Two children were dragged unnecessarily from their beds at 2am by police officers and shifted to their grandparents’ care because of a “drastic” decision by a family law judge that caused both children ongoing trauma and the younger boy to become suicidal, an appeal court has found.
Sydney-based Federal Circuit Court judge Bruce Smith decided during an evening telephone hearing to order Australian Federal Police officers to remove the children from their father’s home and deliver them to their maternal grandparents. The hearing was attended only by the independent children’s lawyer.
That order should not have been sought by the lawyer or made by the judge, a full bench of the Family Court ruled in the case, known as Rader & Rader.
The boy began self-harming in his grandparents’ care, became suicidal and was hospitalised. The appeal court said the “immediate and serious risk” to his life, caused by his mental health deterioration, “developed after he was removed from his father’s care”.
The litigation had initially involved the children’s parents, but at a court hearing earlier that day Judge Smith had asked the maternal grandparents if they wished to intervene in the case.
The children’s lawyer had told the judge the case was “difficult” and was “going to be which is the best of the bad bunch”.
This was “no way” to have spoken about the children’s parents, the appeal judges said.
The mother had mental health and drug abuse issues, while the boy’s older sister had told a counsellor the father could be a “bully” and sometimes passed out drunk.
Judge Smith decided to shift the children to their grandparents’ care — without hearing any evidence or submissions from them and without asking how they proposed to look after them — until the court could decide on their permanent care arrangements.
At the hearing later that night, the children’s lawyer told the judge the grandparents had been unsuccessful in gaining custody of the children; the boy had refused to leave the father’s house and the girl had run away.
Judge Smith had refused a request by the father, who was unrepresented, to delay the hearing earlier in the day so he could respond to the proposal to move the children to the grandparents’ care.
The children had lived with the father for 11 months and both had been doing well at school.
Family Court judge Murray Aldridge said while the children had experienced some difficulties in their father’s care, there was no reason an order needed to be made that day. The immediate recovery order also should not have been sought or made, he said.
“It is beyond me to identify any urgency or risk to the children that justified such drastic, peremptory, ex parte action in either seeking the recovery order or in granting it,” Justice Aldridge said.
“Both children described their distress at this course and the continued upset it has caused them.”
The full Family Court ordered the children to be returned to their father’s care — two months after they were removed. Justice Aldridge said “generally speaking” it was undesirable for children to be moved from one home to another then back again, especially if there was a prospect they could be moved again at the final hearing, but it was in their best interests.
Law Council of Australia president Pauline Wright said the case showed the importance of specialist family law judges and a standalone court. She said the family law system was overwhelmed and in urgent need of funding.
“With some judges struggling under a crushing caseload of over 600 matters and some only having a generalist background doing urgent and complex family law matters, there is a real risk of poor outcomes for families and children at risk,” she said.
“In this case, it almost had tragic consequences.”
Judge Smith was appointed by Attorney-General Christian Porter to the Federal Circuit Court in 2018. It is understood his primary expertise was in personal injury, insurance law and commercial litigation and that he had more limited family law experience.
A spokeswoman for the Family Court and Federal Circuit Court said they did not comment on individual cases.