Abramsson & Abramsson
[2024] FedCFamC1F 658
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Abramsson & Abramsson [2024] FedCFamC1F 658
File number(s): BRC 5917 of 2022 Judgment of: BAUMANN J Date of judgment: 11 September 2024 Catchwords: FAMILY LAW – CHILDREN – Oral application made by the Independent Children’s Lawyer to change the children’s residence – Where the mother informed the Court that she could not support or facilitate the children spending any time with the father – Interim Order made for the children to live with the father until the final hearing listed in less than three months Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Keane & Keane (2021) 62 Fam LR 190
R & C [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 11 September 2024 Place: Brisbane Solicitor for the Applicant: Finnigan Smith Solicitor for the Respondent: Aegis Law Group Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 5917 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ABRAMSSON
Applicant
AND: MS ABRAMSSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
11 SEPTEMBER 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That all previous parenting Orders be discharged.
2.That the father shall forthwith attend the B School and the B Early Learning Centre to collect the children X born 2018 and Y born 2021 (collectively “the children”), and that thereafter the children shall live with the father.
3.That the mother shall be and is hereby restrained from attending the B School and B Early Learning Centre and from contacting any third party and arranging or seeking to arrange that any third-party act as her agent on her behalf to retrieve or seek to retrieve the children from the said school and Early Learning Centre.
4.That the father shall confirm in writing by his solicitor to the associate of Justice Baumann by email sent to chambers and copied to the mother by her solicitor and to the Independent Children’s Lawyer when he has the children in his care.
5.That the father and the Independent Children’s Lawyer have leave to provide a sealed copy of these Orders to the school Principal and the Early Learning Centre Director and to any other appropriate staff members of the B School and B Early Learning Centre, so as to give effect to these Orders, and the staff are REQUESTED to give effect to these Orders.
6.That the mother and her agents shall be and are hereby restrained from attending or remaining at any address at which the children live with the father, the B School and B Early Learning Centre, and the children’s treating therapeutic practitioners.
7.That the mother is hereby authorised and permitted to contact the B School and B Early Learning Centre and the children’s treating practitioners, about the children, and to request to be provided with information about the children (at the mother’s own expense, if any) and to discuss the children, subject to the discretion of the school/early learning centre and the children’s treating practitioners.
8.That the children’s time and communication with the mother shall be suspended until 4.00pm on 27 November 2024, unless otherwise ordered.
9.That the father shall ensure that the children’s enrollments and attendance at the B School and B Early Learning Centre are maintained in 2024.
10.That the father shall forthwith contact the treating psychologist of the child X, Ms D at C Psychologists, and arrange to make and shall then facilitate X’s attendance at an urgent appointment for X on Ms D for therapeutic support to manage the change to the children’s parenting arrangements, and the father has leave to and shall provide to Ms D a sealed copy of these Orders and a sealed copy of the Affidavit of Ms E affirmed on 9 September 2024, and the father shall thereafter continue to facilitate X’s attendance on Ms D at appointments made by Ms D.
11.That the father shall forthwith contact an appropriately qualified therapeutic professional and arrange to make and shall facilitate Y’s attendance at an urgent appointment for play therapy or such other form of therapy as is determined by the professional as developmentally indicated for the provision of therapeutic support for Y to manage the change to the children’s parenting arrangements, and the father has leave to and shall provide to the practitioner and to any referring GP, a sealed copy of these Orders and a sealed copy of the Affidavit of Ms E affirmed on 9 September 2024, and the father shall thereafter continue to facilitate Y’s attendance on the practitioner at appointments made by him or her.
12.That the father has leave to and shall provide a sealed copy of these Orders and a sealed copy of the Affidavit of Ms E affirmed on 9 September 2024 to his treating psychiatrist Dr F and the father will forthwith contact Dr F and request to make an urgent appointment to attend and shall attend to discuss these documents.
13.That the mother will provide a sealed copy of these Orders and a sealed copy of the Affidavit of Ms E affirmed on 9 September 2024 to her treating psychologist Dr G and counsellor Ms H and the mother will forthwith contact Dr G and Ms H and request to make an urgent appointment to attend and shall attend to discuss these documents.
14.That leave to the Independent Children’s Lawyer to provide to the Director-General, Department of Child Safety, Seniors and Disability Services a sealed copy of these Orders and a sealed copy of the Affidavit of Ms E affirmed on 9 September 2024.
15.That the father shall contact the Department of Child Safety, Seniors and Disability Services and seek a referral to J Family Services for advice and referrals to any support services that may assist him to ensure he is meeting the children’s needs and shall upon receiving such referrals take all reasonable steps to enact those.
16.That the Independent Children’s Lawyer be at liberty to apply to have the matter re‑listed urgently if necessary.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abramsson & Abramsson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The father, Mr Abramsson, is a qualified medical professional, but not currently working. He is aged 44 years. The mother is now engaged in home duties, but a clearly intelligent person, soon to turn 41 years. Their relationship commenced in 2010 and with a marriage in 2013, that ended with separation in April 2022. The relationship bore two children, X born 2018, who is now six years of age and a student at B School. Y, their son, was born 2021. He is now three years of age and also attends B School at the Early Learning Centre.
All the evidence before the Court reveals that this matter has been consumed by chronic conflict, disputes and unrelenting allegations, one against the other, at least since separation, which itself occurred in controversial circumstances.
All the evidence establishes, including the independent evidence from Ms E, who provided a family report initially which was filed on 18 October 2022 and a more recent report, which was filed on 11 September 2024, which arose primarily from interviews and observations of the parents and the children, with both the mother and father on 2 August 2024, and I am satisfied that these children have been exposed to the parental conflict.
Both parents assert it is the other person who is responsible and/or the initiator of the conflict.
I am satisfied that there are current domestic violence proceedings unresolved in the State Magistrates Court, arising from a Temporary Protection Order and an Application pursued, I believe, by the police that the father has on the evidence of the mother breached that order. Those proceedings have not been concluded. The evidence has not been tested, and therefore there are no findings at this stage. I am conscious of that family violence Order.
That Order, of course, provided the basis for the parties to be offered the opportunity for lawyers under the Commonwealth Cross-Examination Scheme enacted pursuant to s 102NA of the Family Law Act1975 (Cth) (“the Act”) for the trial that has been set already before me for three days commencing on 25 November 2024.
Mr O’Brien, who appears before the Court today, is a recipient of such a grant, and will be acting for the mother in both the parenting and property proceedings at the trial.
Ms Smith is privately funded by some arrangement, and she also holds instructions to appear for the father in respect of the property and parenting proceedings.
The property proceedings are, themselves, a context for the ongoing conflict between the parties. That is apparent from the current family report and from earlier decisions the Court has had to make. There is real risk that this Court will find that there are no assets, but the mother says otherwise. The father claims he has no income; the mother says otherwise. These are issues for trial.
I made it clear to the parties today, in view of the way in which the parenting issues have now escalated, that both the parenting and property matters should be prepared for trial to commence on 25 November 2024, but that if, for some reason, I take the view that it will not be possible to proceed with both, then the parenting matter will proceed.
The Court is entitled, in matters of urgency, to give short reasons. What constitutes short reasons, no one really knows – but it will enable me, at least – I think, in view of the pending impact of any order I am being asked to make by the Independent Children’s Lawyer today, need to be short to be able to be put into any real effect immediately. The Reasons will illuminate the pathway to my decision.
There are a number of risks in this case asserted by the mother against the father and the father against the mother. They are risks which can only properly be determined at a trial where controversial evidence can be tested, and findings made and the risk to the children he presents.
However, there is one feature of the post-separation relationship since April 2022 that is not controversial, and that is that despite orders of the Court; family reports and urgings, the mother has not genuinely felt capable of facilitating the children spending time with the father.
Now, as Mr O’Brien quite properly identifies, the mother says, based on her evidence from, no doubt, her own beliefs, but also Dr G (her treating psychologist), that she is unable to support any orders genuinely because of the genuine fear she holds about the father.
Ms E, the family report writer, does not accept that proposition as a social scientist, but I am not bound by that conclusion reached by her.
More importantly, Dr G’s most recent report – albeit 12 months ago – stated “although the mother would find it difficult to comply with any orders of the Court, she felt that she could be supported to manage that.”
As to whether the well-known decision of R & C [1993] FamCA 62 (more recently restated by the Full Court in the decision of Keane & Keane (2021) 62 Fam LR 190) applies in this case, will be, again, a matter for trial. But it is not, at this stage, in my view, an absolute certainty it will.
Family report
Earlier today, the most recent report of Ms E was produced to the parties. It was produced in circumstances where Ms E had identified in her report the need for the report to be given to the parties when they had the benefit of either legal advice and support or a health practitioner’s support (see paragraph 154). Ms Lilley, the highly experienced Independent Children’s Lawyer, provided a copy of the report to the parties earlier today. Thankfully, both have had a chance to read it and have the benefit of independent legal advice.
The report – much of which will be challenged by the mother through cross-examine or otherwise; some of which may be cross-examinable by the father – ultimately comes to the conclusion that the children should live with the father and that the children should have no contact with their mother for a period of three months “to provide for a period of adjustment.”
Such a recommendation was always going to be confronting for the mother, I accept. The fact that it would be confronting was apparent from the way in which she dealt with the stresses of the family report interviews and observations, at least on 2 August 2024. I have seen the mother distressed in my Court. She has explained, both to Ms E, and to this Court in earlier affidavits, that her level of reaction is entirely associated with her treatment at the hands of the father during the relationship; and to the fact that she has been, in effect, financially coerced; controlled and abused by the father’s failure to support her and the children, not only in terms of the day-to-day living expenses, but also in supporting the children to maintain their education at B School.
The mother has consistently and fiercely agitated that it is in both children’s best interests that they have no relationship with the father at all. Her comments to Ms E in the report, where she claims the father is a “sociopath” (see paragraph 60), where she says keeping the father away from the children and that would be the “greatest gift” she could give them (see paragraph 78), and similar comments, are capable of being accepted, in my view, and all the evidence, as her genuinely-held view.
Ms E had prepared an earlier report dated 17 October 2022, in which she identified the material available at that stage, including a substantiation of emotional risk by the Department of Children, Youth Justice and Multicultural Affairs (as it was then known) (“the Department”) of each parent, arising from the conflict, the damning result of any investigation by the Department, upon each parent.
However, the updated family report dated 9 September 2024, for the reasons clearly identified – which are challengeable, I accept – support her conclusion, which I may or may not accept at trial, that the children should live with the father, and that there should be a period of adjustment to returning to a relationship with their mother.
With a trial pending on 25 November 2024, it was open to the Court to receive the report and to take the view that it will all be sorted out at trial. Many judges would follow that approach. In fact, often I have followed that approach. However, Ms E’s report is the first independent, recent assessment where there has been a clear recommendation for a change of residence. More importantly, Ms E very clearly identifies why, in her view, the father does not present to her as a risk of harm to the children. Although I am not obliged to accept that view, on an interim basis, I did not ignore an experienced social worker, who has longitudinally assessed this family and the parents, who formed that view.
Risks to the children
Arising from that view expressed during the course of today’s urgent submissions, arising from a further revisiting of an earlier Application by the father to change the interim orders, the Independent Children’s Lawyer proposed certain orders, which I will return to shortly.
At the very least, Ms E’s latest report gives some comfort to the Court that the children would not be at any immediate risk in the care of the father. This is a case where the potential for physical risk in either the mother or father’s care is not significantly made out at this stage, although each party allege concerns against the other party.
Physical risk
The mother, for example, says that during contact visits she noticed some bruising on the children. She says, and I have read her say to Ms E, that she felt that the contact centre did not properly supervise the children’s time with the father. The mother asserted that was another example of the children being at risk. The father, of course, denies that and, in fact, the supervisor of the contact centre said such allegations have no foundation, which the mother does not agree with.
Emotional risk
Since separation, these children have been exposed to the absolute worst of their parents’ behaviour, however caused, whether shaped by their own mental health issues or otherwise – to emotional abuse.
Ms E says the children will continue to be exposed, in the mother’s care, to that abuse. She provides plenty of examples, as observed by her, about the mother’s attitude to the children; about the parentification that X may be required to undertake because of the mother’s inability to parent and the observations the report writer made about X and Y during observations. These were the main reasons why Ms E regards a change of residence to be appropriate, to protect the children from the mother’s behaviour.
Now, of course, I accept that what might be said to be, as Ms E says, “intense parenting”, might be seen by somebody else as a particularly vigilant, active encouragement of children’s activities, such as X’s – at six years old – four extracurricular lessons a week, including, then, additionally, weekends and other things, which, no doubt, this child says she enjoys and probably does. The father says, of course, that that is a manifestation of the mother’s inability to separate the children’s needs and to create balance in their life from what she desires for the children. Again, a triable issue.
When submissions were being made today about the proposition asserted by the Independent Children’s Lawyer as what I should do today, which is marked as Exhibit 1, namely, an immediate change of residence and moratorium on conditions until at least the trial, I identified, through the submissions with Ms Lilley, other options.
Other options
An option that the Court identified and put to both parties was, based on the report of Ms E, and notwithstanding the concerns the mother says about being able to comply with orders, that, in fact, the children should commence immediate time unsupervised with the father.
Such proposal could have occurred over some of the forthcoming school holidays. For weekends, perhaps not every weekend. However, that option was entirely foreclosed by the mother’s clear and direct instructions to her legal representative today, who I gave some extra time to ensure his instructions were clear and direct, that the mother would need to support such orders. Perhaps consistent with her belief and consistent with her actions since separation almost, she says that she will not facilitate any time at all.
The only way the Court could accept that today, and if the Court accepted it today, would be to discharge earlier Orders where time with the father was prescribed. Ms Lilley, perhaps not surprisingly supported by Ms Smith for the father, urges a more interventionist order to occur immediately, as set out in Exhibit 1. That is for the father to collect the children within the next hour from B School; to take them home, and to retain them until a trial or other order of the Court, and the mother to spend no time with the children at all until the trial.
This is a very difficult decision, as they always are on an interim basis in urgent circumstances.
I have no doubt that the mother would be significantly distressed by an order in these terms. Even as I give these oral Reasons, the mother is exhibiting that distress in court, and I do not criticise her for that reaction. However, as the Act makes clear, the guiding principle that has to be applied, now revisited in the statutory pathway of ss 60CC(1),(2) and (3), is what is in the best interest of these children?
In circumstances where the observations of the father with the children and the overwhelming evidence and support of Ms E that the father can manage the children’s care at some level, would support the children having unsupervised time with the children from today, on balance, in my view. In circumstances where the mother could not support that – that of course is a fact I need to take into account.
But more importantly, Ms Milley, at some length and despite what would be, I hope, seen to be fair but robust testing of her propositions with the Bench, says that her major concern as Independent Children’s Lawyer is that if there is not a change of residence today on an interim basis, with the report that is now available having been read by the mother, there is a very real risk that the mother’s mental health could exacerbate her capacity to meet the needs of these children and thereby cause further possible emotional risk to them.
What orders are in the best interests of the children?
So the decision I am being asked to make today is effectively the complex balance between maintaining these children having no relationship opportunity with the father at all – something that has been, despite orders of the Court, unable to be facilitated because of the mother’s beliefs about the father. This has been shaped either by her lived experience; her view of mental health of the father; her view of the father’s conduct; her financial circumstances; or just the way she feels – compared to giving these children an opportunity to spend some time with the father, which can only occur and can continue to occur by the children living with the father for a short period of time.
I have formed a view that the position adopted by the Independent Children’s Lawyer and articulated before me should be accepted on an interim basis.
The orders that appear at the commencement of these Reasons are in the best interests of the children at this time.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 27 September 2024
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