Surry and Surry

[2018] FamCA 948

FAMILY COURT OF AUSTRALIA

SURRY & SURRY [2018] FamCA 948

FAMILY LAW – CHILDREN – where final judgment was reserved in August 2018 – where interim orders were in place for children to live with the mother and spend supervised time with the father – where an urgent application has been made by the father for the children to live with him following concerning behaviour of the mother reported by police – Recovery Order made ‑ interim order made in the best interests of the children for the children to live with the father.

Family Law Act 1975 (Cth) s.60CC
APPLICANT:	Mr Surry

RESPONDENT: Ms Surry

FILE NUMBER: BRC 12807 of 2016

DATE DELIVERED: 7 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 7 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D Wardle (for part)

SOLICITOR FOR THE APPLICANT: DME Law

THE RESPONDENT APPEARED IN PERSON

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER

Ms A Smerdon

Legal Aid Queensland

Orders

1. That on the oral application of the father and as a result of recent events, the proceedings before the Court are re-opened.

2. That the children, X born … 2007 and Y born … 2010, live with the father.

3. That the Father be permitted to engage Ms B, psychologist, immediately to provide therapeutic counselling for the children.

4. That the children immediately attend C School from Thursday 9 November 2018.

5. That the mother be restrained and an injunction issue restraining the mother from:

   (a)contacting the children by telephone or by other electronic means unless it is facilitated and initiated by the father; and

   (b)seeking to contact or remove the children from the father’s care or the children’s school.

6. That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)to find and recover the children, X born … 2007 and Y born … 2010 and to deliver the children to the father at D Street, Suburb E in the State of Queensland, or such other place as the father and the person effecting such recovery agree to be appropriate; and

   (b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

7. That this Recovery Order remains in force for a period of one (1) month.

8. That the mother, her servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from the father’s care until further order of the Court.

9. The mother file and serve a Response to the father’s Application in a Case filed 2 November 2018 supported by an Affidavit by 4pm on Tuesday, 21 November 2018.

10. That the matter be adjourned to 9:30 am on 23 November 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Surry & Surry has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12807 of 2016

Mr Surry

Applicant

And

Ms Surry

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. In June 2018 I completed hearing a parenting case involving two young girls, X, now aged 11 ½ and Y, now aged 8 ½, who are the children of a relationship between the father, Mr Surry and the mother, Ms Surry.  The case has been reserved for judgment after the mother filed submissions on 10 August 2018.

2. At the conclusion of the trial, the Independent Children’s Lawyer (“ICL”) produced – and it was marked as an exhibit in the proceedings – a minute of order which urged the Court to order that the children, X and Y live with the father; that he have sole parental responsibility and that for three months the mother spend no time or communicate with the children before moving through a supervised time regime.  Those orders were supported by the father.  The mother, in her written submissions, urged the Court to make an order that the children continue to live with her; that she have sole parental responsibility and that the children would spend supervised time with the father.

3. It was indicative of the mother’s position at the hearing and today that the father presents as an unacceptable risk of harm to the children at the least because of, she says, an abuse of the child X in 2012 and/or in Christmas 2013 or in 2014.  The father has been the subject of allegations of abuse made by the mother in reliance upon alleged disclosures of the children in such a way that he has enjoyed limited time with the children.  When Court proceedings were ultimately commenced, and despite investigations by police which did not substantiate the allegations of abuse, the children ultimately were ordered by Senior Registrar Spink in September 2017 to spend supervised time with the father.  By that stage, he had had no time with the children for some time.

4. Sadly, the supervised time at F Group ceased in early 2018, X refusing to continue to spend time with the father from February 2018.  To give effect to the wishes of the children then reflected, I suspended the supervised time order on 16 March 2018.

5. Subsequently, the Court has received extensive evidence from the police about the sexual abuse allegations; viewed Section 93A interviews of Y on 26 May 2017, 5 June 2017 and 10 June 2017; an interview by the father on 6 June 2017 and an interview of X on 10 June 2017.  The mother was also interviewed by police.

6. I do not propose in these interim Reasons today to set out in every detail why the Court has formed the view on the evidence as tested before it at the time of the trial that the father does not present as an unacceptable risk of harm to the children, but that is the Court’s finding.  My reasons which will follow in due course reflect the submissions of the ICL which were adopted by the father.  I understand that the mother still holds the view that the children were sexually abused by the father, and her view is not in any way diminished.

7. The mother’s view that the New South Wales Police have expressed recently a concern arises from Y’s disclosure to the police within the last week in New South Wales that “dad put his doodle in my mouth, bum and front”, an allegation that was not made in those terms previously to authorities in Queensland or raised in the proceedings.  It is, of course, a concern that the child should be continuing to make this disclosure in a different way, not only so many years after the alleged incidents were said to have occurred but in the context of a police interview.  I note in passing that the police, and the Family & Community Services Department of New South Wales (“the Department”), have not had access to the material that was produced to the Court and tested during the trial before me.

8. Whilst the parties were awaiting judgment, it seems on the evidence the mother decided because, she said, she felt unsafe, to leave Queensland for “a holiday”.  I take this from the mother’s statements at the bar table because she has not yet filed evidence considering the urgent nature of these proceedings today.  She did not inform the father she was leaving the State.  In circumstances where previously the mother had sought to home school the children and orders were made for the children to remain at school, the mother gives no explanation as to why the children have not attended school since 21 September 2018, being the last week of the third term in Queensland and from the commencement of the final term.

9. If that was not concerning, the material recently produced by the Department is even more concerning, in my view. I accept, as the mother says, that she has not had a chance to put evidence before the Court and believes some of the statements attributed to her are not accurate. As I indicate, the Department, in deciding to place the children, having been taken into care under s.44, the Children and Young Persons (Care and Protection) Act 1998 (NSW), and caused the maternal aunt to return the children to Queensland, was in the context of no information at all of any significant detail about the proceedings in Queensland or the evidence before the Court.

10. Certainly, by 5 November 2018, which was Monday, the Department is recorded as having assessed the mother but being not able to make an assessment as to whether the mental health issues that arose affected her parenting.  They were satisfied that the best arrangement was for the children to come back to Queensland with the aunt.

11. I had marked as Exhibit 1 a letter from the Department which sets out in summary form their position as at that time.  More importantly, the assessment made in Exhibit 3 includes the following statements which, in no order of priority but as they appear chronologically in the material, I record:

    Mother was located in [Suburb G] this morning, and she had contacted police requesting assistance.  Mother stated that she had taken the children away from Dad, [Mr Surry], as ‘he was doing bad things to them’ and he was communicating with her through number plates.

    Police scheduled [Ms Surry] under MH Act.

    The children had not eaten in 12 hours and their last meal was KFC last night and they had no water today.

    They have been living in the car for 2 days travelling from Queensland with their mother.

    …

    mother [Ms Surry] scheduled under mental health act [Ms Surry] stated 1/11/18 that her husband [Mr Surry] was doing ‘bad things to children’ ‘communicating with her through number plates’ ‘scared she would be squashed in a dump truck’ thus leading to police decision to schedule”

12. Again, it is to be recalled that the father has had no unsupervised time with his children for at least two years, and certainly in the supervised visits noting revealed any concerns about the children having bad things done to them currently.

13. In what is described as part of narrative 10, being a discussion with the hospital, noting I have no hospital records today, it is recorded that:

    Senior Health Clinician check the health database and confirmed that [Ms Surry], has been scheduled under Section 22.  [Ms Surry] presented as paranoid and delusional.  She has told police and health staff that her partner has killed her baby and buried the baby in the backyard.  Police search her and found a bag with soil in it, she stated that the soil is mixed with the baby bones and asked for it to be tested forensically.

14. Under what is described as narrative 11, the following is recorded:

    According the MH assessment [Ms Surry] said that she found some bones in the garden 2 days ago.  She said she had some flashbacks of ‘holding a child’ and ‘something happened to that child’.  She said her ‘husband had something to do with the bones’.

    [Ms Surry] said she puts the kids and pets in the car and decided to drive to Victoria.  [Ms H] was expecting her.  Has been going through a divorce for past 2 years.  States children were abused by husband but would not go into detail.

    MH staff contacted friend [Ms J].  [Ms J] last saw [Ms Surry] about a year ago, and did not have any concerns re her MH.  [Ms Surry] told her that her youngest daughter was SA by her husband and she felt guilty of leaving her in his care.  Police had been involved but not enough evidence.  [Ms Surry] changed her mobile numbers a lot as she said her husband was hacking into her emails and phone.

    Due to [Ms Surry]’s current mental health concerns she is unable to care for [Y] and [X].

15. It is recorded as part of narrative 4 as follows:

    In the interview with [Ms Surry] on 5/11/18 [Ms Surry] stated she and her daughters left QLD to go and stay with a cousin in Victoria.  [Ms Surry] stated they were feeling unsafe at home and wished for a break.  [Ms Surry] was a unclear about how long it would be taking to get to Victoria and did not seem she had really thought it out – [Ms Surry] repeated that it would just take a few days there and back.  When challenged that in two days she had arrived in Sydney so realistically at least a week is more likely, [Ms Surry] said no it would just be a few days.”

16. It is recorded as part of narrative 5 as follows:

    [Ms Surry] was advised about the FLC orders that state she must ensure the children attend school.  [Ms Surry] had not realised she had breached the FLC orders by leaving the state and taking the children out of school in Queensland and seemed shocked by this.  FACS are worried that [Ms Surry] was aware of the impending Family Law Court judgement, and left the state for this reason.  [Ms Surry] denied this.

    FACS remain concerned that [Ms Surry] was very unclear as to why she left QLD, had no plans around the trip in terms of food plans or accommodation options, and seemed to have unrealistic ideas about how long the trip would take.  For this reason, FACS have assessed this danger as met.

17. As part of narrative 22, it is recorded that information was shared with the New South Wales Department by the Queensland Department of Child Safety, Youth and Women and that:

    QLD has shared information as to [Ms Surry] being very paranoid and fixated, and FACS is concerned about the impact of this on the psychological well being of the children.  One example of this was the discussion with [Ms Surry] about the calls talking about their deceased sister [K].  The children stated that dad had buried her in the backyard.  Whilst [Ms Surry] informed FACS she doesn’t know why they said this, the disclosures from the girls have been consistent, and [Ms Surry] brought a bag of dirt to NSW which she said to Police was bones.  [Ms Surry] did not appear confused as to why the girls would make such allegations, or why FACS would find it strange she brought the bag of dirt to NSW.

    FACS are worried about [Ms Surry]’s mental health and the impact of this on her relationship with both children.

18. The following day, on 6 November 2018, Child Safety further interviewed the mother and they record as follows:

    In terms of her mental health [Ms Surry] presented okay - she was articulate and could answer questions.  [Ms Surry] appeared paranoid and confused however that is somewhat understandable due to the current situation.  [Ms Surry] is very paranoid about [Mr Surry].

    FACS talked to [Ms Surry] about the concerns around her delusions such as bringing the dirt to Sydney and talking about her husband killing a baby and burying it in the backyard.  [Ms Surry] stated she does not know why the girls would say that.  [Ms Surry] said that she had a miscarriage of a daughter she named [K].  [Ms Surry] stated she brought the dirt down as she found what her and the girls thought were bones in the backyard.  She was going to give it to the Police or a museum.  [Ms Surry] said she is aware the Police said they were rocks.  [Ms Surry] was appropriate in terms of her discussions around concerns about this and how strange it sounds, however appeared to think her actions were understandable.  It appears that [Ms Surry] is very worried about her husband and is concerned about him following them – she stated he has followed them and shown up in places.  CS has no information as to whether this is true or not.”

19. The transcript will show that I raised some of these concerns with the mother, at least for a response.  She says she felt unsafe in Queensland and this was the reason she did not tell the father about moving to Victoria.  Where I sought to explore, at least from the Bar Table, the areas of unsafeness she said that, apart from the children, of course, being exposed to sexual abuse by the father, the girls have explained to her that “men were looking over the fence”.  She has alleged in the past the father had stalked her.  She also said today that a friend had told her that the father had been making comments on social media.

20. None of this evidence is before the Court.  However, when asked why she did not refer these matters to police who would have – if the evidence is there – powers under Queensland legislation to take protective measures, she seemed to say that she felt the best way was to get out of the State.  There is no suggestion she sought to tell the father or had any intention of telling the father.

21. I am reluctant, today, to say whether the current untested evidence of the events of the last week are consistent with the submissions made by the ICL that the mother presents as an unacceptable risk of harm to the children long term.  She needs to be given the opportunity to put that evidence before the Court – her explanations, if she feels things have been unfairly documented, and just her actions.  She says she has an appointment with a Region L solicitor on Friday, 15 November 2018.  It is to be hoped that the mother will provide the solicitor with a copy of these Reasons as well as other documents that had been provided to the Court and through the Court system for the trial so that the solicitor has a full understanding of the issues that are before the Court.

22. However, based on the evidence at the trial and the recent events, I am sufficiently concerned about whether the mother is capable of meeting the needs of these children both physically and psychologically; that the current order that the children live with the mother cannot stand on an interim basis.  I would ask the father not to overwhelmingly rejoice in this decision, it being made on an interim basis.  However, the need for the children to be safe from the mother’s current erratic behaviour is, in my view, compelling.

23. I raised earlier in these proceedings today, if the Court formed the view that it has on an interim basis, that the children cannot live with the mother, then where should they live.  The father, of course, is the only party in these proceedings other than the mother.  He has been assessed by the Court through the Court process.  The ICL’s submission was that the children should live with the father.  That could only be reasonably contemplated if the Court formed the view that the father did not present as an unacceptable risk to the children.  As I have already indicated for reasons which will be published, I have formed that view that he is not an unacceptable risk to the children.

24. However in this sad case, that is not the end of the matter.  Even though Section 60CC(2)(b) must be given more weight than s.60CC(2)(a), in this case the evidence before the Court is that the children have presented to Ms M, the family report writer; at the F Group Contact Centre and to others, as strongly opposed to spending time with the father and, by implication, living with the father.

25. The father says – and in this submission the ICL supported him – that the children’s view of the father has been tainted by the mother’s conduct.  I am not prepared to make that finding in these interim hearings, however, where the mother is not a suitable person to care for the children at this stage and the father has been assessed by the Court as not representing an unacceptable risk, the father is, as we sit here today, the only candidate for the care of the children on an interim basis.

26. Now, out of an abundance of fairness to the mother and, in fact, as a bit of a precautionary measure, I took what might be said to be the unusual step of telephoning the people who have the care of the children at the moment.  They are the maternal aunt, Ms N, and the maternal grandmother, Ms O.  The transcript will reveal that they were strongly of the view that the father is a risk to the children.  That, of course, is the position articulated by the grandmother to a family report writer where she said she believed what was said by the child.  Neither the grandmother nor the aunt gave any evidence during the trial.  They complained that they did not have that opportunity and they were not asked.  I tried to explain to them that it is not the role of the Court to engage in that process.

1. I accept that the mother did the very best she did at a trial that was difficult and which she wished to adjourn.  She had lost legal representation sometime earlier.  There are also property proceedings before the Court which were troublesome.

2. However, the strength of the emotions expressed by the aunt and the grandmother today, one of which was – although highly emotional – obviously offensive to the Court in essentially seeking to blame the Court if the children die - gives the Court no comfort that it could allow the children to remain in their care without proper consideration, if they chose to do so, of any application that the children live with them.  There is also, of course, the interrelationship between the views held by the mother and still maintained today, as the transcript will reveal, and the views held by the grandmother and/or aunt.

3. I acknowledge that the grandmother and aunt or either of them might, upon considering what is happening today, seek to intervene in these proceedings as an alternate carer.  The grandmother, who obviously loves her daughter, the mother in these proceedings, indicated that she did not believe her daughter was well at the moment.  I did not explore that with her.

4. The proceedings have been re-opened (on the oral application made by the father’s Counsel Ms Wardle today) and the Court requires, as a matter of law, to contemplate whether any other applications are made for care and on an interim basis, there are no other applications, and it is not, in view of the nature of the discussions I had with the grandmother and aunt today, something which I would give them leave to make an oral application without evidence.

5. In the circumstances, it is in the best interests of the children that the children live with the father on an interim basis.  In making this order, I am acutely aware of the difficulties a transition for these children to the father is likely to incur.  It could, of course, be made easier by the mother’s support, but there is no evidence to suggest she is capable of offering that support.  In fact, her recent conduct suggests totally the opposite.  Her evidence at trial was also concerning.  As I said, however, I am reluctant to make any firm findings about the mother until I am able to understand more about the recent events which are troublesome.

6. It is likely the children will not go quietly to the father, and it is likely that the father will be confronted with very strong oppositional behaviour.  I do not ignore their wishes.  However, in my view, it is, on the evidence I heard at the trial, better for the children to be in the care of the father where they cannot remain with the mother.  The only other alternative is foster care or the Department of Child Safety, Youth and Women in Queensland intervening, if they would at all.

7. So conscious of the concerns raised by Ms M during the trial; the wishes expressed by the children in the most recent family report which is before the Court arising from interviews I ordered about why they ceased seeing the father at F Group, I still regard it in the best interests of the children they begin living with the father today on an interim basis.  That is the order I will make.

8. I propose to order that a Recovery Order immediately issue.  I do this because, although I sought to explore with the mother options by which the children could move from the care of her mother and aunt today to the father, she was resistant to really engaging until the end result.  I would hope that the father will accompany the police when they take the children and that he immediately takes the children to Ms B who might be able to settle them down.

9. I will give leave to the ICL to share with Ms B today such information as she may need by background including the psychiatric report of Dr P and the last family report of Ms M, so she understands the context for the children’s wishes as expressed to Ms M.

10. The children are to return to their school immediately tomorrow.  I propose to make an order injuncting the mother from contacting the children.  I also propose to make an order that the mother not approach the children or attend the children’s school or remove them from the school.

11. If the father believes that the children should speak with the mother, then I accept that he will do so in the best interests of the children, and he can facilitate and initiate those telephone calls.  But he is not required, on the orders I am making today, to facilitate the children speaking to the mother at her initiation.

12. It is a sad reality of this case that there is more litigation to go.  It is to be hoped that the mother will get the benefit of legal advice which she did not have earlier.  I should say in closing these brief Reasons, that I do have a residual concern that the grandmother and aunt will not react well to the order of the Court in view of what they said to me.  I do not know whether the mother will think it appropriate to warn them that the police are coming.  If she does and seeks to intervene, she could be in contempt of the Court and run the risk of serious penalties.  I have considered whether the mother should be kept in custody until the children are recovered.  However, there is nothing in the evidence that the mother or the mother’s family would ever, out of spite, hurt these children physically.

13. The mother’s position about the father presenting a risk has been maintained by her despite any other evidence to the contrary.  Her actions in the last week or so could have been motivated by a realisation that a judgment was imminent, although no date for delivery of the judgment had been given.  The new allegations associated with bones; burying a baby and a new redrafted allegation by Y all are matters which I can make no further comment on at this stage other than to indicate they are concerning in the context of this case.

14. I will cause these Reasons to be prepared urgently; settled and published to the parties.  I would ask that the ICL provide a copy of these Reasons to the Queensland Department of Child Safety, Youth and Women. Whether they choose to share the matter with the New South Wales Police and/or the New South Wales Family & Community Services Department is a matter for the Queensland Department.

15. Considering that the mother has an appointment with a lawyer on 15 November 2018, I propose to direct that the mother file and serve a Response supported by Affidavit to the Application in a Case by 21 November 208.  I otherwise propose to adjourn this matter before me for further directions and, if required, hearing to 9.30am on 23 November 2018.

16. I make interim orders, with various notations, that appear at the commencement of these Reasons which are in the children’s best interests.

17. At the conclusion of the oral delivery of reasons today, the mother indicated that there may be a less stressful way of transitioning the children to the father, and, if the parties agree on a process other than a recovery order such that the children are placed in the father’s care today, then the Court should be informed so that police authorities can be advised.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 7 November 2018

Associate: 

Date:  20 November 2018