Background
In the recent case of Renald (No.2) [2017] FamCAFC (14 July 2017) Thackray J heard the mother’s appeal of an order made by the Magistrates Court of Western Australia. In April 2016 the parties consented to an interim order that their seven children live with the mother and that all but the youngest spend long weekends and part of some school holidays with the father (as had been the arrangement since separation in 2013). The father lived in Town H, a two hour drive away. Two family reports had been prepared.
While the reports made no provision for the children to see the father during the summer school holidays, the mother agreed to the children, B, V and A, spending time with him from 8 to 29 January 2017. At the end of that period the father returned A but withheld B and V, saying that they did not wish to go back to the mother.
The mother applied for a recovery order but was not granted an urgent listing notwithstanding that the school year was about to commence. Her application was not dismissed when heard six weeks later in March 2017 although the magistrate did not grant a recovery order as the children’s views were in dispute; the weight to be given to such views were a matter for trial; a final trial was scheduled in August, and because the Court did not wish to “chop and change” arrangements prior to the hearing.
Mother’s Application
On 31 January 2017, the mother sought a recovery order for B and V. She did not seek to review the decision to list the application in March 2017, which she was entitled to do since the magistrate made his decision about the listing as a registrar of the Family Court of Western Australia.
Analysis
The mother traveled to Town H on 5 February 2017. The father gave detailed evidenced about her unsuccessful attempt to persuade the children to come home, but gave no evidence of any effort by him to persuade them to return. On the contrary, over the mother’s objection, he recorded the events and abetted the children in their refusal to go with the mother. The father had already enrolled the children in school at Town H where they commenced on 1 February 2017. He had also enrolled them in local sporting teams and Horse Club.
By the time the matter came before the court on 10 March 2017, B and V had not seen any of their siblings since early January. They had not seen the mother, save on the day she tried to collect them. There had also been only limited telephone contact.
Magistrates Court of Western Australia’s Error
Ground one asserted error by the magistrate in failing to determine and make orders pertaining to the application filed 31 January 2017.
It was submitted that this error was compounded by the delay in listing, which, it was argued, was not justified in view of the nature of the application and the evidence before the court, including that of the single expert.
The Court considered there was substance in this argument. The interim orders were recent and made by consent. The application was filed immediately after the children were retained by the father. The father had Perth solicitors on the record and there would therefore have been no delay in service. The children were meant to be back at school on 1 February 2017. The effect of the father’s actions was that the siblings were separated, contrary to the recommendation of the single expert. There was no suggestion they would be at any risk of being returned to the mother in accordance with the orders to which the father had consented.
The Court assumed that the delay in listing was associated with the magistrate’s heavy workload, but even so it was unacceptable in circumstances where a party was looking to the court to enforce a recent order. It is therefore regrettable that the mother did not seek a review of the decision not to list the matter promptly. However, the Court did not deal with the error in the listing process. The Court considered whether there was error on the part of the magistrate on 10 March 2017, by which time, for better or worse, the children had been held over for some weeks and had commenced at their new school.
It was argued that the failure to make an order ‘dealing’ with the application was tantamount to a refusal of the application, and that such refusal constituted an ‘order’. While the Court accepted this proposition, it did not advance the mother’s case since there was no doubt his Honour heard and determined the application.
As to whether the magistrate erred in overlooking two previous family reports. Thackrey J stated that if his Honour had considered the reports he would have been able to place in context the statements the children made when faced with returning to Perth or remaining in Town H where they had been enjoying activities in the summer holidays. This context would have allayed his Honour’s concerns about his inability to determine the strength of the children’s wishes. In the Court’s view, there was ample evidence in the reports to have persuaded his Honour that the exercise of some appropriate parental encouragement by the father would have ensured the children’s return to the mother, with whom they had a good relationship.
The mother’s solicitor strongly submitted at the hearing that his Honour should have considered the single expert’s reports. In the Court’s view, his Honour’s failure to have any regard at all to the reports caused his discretion to miscarry.
The Court accepted that that the decision was based not only on his Honour’s inability to determine the strength of the children’s wishes, but also on the fact that the children had settled into a new school. However, whatever might be said about the importance of them remaining at a school they had attended for just six weeks, his Honour’s uncertainty about the strength of their wishes formed a central part of his reasoning. His failure to assess the likely strength of those wishes in light of the reports, and his failure to consider the effect on the other children of seeing the father flouting an order with impunity, constituted error.
Separation of Siblings
Although invited to do so by the mother’s solicitor, the magistrate failed to take into account the impact on the children of his refusal to make an order which would have ensured that all the children continued to reside together. In the Court’s view, the issue was of importance given the probability that some of the children would never visit the father’s home and the others would visit only occasionally. The likely effect of refusing the recovery order was that B and V would only see their mother and the other children infrequently. As already noted, they did not see each other at all in the period of some six weeks between them being retained by the father and the date of the hearing.
His Honour’s decision reversed a long-standing arrangement, which had been confirmed by a consent order. This reversal came about without regard to the matters discussed above, and without reference to the factors in s 60CC of the Family Law Act 1975 (Cth), which must be taken into account. A proper consideration of the matter demanded careful examination of the best interests of the children. In the Court’s view, the failure to undertake this task and to instead focus on the children’s end-of-holiday wishes and the fact they had been attending a new school for a few weeks, constituted appealable error.
In the Court’s view, it was readily apparent, and of great significance, that the orders considered for B and V would have a profound impact on the other children, especially T and the younger boys. In making the decision, the Court intended to focus as much on the interests of the children living with the mother as well as on the interest of the children living with the father.
Furthermore, the Court considered that the matter was listed for trial at the end of the next month. While it might be thought that this is a strong argument for not interfering with the current arrangements, it can also be argued that this is a factor supporting the making of an order enforcing the existing orders as there will be opportunity for a review in the near future. Thus, any upset B and V might feel from being required to leave their father’s home would potentially be ameliorated by knowing the matter will be reconsidered soon.
The reality, however, is that there is no guarantee the matter will proceed and be completed at the trial scheduled for late August 2017. As the List Judge, I know how often events intervene to prevent cases being heard and/or completed. As the case was listed for five days, and involves both parenting and financial issues, there was also a strong prospect that the judge will reserve his decision, and there can be no guarantee how quickly it will be delivered.
Conduct of the Father
Another important factor was the conduct of the father, which was properly described as as ‘reprehensible’. In taking this factor into account, the Court did not want to punish the children for the wrongdoing of the parent, but rather as accepting these observations of the High Court in Bondelmonte v Bondelmonte (1017) 341 ALR 179.
It would have been remarkable if the primary judge had not commented upon the father’s conduct. It involved a breach of the 2014 parenting orders and it had the potential to undermine the possible relationships that family members might have in the future, a matter to which the processes put in place by the 2015 orders had been directed. Furthermore, the father’s flagrant disregard of the parenting orders was a matter relevant to the child’s best interests under s 60CC(3)(i). It evinced an attitude towards the responsibilities of parenthood that, if left unchecked, would likely send a poor message to the boys who, on the evidence, were highly impressionable.
The father’s action in not ensuring that the children returned to the mother after she had voluntarily allowed the children to visit him during the holidays sent not only a poor message to B and V, but also to their siblings who were troubled by the prospect that they too may be ‘taken’ or ‘kept’. These fears may impact, for example, on Y’s desire to spend time with his father.
Although the father claimed that he was complying with the children’s wishes, the Court was satisfied that had he exercised proper parental authority and encouraged the children to return to their mother, they would have done so. While the father pretended to be complying with the court order by telling the mother that she could collect the children, his entire conduct around that episode indicated that he had every expectation and wish that they would not return home.
Although it was not a matter that the Court considered, an order requiring V to be returned, even with a trial looking, may send a message to the legal profession and their clients that the court is willing to enforce its orders, and that parents should not take matters into their own hands where there is no evidence of risk. This should be of particular benefit in the many cases where children express a desire to stay at the end of their holiday visits with a loved parent.
The Court anticipated that at the time these reasons are delivered, B will be visiting his mother in Perth, while V and A will be with the father.
Orders
Upon the concession of the mother’s counsel that given the child B’s age (born in 2002) it was appropriate for only V to be returned, the appeal was allowed and an order made that the father return the children in his care except for B who may elect to stay with him if he wished to do so.