by: Caroline Overington
From: The Australian
November 29, 2011 12:00AM
A SYDNEY mother has received a written apology from the chief of the Federal Magistrates Court after her three children were removed from her care for refusing to visit their father. In a letter of a type rarely seen in Australia,
The woman, who cannot be named, was accused in court of "poisoning" the children against their father by involving them in the custody dispute. The children were twin boys aged 14 and their 12-year-old sister.
Chief Federal Magistrate John H. Pascoe saidI am very deeply concerned at the distress the mother suffered after her children were taken from her.
The treatment the mother received in court was quite inconsistent with the aims of the court in dealing with family matters and I have a great deal of sympathy for you.
The magistrate in the case, Joseph Harman, told the woman he believed she was doing irreparable psychological harm to the children by not encouraging them to see their father. In a hearing at the Parramatta branch of the Federal Magistrates Court, Mr Harman said the children would have no relationship with their father if they were allowed to stay with their mother. He based his ruling on the findings of a court psychologist.
Under the laws on shared parenting brought in by the Howard government in 2006, couples were encouraged to "co-parent" their children after divorce.
The Senate passed amendments to those laws last week. Men's rights groups have complained the Labor government is winding back shared care, but women's groups say the amendments are necessary to protect children from harm. When Mr Harman told the Sydney mother he had decided to send the children to live full-time with their father, her lawyer immediately objected, saying the "extraordinary" move "would remove the children from the mother, instantly, with no communication whatsoever".
Mr Harman replied: "That's a bit like what happened in June-July last year, when the children were removed from any time with their father, and haven't communicated with him since."
Counsel for the mother told the court the children had become hysterical when told of the order, and were refusing to leave the court with their father. The magistrate said this was typical of children who had been taught to fear their father.
The mother left the court "distressed and about to vomit" and an ambulance was called. Two NSW police officers attended the court after the children began damaging court property in the foyer. The mother's lawyer then told the court that if the children were forced to go with their father they would run away.
"That's why I've invited the Department (of Community Services) to intervene," Mr Harman said. "If they don't comply, they will be in a refuge. They won't be going home with mum."
Two senior child welfare officers from the NSW Department of Community Services were called to the court. Mr Harman told them: "We have two children, sorry, three children, two of whom are twin boys who have just turned 14, so young, strong and full of testosterone, and a 12-year-old girl.
"They are now expressing very strong entrenched views that they are not going anywhere with their father. I have just made an order that they are to go home with him. "I have also made an order, subject to the power of arrest if anyone breaches it, that neither mum nor any member of her family are to go and talk to them.
"If these children refuse to go anywhere with their father, I would like you to exercise your emergency powers and take them into care.
"Those are the three options: they go home with dad or they go home with the director. They are not leaving this building with mum."
He added: "If you need the assistance of police or security, downstairs will help with that."
However, neither police nor the social workers were willing to physically force the children, who were described as "verging on hysterical", into a refuge or into their father's care.
One of the police officers told Mr Harman the children were in "a highly aggressive, agitated and hysterical state" and one social worker tried to explain it would be impossible to force the children to go with the father, since it may "see them break away, or run away, and be vulnerable on the streets".
Mr Harman conceded defeat, saying: "These children have now been present in this court since 11.30am, and accordingly have been here for the best part of eight hours and have maintained a steadfast refusal to leave (the court) with the father."
He said the children's mother had helped whip "them into a frenzy" about being sent to a refuge, and so he agreed to let the children leave with a maternal aunt. Their mother was banned from any contact with them for a month, including by mobile telephone and email. She was also banned from going within 500m of their school.
The mother has told The Australian the order removing the children was overturned after a month, with no explanation.
"They came back to me, and they are still with me, and I never heard another word from the court until I suddenly got that apology (on November 9)," the mother said. "He did so much damage to my children, I believe he should be sacked."
Mr Harman was asked to stand down from the court last month while he received counselling for a series of judgements that had to be overturned on appeal. In one case, he revealed he had a sexual relationship with the lawyer who was acting for the wife, and then refused to disqualify himself from the hearing.
Mr Pascoe said he had been made aware of "some complaints" against Mr Harman, who had "agreed to be restricted to non-sitting duties". Mr Harman has since resumed hearing cases at Parramatta "on a limited basis" and is subject to continuing review of his performance. He did not respond to a request for an interview.
Mr Harman was appointed by federal Attorney-General Robert McClelland in July last year. In a statement, Mr McClelland said he was "aware of concerns raised in relation to Federal Magistrate Harman in the performance of his judicial duties".
Under the Federal Magistrates Act, magistrates "must not be removed from office, except by the Governor-General, on an address from both Houses of Parliament . . . praying for his or her removal on the grounds of proved misbehaviour or incapacity".
Wayne Butler of the Shared Parenting Council saidFederal Magistrate Harman has gone out on a very thin branch to try and recover contact and a relationship for the father. It seems all a mother has to do to exclude the father from the children's lives is refuse to co-operate, and, or, get the children to refuse to co-operate.
You're even rewarded with an apology from the Chief Magistrate for "the distress suffered by you, your children and your family".
Of course, not a word about the caring, responsible father who is denied the company of his children
These children, from reported accounts, seem to have been whipped into a frenzy by the mother to ensure they would not follow the Honourable Federal Magistrates direction and orders, and for a year have been kept from any contact with the father who has been exterminated from the children's lives by the mother. It is hard not to have the greatest sympathy and admiration for Federal Magistrate Harman who has tried his very best to find a resolve to the situation by having to order such measures. Faced with such venom and entrenched hostility against the father what else could the Federal Magistrate do. He did his very best to get some sense out of a terrible situation and should be commended for doing so.
Email the Shared Parenting Council of Australia and we will take your feedback to the Attorney Generals office and any relevant comments to Federal Magistrate Joseph Harman…
Mr Joe Harman
Mr Harman holds a Bachelor of Laws from the University of Sydney and was admitted to practice as a solicitor by the Supreme Court of New South Wales in 1986. He has nearly 25 years experience in the law and has specialised principally in the area of Family Law. Mr Harman has been Director of the Cottage Specialist Family Law Centre and Penrith Family Mediation Centre since 2008 and 10 years prior to this was Sole Practitioner of Harman & Co, specialist family law solicitors in Penrith NSW. He is also a sessional lecturer in family law at the University of Western Sydney, a Family Dispute Resolution (FDR) practitioner privately and previously with Unifam and Relationships Australia and a trainer in FDR with Centacare West and Legal Aid. Mr Harman is on the panel of arbitrators for the Family Court of Australia and the Federal Magistrates Court and the Legal Aid Commission of NSW panel for the Family Court and Childrens Court jurisdictions.
Mr Harmans appointment commences in June 2010.