In the recent Family Court decision of Renald (No. 2)  FamCAFC 133 (14 July 2017) Thackray J (sitting in the appeals jurisdiction of the Family Court of Australia) heard the mother’s appeal of a Magistrates Court of Western Australia order.
Back in April 2016, the parties consented to an interim order that their seven children live with the mother, with all except the youngest child spending long weekends and part of some school holidays with the father (as had been the arrangement since separation in 2013). The father lives two hours away from the mother.
While the April 2016 order did not provide for the children to see the father during the summer school holidays, the mother agreed to three 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, on the basis that they did not wish to return to the mother. The mother applied for a recovery order but was not granted an urgent hearing, even though the school year was about to commence. Six weeks later, her application was not dismissed, however, the magistrate did not grant a recovery order as the children’s views were in dispute (notwithstanding an earlier family report that had been prepared); the weight to be given to such views were a matter for trial; a final trial was scheduled in August; and the Court did not wish to change arrangements prior to the hearing
When the matter came to Court on 10 March 2017, B and V had not seen any of their siblings since early January (except for A, who was with them during January and came to visit once just before the hearing). They had not seen the mother, and there had been very limitedtelephone contact.
The Court on appeal was not impressed with the father’s actions in withholding the children, which involved separating them from their siblings contrary to their best interests: “.. 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 if returned to the mother in accordance with the orders to which the father had consented.
… … My task is to consider 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.
In relation to whether the magistrate in Western Australia was in error in overlooking the two previous family reports outlining the views of the child, the Court (Justice Thackray, the Chief Justice of the Family Court of Western Australia) said (from ):
“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 the father resided] 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 my 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.
( … )
… I accept 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.”
Turning to the effect of the father’s action in resulting in the separation of siblings, Thackray J said (from ):
“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 ensure that all the children continued to reside together. In my view, this 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 my 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.”
Thackray J considered it very important in the case at hand to make an order which would send a message to the legal profession and their clients not to willingly flout court orders and “take matters into their own hands” when there was little evidence of risk to the children involved. According to Thackray J, this was especially necessary around the end of school holiday periods, where there is a temptation of one parent not to return one or more children contrary to what is required by court orders.
Thus, (at ), “the father must ensure that V and A are returned to the mother on Monday (as currently planned for A)”. It will be a test of the father’s parental capacity to see whether he is able to ensure they are delivered without fuss or bother. If his parenting capacity is such that he is unable to bring about that outcome, then a recovery order will issue and the father can explain to the trial judge why it was that he could not ensure that the children were returned.”
Upon the concession of the mother’s counsel () that given that the child B is already a teenager (born in 2002) with more capacity to determine to act in accordance with their wishes, it might be appropriate for only V to be returned accordingly, 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”.