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Selling ice to Antarctica

Some characters are so charismatic they could sell ice to Antarctica (although in the context of global warming, perhaps that’s not such a difficult job). We often encounter people who are so convincing that we lower our barriers and believe them, even where there are no rational grounds for doing so.

This appears to have been the case in Penner v Penner [2018] FCCA 3557. The family court of Australia issued a recovery order requiring that the father of three children return them to live with their mother. The police declined to act on the recovery order.

According to Judge Altobelli, the father told the police that the mother and her boyfriend were neglecting and abusing the children. The police subsequently interviewed the children, who corroborated the father’s statement. The police also went to the father’s house (where he was living with his parents) to check on the children, who appeared to be fine.

The police were aware that the mother had an apprehended violence order in place against the father (which the father had breached), that the father had threatened to kill the mother and that he was reported to have mental health issues. However, the police still refused to act on the recovery order and instead referred the matter to the department of family and community services.

The family court ultimately ordered the father to return the children to live with their mother, on the basis that there were fewer risks of harm in the mother’s household than in the father’s. An important factor in making this decision were notes taken by various teachers and counsellors at the children’s school. This objective evidence suggested that the oldest child, in particular, attended school more regularly and was happier in her mother’s care.

It would be easy to believe that the police acted capriciously or inappropriately in failing to act on the recovery order. However, the court accepted “unequivocally that the decision made by …[the] police was made bona fide in the belief that it was not in the best interests of the children to execute the recovery order”. Penner v Penner [2018] FCCA 3557 at [55].

So, what can we learn from this case? Perhaps that convincing liars can mislead even professionals, such as the police. That sometimes perpetrators of family violence can appear to be protective when they are not motivated by their children’s best interests. Possibly that we should trust, but verify. Particularly in the context of family violence.

Verification should start with the immediate family but not end there. Teachers, doctors, nurses, counsellors – any professions with whom children interact are able to be a strong witness for the truth. In this case, the school’s care and concern for the children was a key factor in ensuring their safety. There’s a lesson in that for all of us.

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