Whitman and Burr (No 2)

[2009] FamCA 924

FAMILY COURT OF AUSTRALIA

WHITMAN & BURR (NO. 2) [2009] FamCA 924

FAMILY LAW – CHILDREN – With whom a child lives – Recovery of child

Family Law Act 1975 (Cth)

APPLICANT: Mr Whitman

1^st RESPONDENT: Ms Burr

2^nd RESPONDENT: Ms Rapt

FILE NUMBER: BRC 6170 of 2007

DATE DELIVERED: 16 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Murphy J

HEARING DATE: 16 September 2009

REPRESENTATION

APPLICANT: Appeared in person

1^ST RESPONDENT: Appeared in person

2^ND RESPONDENT Appeared in person

Orders

IT IS ORDERED THAT

1. A Recovery Order issue 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.

2. Such persons are authorised and directed to find and recover the child C born … January 1994 (male) and for that purpose, such persons should search and enter the residence of Ms J Burr, …, K, in the State of Victoria, or at any other address at which enquiries may reveal that the child may be located, 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.

3. 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.

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

5. Save as otherwise hereby ordered the Application in a Case filed by the father on 8 September 2009 is dismissed.

6. The Responses filed by each of the mother and the second respondent are dismissed.

7. The mother shall file and serve any Application for parenting orders by 4.00pm on 23 October 2009 and that such application shall be accompanied by an Affidavit deposing to those matters which the mother says have changed since the orders made on 10 March 2009.

8. The father shall file and serve any Response to such application by 4.00pm on 27 November 2009 and that such application shall be accompanied by an Affidavit responding to the matters deposed to by the mother in her Application and Affidavit.

IT IS FURTHER ORDERED THAT pending delivery of the child to the father:

1. The mother, or any agent or person acting through her or at her direction, request or with her permission, is prohibited from removing or taking possession of the child.

2. If the mother, or any agent or person acting through her or at her direction, request or with her permission, removes or takes possession of the child, other than in accordance with the orders of the Court made by his Honour Justice Murphy on 10 March 2009, that person may be arrested without warrant.

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 SYDNEY

FILE NUMBER: BRC 6170 of 2007

MR WHITMAN

Applicant Father

And

MS BURR

1^st Respondent Mother

And

MS RAPT

2^nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 31 March 2009, I delivered extensive reasons for judgment after the trial of a parenting case that occupied three days before me from 10 to 12 March 2009. 

2. That case involved significant issues in respect of the two children the subject of the proceedings.  C, born in January 1994, and D, born in December 1997.  It might be observed, therefore, that C is now about 15 and a half, and D about 11 and a half. 

3. The current proceedings are in respect of a recovery order sought by the father in respect of the older child, C, absenting himself from his care. 

4. It appears that C left his father’s care, and took himself into the care of a person named as the second respondent to these proceedings, Ms Rapt. 

5. Ms Rapt appears before me today, and indicates that C came into her care on 2 September 2009, and left shortly thereafter.  It is said that he left after a visit from the police, during which the police indicated to him that he would need to return to his father.

6. In the proceedings before me today, the mother tells me that C has somehow absented himself from Queensland, and, somehow, found his own way to rural Victoria.  She says that he is currently living with her mother, Ms J Burr, at K, which I am told is in central Victoria, some distance from Melbourne. 

7. How C got there is, according to the mother, a mystery.  The mother says that C is safe there, and that her mother is prepared to care for him, and that he does not wish to return. 

8. The circumstances just described might, given that C is now 15½, give rise to questions about why this court would seek to intervene. 

9. The answer is to be found in the complex and unattractive circumstances pertaining to C’s post-separation co-parenting, which I outlined in some detail in my reasons for judgment given on 10 March 2009.  I will refer to the specifics of those in a moment.

10. The mother says, in effect, that she cannot facilitate the return of C to the father’s care.  She says that she cannot do so because he expresses a desire to remain living where he is, and that “at least she knows that he is safe there.” 

11. This, too, has echoes in the allegations, counter-allegations and findings made by me consequent to the trial to which I have just referred.  I asked the mother when and where C could be returned so that the orders then made by me would be complied with.  The mother made it abundantly plain that she could not facilitate his return.

12. In the reasons for judgment earlier referred to, I made reference to the fact that I had evidence before me from an expert independent social worker, Mr M, who had prepared two reports, an expert independent psychiatrist, Dr N, who had prepared a report, and also a report from Ms P, who had been providing counselling to C at the instigation of the father. 

13. At paragraph 14 of my reasons for judgment, I quoted a passage from the report of Mr M.  I said in those reasons that the quoted passage “is … entirely consistent with the mother’s position in the proceedings before me some 16 months later.” 

14. I make it clear that this, too, seems reflective of the mother’s continuing position before me today, some five or six months later. 

15. At paragraph 23 of the report, Mr M said this:

    Of this [the position quoted in the paragraph above], [the mother] states that she has a duty of care to the children which overrides court orders.  She proposes that the children only have supervised time with their father and, even then, only if they want to visit: “I want the kids to choose to see him, and if they see him, I want it supervised.”

16. After a consideration of all of the evidence, including the two family reports prepared by Mr M, the report of the psychiatrist, Dr N, and the report of C’s counsellor, Ms P, I made a number of findings.  Among those findings are the following:

    5.Further, both children are at 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 seeking to obtain “disclosures” from either child, relating to any such harm.

    6.The children are at very high risk of emotional harm from Mr [H] [who the mother tells me today continues to be part of her life] by reason of his unrestrained expression of hatred toward 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.

    ...

    9.[C’s] expressed wish to live with his mother (and Mr [H]) and his expressed antipathy towards his father and his father’s care of him, should not, despite his age, be accepted at face value.

    10.[C’s] letters, and his running away from home, are an expression of a troubled adolescent significantly scarred emotionally and psychologically by his parents’ conflict, and reinforced by actions of his mother and Mr [H].

    11. Furthermore, [C’s] actions are, most likely, the overt expression of a deep and highly troubling psychological issue clearly identified by Dr [N]. 

17. All of the other findings made by me during the course of that hearing are important, contextually, for the current application and circumstances, and I rely upon them generally for the purposes of making the orders which I make today. 

18. But, those which I have highlighted, have, it seems to me, particular importance in the context of the current application. 

19. In those reasons, I noted with particular interest an assertion by the mother that the Department of Child Safety had substantiated harm against the father.  To that effect, she relied upon a letter dated 10 June 2008, which provided, relevantly:

    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].

20. I said there (again, interestingly, in the context of the current application):

    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 harm (emotional harm) at the hands of the mother. (emphasis added)

21. As I made clear in those reasons, that an independent statutory agency in Queensland, charged with responsibility for children, had found that the mother had emotionally harmed the children. 

22. That finding by that Department is consistent with the opinions of Mr M, and the opinions of Dr N, and consistent with the findings made by me after a three day trial. 

23. Dr N reported (as I quoted in my earlier reasons) that in January 2009, C said:

    He reported that he worried a great deal about his mother and “how far her depression will go”.  He stated that, “At the contact centre, she said she was taking anti-depressant pills because of the court case.  I was wondering what would happen if the depression went past the pills... she would give up completely and totally lose the plot.”  When specifically asked, he stated he did not think that she would actually hurt herself.

24. I went on in my reasons to say this at paragraph 177:

    The profound sadness attending statements such as those by an adolescent boy, who has the whole of his young adulthood ahead of him, need hardly be stated.  Equally troubling, though, in the current context, is that an adult [the mother] is placing a burden such as that on a child. That is, as I find, emotionally abusive of him.  Children are not responsible for their parents, nor should they feel responsible for their parents.  It is parents who owe responsibilities to children, not the other way around. 

25. I earlier indicated that C had been seeing a counsellor, Ms P.  The father told me today that, at Ms P’s suggestion, those sessions with her had stopped. 

26. It was indicated by the father that Ms P had indicated to him that, should events transpire such that he considered it appropriate that the sessions with her recommence, then she would facilitate that occurring.  The father tells me that as a result of this most recent running away (and I hasten to mention that, as referred to in my earlier reasons, this is by no means the first time that C has run away) he intends taking C back to see Ms P. 

27. I said in my reasons at paragraph 178:

    Unsurprisingly, as it seems to me, the pressures on [C] just described have manifested themselves during the counselling provided by Ms [P].  Ms [P] says (exhibit ICL8) that:

    It was evident from [C’s] behaviour during the session that he felt torn between his developing relationship with his father, and a perceived allegiance to his mother and her partner.  During our counselling sessions, [C] asked a number of questions about the family law court process.  [C] identified that both parents had provided him with information about various issues that had been raised.  It appeared [C’s] questions were designed to clarify information that had been provided to him previously regarding his rights and the decision-making process.  During counselling, [C] reported a realisation that he had been exposed to too much information previously.

    Ms P went on to say:

    It is my assessment that while [C] has made progress in acknowledging positive gains in his relationship with his father, it is hampered by a perceived need to remain aligned with his mother.  As contact with his mother progresses, it is my belief that this struggle will become increasingly difficult for [C] to manage.  As such, it is recommended that ongoing treatment remain available to [C].

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. 

29. 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. 

30. I merely observe that the manner, timing, and means by which a 15½ year old boy found his way from his father’s place to a former neighbour’s place, and, over a week later, found his way to central Victoria, remain completely unexplained on the evidence before me. 

31. During the approximate week that C stayed with the second respondent, Ms Rapt, she informs me that he did not attend school.  His current schooling arrangements are unknown to me. 

32. The mother, I reiterate, has indicated that she is unable to facilitate the return of C at a place and time specified by her.  Were she able to do so, that would obviate the need for the Federal Police to intervene in these proceedings to secure C’s return to his father in accordance with the orders made by this court. 

33. I sought, on more than one occasion, an indication from the mother how that return might be facilitated without that draconian step.

34. Tragically, sadly, but wholly consistent with the picture presented to me in the trial in March, it is necessary for me to order a recovery order for the return of C to his father’s care at the earliest opportunity, and I will do so.

35. I order accordingly.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  24 September 2009