Stokes and Voss and Ors

[2007] FamCA 415

FAMILY COURT OF AUSTRALIA

STOKES & VOSS AND ORS [2007] FamCA 415

FAMILY LAW - CHILDREN - With whom a child shall live - Magellan - Children recovered after removal interstate by mother - Interim - Parenting orders - Further family report

Family Law Act 1975 (Cth)

APPLICANT: Mr Stokes

FIRST RESPONDENT: Ms Voss

SECOND RESPONDENTS: Mr Easton and Ms Sexton

THIRD RESPONDENTS:  Mr Pearson

FOURTH RESPONDENT  Ms Baker

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: MLF 2143 of 2005

DATE DELIVERED: 30 March, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 30 March, 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kovacevic

SOLICITOR FOR THE APPLICANT: Reale Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Weston

SOLICITOR FOR THE FIRST RESPONDENT: Perry Weston

COUNSEL FOR THE SECOND RESPONDENTS: Ms Reale

SOLICITOR FOR THE SECOND RESPONDENTS: Reale Lawyers

COUNSEL FOR THE THIRD RESPONDENT  Ms Dellidis

SOLICITOR FOR THE THIRD RESPONDENT         Cathleen Couridon

THE FOURTH RESPONDENT  In person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Hooper

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: McGregors

Orders

1. That the further hearing of all extant applications be adjourned before the Hon. Justice Bennett and the Magellan Registrar at 10:00 am. on 11 May, 2007.

IT IS ORDERED BY CONSENT

1. That Ms Baker have leave to intervene in these proceedings and be named as the fourth respondent.

1. That a family report be prepared by Ms W regarding the time to be spent by the child H born in February, 1995 with any of the parties in these proceedings.

1. That all parties do all things necessary to facilitate the preparation of the said report, including attending for interviews with Ms W on Tuesday 10 April, 2007, and ensuring both H and S born in January, 2000 are produced to the child minding centre at the Court at 10:00 am. on that date. 

IT IS FURTHER ORDERED

1. That until further order H live with the fourth respondent, Ms Baker.

1. That until further order S live with the father.

1. That until further order the mother spend time with H and S at an accredited contact centre, on a supervised basis, at times and on days nominated by the centre and the parties forthwith do all things requested of them by the independent children’s lawyer and the director of any centre to which application is made in order to facilitate the implementation of H and S’s time with the mother pursuant to these orders.

1. That until further order the children spend such time with each other and with the father, second respondents and third respondent as may be agreed between the fourth respondent, father, second respondents and fourth respondent.

1. That until further order the mother be and is by herself, her servants and agents, prohibited and restrained from contacting and/or attending any school, mental health service, counselling agency or other specialist service attended by H or S unless her attendance is specifically requested by such school, service or agency in writing and prior to any such attendance the mother must provide a copy of the written request for her attendance to the independent children’s lawyer.

1. That a sealed copy of these orders be served by the independent children’s lawyer (by ordinary prepaid post) on :

   (a)the principal of the school or schools attended by H and S;

   (b)CAMHS and any other mental health services attended by H and/or S;

   (c)each other counselling agency or other service which H and/or S currently attend or attend hereafter;

   (d)Department of Human Services.

IT IS DIRECTED

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, 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.

2. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

AND THE COURT NOTES :

1. The applicant is the mother of H and S.

2. The respondent is S’s father.

3. The second respondents are S’s paternal grandparents.

4. The third respondent is H’S father.

5. The fourth respondent is S’s paternal aunt.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2143  of 2005

Mr Stokes

Applicant

And

Ms Voss

First Respondent

And

Mr Easton and Ms Sexton
Second Respondents

And

Mr Pearson
Third Respondent

And

Ms Baker
Fourth Respondent

Independent children’s lawyer

REASONS FOR JUDGMENT

1. This matter has a complex history, rehearsed in earlier judgments.  The parties separated in December 2004.  They have one son, S, who was born in January 2000.  The mother has another child, H, who was born in February 1995.  H’s father is Mr Pearson, who is now a party to these proceedings.  His evidence is that H was very, very young when he and the mother separated and he has not seen H since 1999.  Mr Pearson has another son, B, who is eight;  B has been in his care for the last four years, pursuant to a Department of Human Services placement.  When the matter was previously before the court, Mr Pearson was not a party.  Nor was Ms Baker, who is S’s paternal aunt.

1. The matter was listed before me for trial in January this year.  On the first day of the trial, an order was made for an updated report from Ms W, the family consultant who prepared earlier reports.  She saw the father with S and made an oral report;  it was transcribed and made available to the parties.  The matter was then stood down.  Sometime later, the court was asked to make interim orders, by consent of all parties, providing for a phased-in regime of contact between the father and S.  Pursuant to those orders, S was to spend time with his father for the first time on the following weekend.

1. The evidence before the court (referred to in an earlier judgment) is that when the father arrived to collect S that weekend, he was not at the police station which was the agreed collection point.  Subsequently, the independent children’s lawyer learnt the mother had left her home, having emptied it of belongings, and disappeared around midnight on the Friday evening, taking S and H with her.  Police, and then the fire brigade, were involved, breaking into the home and making enquiries of neighbours and schools.  Subsequently, this court made orders for the recovery of both children and, in due course, for the publication of information about them.  The mother and two children were eventually discovered in South Australia, and recovered;  interim orders provided that on their recovery both children spend time with the father.  That, in very brief compass, is the background to this matter.

1. After recovery, S settled with the father but H did not.  This is unsurprising, given the evidence filed for the trial.  Arrangements were made for him to move to live with the father’s sister and her family.

1. The independent children's lawyer proposes that, in the interim, S remain living with his father, and H remain living with Ms Baker.  It is a very generous thing that Ms Baker has done.  She has three children of her own, one of whom is 13.  Her evidence is that all the children are getting on well and H is becoming close to her 13 year old.  She has enrolled H in school;  he is playing soccer;  he is taking part in a range of activities routine of boys of his age.  S and H are seeing each other, though presently living in different homes, and the father, his sister and his parents all live close to each other.

1. The independent children's lawyer's submission is that if there is to be any contact between the mother and S and H, it should be at a supervised contact centre.  It is put that there is an unacceptable risk that the mother will again remove the children, rather than face the potential for the Court to make a determination which may not be in her favour.  Further, it is put that, without the constraints of supervision, she is likely to speak to the children in ways which will be destabilising and destructive. 

1. The father agrees with the independent children’s lawyer’s position.  In addition, he seeks an order restraining the mother from attending at S’s and S's schools, and at medical and other agencies attended by them. 

1. At the time Mr Pearson prepared the material filed with leave today, he sought that H live with the mother, “if that were deemed appropriate”.  Only today, as I understand it, has he had some access to the voluminous material on the file, including family reports and psychiatric assessments.  I am not sure if he has yet had access to any of the material on the departmental file.  Understandably, he is not in a position to put forward any informed long term position.  He would like to spend time with H as agreed between him and whoever has H’s interim residence.  He would like to be part of the ongoing family reporting process.  Having done that, he can then make a decision about the role he feels it would be best for him to play in H's life.

1. The paternal grandparents supports the father's position

1. On behalf of the mother it is put that everyone’s focus is on punishing her for what counsel called her impulsive act, rather than on the children's best interests.  In a forceful submission it was put that both children should be immediately returned to her.  If S is to stay with his father, at the very least H should be back with her, the father and his family having no biological connection with him.  If there is a need for supervision it should be supervision by Aiding and Caring;  if contact is to be at a contact centre, there could be a delay, it is put, of some four to five months. 

1. I make it absolutely clear that the case today has nothing whatsoever to do with punishing the mother.  It is not about the price she should pay, to use the language of counsel.  It is not a question of whether “she has been punished enough”.  If contravention proceedings are heard and proven, sanctions will be considered in those proceedings.  At this stage the focus of the court is solely and squarely on the children's best interests.

1. Both children have had significant problems.  S suffers from selective mutism.  Interestingly, when he saw his father with Ms W when the trial was stood down, and having not then seen him for a very long time, he chatted readily with his father;  he was not mute when with him.  Both boys have behavioural and emotional problems.  One cannot always attribute responsibility for such problems.  That issue will be explored in the trial and findings made, based on the expert evidence and other evidence then available.

1. In my judgment, the cavalier way in which these children were removed from their settled environment makes it impossible to make the orders sought by counsel for the mother.  This was not an impulsive act, leaving a fully furnished home and running off in a momentary panic;  it was an organised departure, in flagrant disregard of obligations under orders made with her consent only a few days earlier.  I am not satisfied that either of these children could be protected from abduction if contact was supervised by an Aiding and Caring worker.  Those who work for agencies like Dial an Angel and Aiding and Caring are often very well qualified and invariably responsible.  But they are not police members.  They cannot stop precipitative action by determined people, nor is it their role to do so.  In my view, the only way these children can be protected in the interim is for their time with their mother to be closely supervised. 

1. In the short term I am satisfied the orders proposed by the independent children's lawyer should be made.  I do propose to make an order for a further report, which will involve all of the parties to the litigation.  There will also be an order that, until further order, the mother be restrained from attending at or in the vicinity of any school, clinic or other service or agency attended by S or H save pursuant to a request in writing from, respectively, the principal of the school, or director or other person in charge of the medical or other agency with whom the children are involved.  I make it clear that if those involved in a child’s care think that his mother needs to be present at appointments, she is to be there;  that is a matter for them.  But prior to such attendance a copy of the written request is to be provided to the independent children’s lawyer.  

1. The case will otherwise be adjourned to 11 May, 2007.

I certify that the preceding
15 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as STOKES & VOSS