Judge's ruling warns Brethren

The Age, Australia/February 21, 2007
By Michael Bachelard

A judge has given three members of an Exclusive Brethren family suspended jail sentences for denying a father an access visit to two of his children.

The judgement was an emphatic statement by the Family Court that it will not tolerate the Exclusive Brethren continuing to flout court orders in pursuit of the sect's policy of strict separation of its members from those who have left the church.

Justice Robert Benjamin imposed four-month suspended prison sentences on the children's mother, a son and her son-in-law.

"What happened in this case is that the court said to these people, 'Do not breach these orders', in circumstances where the finding was clear that the separation of the children and their father was at the higher end of emotional abuse," Justice Benjamin said.

"I made it absolutely clear. Yet some two or three weeks later, a breach occurred. In this case a term of imprisonment is entirely appropriate."

Justice Benjamin concluded that the family had put pressure on the children not to go on the visit.

"These children are entitled to have a relationship with their father, and the steps that the respondents have taken to prevent the relationship are extraordinary and appalling."

The son and son-in-law were found to have aided and abetted the mother, and got the same sentences.

Justice Benjamin suspended the sentences because of the otherwise good record of the mother, her son and son-in-law, and because of the young men's youth. However, they will go to prison if, in the next 12 months, they do not comply with the orders for access, or if the two young men go to the place where the children, aged eight and 13, are handed over.

The mother is not allowed to take any male member of the Brethren with her when she hands over the children, because the judge found men exercised power over women.

He also ordered the mother to pay all the costs in the case, including the father's and those of the independent children's lawyer.

The case arose from a December 21 judgement that the father be given regular access to the two youngest of the couple's eight children, aged eight and 13. But when he went to pick them up at the mother's house for a week-long visit on January 14, he found his son and son-in-law there, even though they were supposed to be at church. The young children, a boy and a girl, told the father they did not want to go with him.

"I knocked on the door, the children came to the door and said, without emotion, that 'I'm not coming with you'. I said why. They said, 'I'm just not'. I said to (my daughter), 'The judge did say that it's OK'.

"And immediately at that point she turned around and looked up at her mother and gave a smile, which troubled me, as if some preconceived plan was in place," the father said.

"What I saw was (one young man) standing in the doorway with his arms folded … an overbearing attitude. (The other young man) was standing on the other side of the door … there were four adults there, and I saw intimidated children."

But the mother gave evidence that the children were presented for the father to take, their bags were packed and on the veranda, and she had told them they were allowed to go. But during a two-hour stand-off, a police officer was called but could not deliver the children to the father.

The mother admitted under cross-examination that members of the Exclusive Brethren had deposited more than $50,000 into a bank account for her to pay her legal costs.

Costs are escalating quickly after the mother briefed a senior Melbourne QC, Noel Ackman, to appear in a motion to have the judge stay his orders.

The mother said the money was a loan. She denied that it was part of a "fighting fund" amassed by the Brethren to fight Family Court cases.

"It's a system of society of love that you probably don't understand," the mother told the father's counsel, Terry McGuire.

She also admitted to speaking for about 10 minutes to Exclusive Brethren world leader Bruce Hales 10 days after the failed access visit, on January 24.

She described Mr Hales as a "family friend" and denied he had influenced her about the case.

During evidence, the mother laughed when asked if there was a photograph of the children's father in the house.

Asked if she had told him that he became a grandfather late in January, she said: "That's not my responsibility."

"That's extraordinary," Justice Benjamin said. "How sad it was that this house was so poisonous to the father that they could not even have a photograph of the father in their home."

The judge rejected the mother's argument that the children were acting from free will, saying these "were not the views of these children but of the adults who surrounded them".

He said he found the mother, her son and son-in-law evasive, and preferred the evidence of the father.

The mother also gave evidence that if according to her conscience the law of the land conflicted with God's law, she would reject it.

Justice Benjamin had earlier rejected an application by Mr Ackman, QC, for a stay of his orders. Mr Ackman argued that the children were entitled to exercise their free will not to see their father, and that his insistence that he be given access "can hardly be a considered decision of a man who says this is in the best interests of the children".

After losing that argument, Mr Ackman launched a second action, this time asking Justice Benjamin to disqualify himself, on the grounds of bias, from hearing the case brought by the father that the mother had contravened the order. Justice Benjamin refused to disqualify himself.

The judge also refused an application by the mother's other lawyer, Roger Murray, to close the court to The Age.