about the scheduling of that appointment was that it occurred after the adjournment of the proceedings and, as I say, I was concerned about the assertion that it was said that [Y] was suicidal. I was concerned because I am satisfied that the relationship between the parties is such that it is likely to pose a psychological threat to the wellbeing of the children concerned.
But, in the GP Mental Health Care Plan, and the evidence that has been provided by Dr V, I do not know precisely what the suicidal ideation was. That is, what did [Y] actually say? At any event, it is described as fleeting. In terms of suicidal intent, the answer is no. So this child is not suicidal. He has said something, which I do not know, of a fleeting nature about suicide. Mr M saw the parties after the first mention of the matter. Whether that is accidental or it was hoped that this report would buttress the mother’s case, I am not sure. But, in any event, it is clear that the mother did not ring up Mr Sawyer and say “[Y] has been saying this or that. What should we do about it?”
Mr M, of course, was potentially in a difficult position because he had heard and received information only from [Y], who is 10, and from his mother. And his mother, at this stage, is not likely to be objective, I think, about Mr Sawyer.
Anyway, Mr M indicated that he had to be guarded in providing any long term prognosis or diagnosis. He indicated that he had limited historical information only from the mother and [Y]’s self-report. He said collateral information was unavailable to him and, by that, I take it he means he was not able to fact check anything that was told to him.
[Y] was described by Mr M as having a mood within normal limits with appropriate effect. He also spoke of the recent difficulties he had experienced apparently with his father, without obviously distress. His account of what happened when he left his father care was described as fairly vague.
Notwithstanding all these matters, it was clear that [Y] had not been to school for two weeks and Dr V has apparently provided a certificate to this effect. The child also described having nightmares about his father coming to abduct him.
Mr M recommended that the child would benefit from having a stable environment where he feels safe and a predicable routine whilst he has experienced heightening anxiety in response to recent events. I agree with that. [Y] will benefit from having a stable environment where he feels safe and where he has a predictable routine. Obviously the child has not had a predictable routine since November.
When Mr Sawyer received a copy of the report, of his own initiative, he wrote to the psychologist concerned, and Mr Sawyer has done such things in the past in terms of filing his own applications with the Court and there is now a further report from Mr M who reiterates his recommendation that there should be a comprehensive psychological assessment in respect of [Y], and I agree with that also.
I am gravely concerned about the current situation and, in my view, something has to be done to short circuit the conflict between the parties.
On the basis of the evidence available to me, I do not think it would represent an unexceptional risk for [Y] to be returned to his father’s care. I am concerned that [Y] has been separated from his siblings, [Z] and [X], with whom he has grown up.
I am also concerned that it is undesirable for there to be what is, in effect, a Mexican standoff in respect of the children, with [Z] being kept from school so he is not taken from school, and the same thing happening in the other camp in respect of [Y].
Clearly it is the case that the children need to be independently represented so that they can be protected from the worst aspects of their parents’ relationship with one another.
I intend these remarks to be preliminary remarks because the decision that I have made is a controversial one and I reserve the right to add to these reasons for judgment in writing. As I say, the history of the parties is a complicated one and has been evolving over the last two years. It is regrettable that I am still not able to finalise the contravention proceedings.
Having determined that the father does not pose an unacceptable risk to [Y], but on the other hand there is a risk, not only to [Y], but the other two children of this current impasse continuing, it must follow that the children live in the same household and that must be the father’s household. I will order that the child return to the father’s care today.
It also seems to me necessary to take the extreme step of suspending the mother’s time with the children, at least in the short term, to provide some form of emotional airlock for the children. In order to prevent any further unseemly incidents at the children’s school I am going to injunct the mother from either removing the children from the father’s care or going to their school or the father’s home.
For these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:

Date: 7 December 2012