Whitman and Burr

[2010] FamCA 128

FAMILY COURT OF AUSTRALIA

WHITMAN & BURR [2010] FamCA 128

FAMILY LAW – CHILDREN – Time with mother suspended – Intervention of Department of Communities (Child Safety Services) – Designate Magellan

Family Law Act 1975 (Cth)

APPLICANT: Mr Whitman

RESPONDENT: Ms Burr

INDEPENDENT CHILDREN’S LAWYER: Ms Chan

FILE NUMBER: BRC 6170 of 2007

DATE DELIVERED: 10 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 10 February 2010

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Chan, Legal Aid Queensland

FRIEND OF THE COURT Ms Day, Department of Communities (Child Safety Services)

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The mother shall do all such things as are necessary to forthwith, upon the conclusion of these proceedings, deliver the child D born … December 1997 (“the child”) to the H School without delay.

2. The mother shall not, and shall ensure that no person acting in accordance with her instructions, directions, authority or knowledge, remove the child from the said school, save for the purpose of forthwith delivering the child, at the conclusion of school, to the Child Dispute Services of the Family Court of Australia.

3. The mother shall arrange for the child to be delivered to the Child Dispute Services, level 3 of the Family Court of Australia forthwith upon the conclusion of school today, but in any event, not later than 4.45pm today, 10 February 2010.

   IT IS NOTED THAT school for the child ceases at 2.40pm today.

4. The father shall collect the child from the Child Dispute Services immediately upon her delivery to that service by the mother.

5. Each and every order providing for any time for the child to spend with her mother, is immediately suspended.

6. The mother shall not, and shall ensure that no person acting in accordance with her instructions, requests, or agency, approach the child’s school, or any other place where the child is present, whether residing there, or as part of her usual school, sporting, or extra-curricular activities.

   RECOVERY

7. In the event that the child is not delivered to the Child Dispute Services in accordance with these orders, a Recovery Order shall issue forthwith addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia for the child to be recovered without further order.

8. Such persons are authorised and directed to find and recover the child D born … December 1997 (female) and for that purpose, with such assistance as they require, 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 child may be found.

9. The child is to be delivered to the father MR WHITMAN at …, in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and the Applicant.

10. The Recovery order remains in force for a period of twelve months.

IT IS FURTHER ORDERED THAT

1. The Independent Children's Lawyer be a liberty, pursuant to s 121(9)(g) of the Act to provide to the relevant Department in Victoria, all such documents and information as are considered appropriate by the Independent Children's Lawyer, upon consultation between the Independent Children's Lawyer and relevant officers of the Department of Communities (Child Safety Services).

IT IS RESPECTFULLY REQUESTED THAT

1. The Department of Communities (Child Safety Services) provide to the Independent Children's Lawyer, as soon as reasonably practicable, all such information obtained by it and through it, and the Child Protection Investigation Unit, in relation to allegations made by the child, including any interviews conducted by Departmental officers or the Child Protection Investigation Unit in and about an investigation of a complaint made by the mother relating to the child, which occurred on Saturday 6 February 2010.

IT IS FURTHER ORDERED THAT

TRANSCRIPT

1. A transcript of the matters put before the Court today by Ms Day, on behalf of the Department of Communities (Child Safety Services), be prepared and provided free-of-charge to the Independent Children's Lawyer and the parties.

2. To the extent that the exception provided for in s 121(9)(g) of the Family Law Act 1975 or the other provisions of that subsection do not otherwise authorise same, the Independent Children's Lawyer shall have leave to publish an account of these proceedings and provide a copy of such transcript ordered today to the relevant Departmental authorities.

   FURTHER HEARING

3. The hearing listed at 9.30am on 1 March 2010 is vacated.

4. The Initiating Application by the mother filed on 22 October 2009 and all matters of and incidental to such application and related to it, travel with the continuation of today’s proceedings, which are, effectively, an application to spend time.

5. Within 14 days of today, the father shall file an Application for Final Orders which outlines any orders sought by him in respect of time with the child.

6. The Initating Application by the mother filed and to be filed by the father shall proceed through the Court’s case management pathway together, and the further hearing of such applications shall be heard at a time and date to be advised, but not less than 8 weeks from today, and subsequent upon the Independent Children's Lawyer being in a position to provide to the Court information and data from the Department of Communities (Child Safety Services) and from the Queensland Police Service, and if considered appropriate, any other information or reports in respect of these proceedings.

7. Each of the parties are excused from:

   (a) compliance with s 60(I) of the Family Law Act in respect to attendance at a Family Relationships Centre;

   (b)       compliance with and attendance at the Court’s Child Responsive Programme.

8. The matter be designated as a Magellan matter and it is requested that the Magellan Registrar accord to the matter such priority as can be accorded.

   SUBPOENAS

9. The Independent Children's Lawyer is granted leave to issue subpoenae to such persons or organisation which, at her discretion, she considers appropriate.

10. Unless otherwise ordered, leave is granted to all parties to inspect and the INDEPENDENT CHILDREN'S LAWYER ALONE TO COPY documents produced pursuant to subpoenae, save in respect of any document of which an objection is taken by the recipients of any subpoena to either the production of documents or the inspection of them, or claim for privilege attaches and/or in respect of which confidentiality is claimed, in which case an application is to be brought before Justice Murphy to inspect such documents.

    SECTION 91B ORDER

11. Pursuant to s 91B the Director of the Department of Communities (Child Safety Services) is requested to intervene in these proceedings relating to the welfare of the child D born … December 1997.

12. Upon request from the said Director of the Department of Communities (Child Safety Services) the Registry Manager permit inspection of the Court file by a person authorised by the Director of the Department of Communities (Child Safety Services) and copying of any part of it to enable consideration of the request to intervene in the proceedings.

13. In the event that the Department of Communities (Child Safety Services) elects not to intervene in the proceedings it is hereby requested that the Department produce a report pursuant to s 69ZW of the Act and in particular in that report to indicate whether any action by the Department is contemplated in respect of this child.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 publication of this judgment under the pseudonym Whitman & Burr is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6170 of 2007

MR WHITMAN

Applicant Father

And

MS BURR

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. On 3 November 2009 I commenced ex tempore reasons for judgment by saying, “This is the fourth set of reasons I have delivered in this matter.”  Today, then, I give the fifth set of reasons that I have delivered in this matter. 

2. The pain and anguish that C and D have been put through would make any sane, normal, loving, caring parent, or indeed any other person, want to weep.  The mother, via her actions, is putting D through yet more pain and anguish. 

3. Those statements can be made, albeit in the context of these truncated proceedings, by reason of a series of findings that have been made by the court that now stretch back almost 12 months.  In that respect, it is to be noted that these parenting proceedings have been before the Federal Magistrates Court or this court now for almost two and a half years. 

4. For the whole of that time there is not the slightest shadow of a doubt that C and D have been subjected to very significant emotional harm.

5. After a three day trial at which all, I repeat all, of the allegations and assertions made by the mother were examined at length, a series of findings were made.  I have repeated them in earlier judgments.  Tragically, it is again necessary to repeat two of those central findings again today. 

6. They are as follows.

   (a)D is not at risk of sexual harm in the care of her father.

   (b)C is not at risk of physical harm in the care of his father.

7. It is again important to note, in the context of yet another application in respect of these children, what I also there said at subparagraphs (5) and (6).

   (5)Both children are at a very high risk of emotional harm at the hands of their mother by reason of a continued inculcation of a belief on her part that [D] has been the subject of sexual harm at her father’s hands, [C] the subject of physical harm, and both children the subject of emotional harm together with her past and likely future behaviours in and about the seeking to obtain “disclosures” from either child relating to any such harm.

   (6)The children are at a very high risk of emotional harm from [the mother’s partner] Mr [H] by reason of his unrestrained expression of hatred to one of their primary-loved objects, namely their father, and Mr [H’s] past and likely future inculcation and encouragement of the beliefs referred to in the earlier paragraph.

8. Those central findings were made in the context of a case in which, in addition, I said:

   I also consider that each of the mother and Mr [H] have a desire, probably unconscious, but I am not completely convinced about that, to twist statements made by others, including the children, so as to paint an adverse picture of the father.  A good example was provided by the mother in the witness box.  The mother was anxious to tender before me a letter from the Department of Child Safety which ultimately became exhibit M8.  The mother was anxious to indicate that harm had been substantiated by the department against the father.  The letter is dated 10 June 2008 and relevantly provides:

   “The [W] Child Safety Service Centre assessed the concerns in relation to your children, [C] and [D].  As part of the assessment of the notified concerns, departmental workers spoke with you on 21 February 2008 and 25 February 2008.  Departmental workers also spoke with your children, [C] and [D], as well as their father.  As discussed with you on 21 February 2008, the outcome of this assessment is substantiated child not in need of protection for your children, [C] and [D].”

   I went on to say in those reasons:

   Contrary to the mother’s assertion, that was not the department’s substantiation of harm of the children at the hands of the father, but rather a substantiation of emotional harm at the hands of the mother.

9. In my trial reasons for judgment I said at paragraph 88:

   I am strengthened in [my] assessment by what I regard as the significant fact that the day following the conversation [there quoted] the father approached the [W] office of the Department of Child Safety expressing concerns that the mother was making allegations against him of sexual abuse. I repeat, allegations of sexual abuse by the mother were unsubstantiated by the department.

10. I also referred in those trial reasons to the fact that I was significantly comforted by the fact that the departmental view that the children were not at risk of harm of sexual abuse, or any other form of sexual harm, but were at risk of emotional harm by the mother was a view that was held not only by the department but by a counsellor who had seen both children, Ms P, and by an experienced reporting child psychiatrist, Dr N. 

11. Independently of each other, those professionals arrived at exactly the same conclusion, namely that these children were at very significant risk of emotional harm at the hands of the mother.

12. The unanimity of those views formed a powerful foundation for the ultimate findings made at a trial.  What has become plain, however, through the events of the last 12 months or so, (and again today by the mother’s own words), is that she implacably refuses to accept the opinions of professionals and the judgment of this court in that respect. 

13. In ex tempore reasons delivered on 16 September 2009 I quoted at some length from the opinion of the expert child psychiatrist, Dr N.  I also quoted at some length from the opinions given by Ms P. 

14. Those reasons were given in the context of an assertion by the mother that C, who was then 15½, somehow found his own way to a neighbour, thereafter found his own way to Victoria, thereafter found his own way to the maternal grandmother’s place in Victoria, and, says the mother, she had not the slightest idea that any of this was occurring. 

15. In those reasons I said at paragraph 28:

    The father, in effect, asks me to make findings that the mother and perhaps others have been complicit in actively arranging for [C] to leave his care and to end up in the care of his maternal grandmother.  These are truncated proceedings in respect of what is, in effect, an emergency order and it is not appropriate for me to make findings in the context of such proceedings.  I merely observe that the manner, timing, and means by which a fifteen and a half year old boy found his way from his father’s place to a former neighbour’s place and over a week later found his own way to Central Victoria remain completely unexplained on the evidence before me.

16. As will be seen from the orders made at the conclusion of the trial, an attempt was made to balance the substantiated harm to these children at the hands of their mother and what was assessed to be the need for the children to nevertheless have a meaningful relationship with their mother. An attempt was made to achieve that by the provision of such time between them as was considered appropriate and safe in light of the findings made at that trial.  In that respect the orders speak for themselves.

17. In broad terms, by reason of the timetable provided in those orders, the mother was, not long ago, due to commence to see (relevantly) D for periods of time in an unsupervised setting but with the changeovers into her care supervised appropriately. 

18. Within a few short visits the mother was, yet again, making a complaint to relevant authorities about, yet again, alleged statements made by D, to yet another person. 

19. Ms Day does this court the courtesy of appearing today on behalf of the department. She advises of information (which I propose to take into account- see Division 12A of the Act) gained from speaking to the relevant interviewing officers within the department and obtained information from the departmental file. With stark and troubling similarities to that which has occurred in the past it is said on that file by those experienced interviewing officers that the statements of the child bear a remarkable and troubling similarity to statements made by the mother.

20. Not only does the department not intend to take any child protection actions under state legislation in respect of D by reason of those statements, but, rather, Ms Day indicates that in the event that orders are not made by this court today immediately placing D back into the care of her father, the department is highly likely to take action pursuant to state legislation so as to prevent D being in the full-time care of her mother. 

21. Once again I am comforted by those statements, not because I assume that the department’s view is, with respect, necessarily correct but because the evidence before me today bears a remarkable consistency and similarity to that which was before me at the trial.  It seems to me that, yet again, D is being exposed to emotional abuse at the hands of her mother.  I will not permit that to continue.

22. I have attempted, to the best that court orders can do so, to ensure that orders facilitated time between D and her mother in light of the findings that were made at the time. 

23. Within a very short space of time after the commencement of unsupervised time pursuant to those orders further allegations, “disclosures”, and assertions, precisely identical as it seems to me, to those which have been made in the past, are being made again. 

24. I am not prepared to permit D to continue to be emotionally abused by her mother. 

25. Accordingly I propose to suspend all time between D and her mother so that the court can receive information from as many sources as are reasonably practicable, as it did in the lead up to the trial that occurred in March of last year.

26. In that respect I have today directed that a transcript of Ms Day’s comments (which provide information from the Departmental file) be prepared free of charge and provided to all parties, including the Independent Children’s Lawyer.

27. I have also directed that the information be provided to the relevant Departmental authorities in Victoria.

28. It is to be noted that, as a result of the mysterious circumstances pertaining to C earlier referred to, he is, it seems, continuing under an order pursuant to that state’s legislation. 

29. Further, the Independent Children’s Lawyer, who I should add supports all of the orders which I have indicated that I will make, indicates that, during the period that time is suspended, investigations will be made by her with the investigating police and the department, and it is highly likely that she will obtain further independent expert reports in and about the issues pertaining to these children.

30. Nowadays, this court deals with parenting cases which are, almost, without exception, very troubling.  Judges make decisions on the facts according to law, but judges are also human. 

31. I am sickened by the abuse that these children have suffered, and I propose to make such orders as are within my power to ensure that it does not continue. 

32. For those reasons I make the orders earlier indicated.

I certify that the preceding twelve (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  24 February 2010