Albert and Chalmers

[2013] FamCA 503

FAMILY COURT OF AUSTRALIA

ALBERT & CHALMERS [2013] FamCA 503

FAMILY LAW – CHILDREN – Application sought by father for the children to attend upon a counsellor or psychiatrist – Children clear views that they do no not wish to see the father – Family Report prepared recommending children do not attend further counselling – Father’s application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Albert

RESPONDENT: Ms Chalmers

FILE NUMBER: PAC 2557 of 2009

DATE DELIVERED: 11 June 2013

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 11 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented Litigant

SOLICITOR FOR THE RESPONDENT:

Mr De Mattia

John R De Mattia

SOLICITOF FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Hughes

Legal Aid NSW

Orders

1. That I do not propose to make any order for the children to be seen by any professional, or to be involved in any form of counselling or therapy for any purpose, and particularly for the purpose of re-introducing them to the father.

2. That I discharge all existing Orders made by myself or any other judicial officer previously in these proceedings.

3. That I dismiss all outstanding applications and cross-applications.

4. That I remove all issues from the Active Pending Cases List.

5. That all material produced on subpoena be returned at the expiration of fifty-six (56) days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Albert & Chalmers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

File Number:   PAC 2557 of 2009

Mr Albert

Applicant

And

Ms Chalmers

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The matter before me this afternoon concerns the children of the parties.  Those children are M, who was born in October 1997, and S, who was born in December 2000.  The current matter has been before various Courts for a very extensive period of time.  Final Orders were made, as I understand it, in the Family Court in 2006, following a hearing.

2. My understanding is that Orders made on that occasion were for the parties’ son to have time with the father, in accordance with certain recommendations that may be made by a paediatric psychiatrist, and the father was to have time with the parties’ daughter, after four periods of supervised time, each alternate weekend from Saturday to Sunday.  That time never occurred with either child.

3. This matter was recommenced in this Court in 2009 when the father commenced contravention proceedings against the mother.  The matter first came before me on 31 March 2011 and has remained on my docket since that time.  An order for a report was made on 9 August 2012.  Ms A, a Family Consultant of this Registry, has prepared that report, and her report bears the date of 3 May 2013.  I will make that report Court’s Exhibit A in today’s proceedings.

4. As I understand it, whilst the application before me may be very wide reaching in its effect, it is, of itself, straight-forward.  The father says that the recommendation made by Ms A is one that must not be followed in the circumstances of this case.  The recommendation contained in paragraph 59 of her report is that an order that the mother take the children to counselling as the father has requested is not recommended.  In lieu thereof, that which the father seeks is an order that the children be made available to a person, whose identity is yet to be determined, but which he says will be determined with the assistance of Dr B, who is present with him in Court today.

5. The precise object of an attendance upon such a person seems to me to be unclear.  The father does not identify what would be sought to be put before the Court or relied upon in respect of or as a result of any such report.  There is no concrete suggestion for the funding of such a report other than the father saying that the cost of it should be borne equally between the parties. 

6. Mr De Mattia, who appears for the mother, opposes the making of any order requiring further consultation with any professional.

7. Mr Hughes, the Independent Children’s Lawyer, has taken me, very helpfully, to various paragraphs of Ms A’s report.  He also takes the view that there is nothing of benefit to the children by requiring them to be subjected to further counselling and/or interviews and, indeed, he posits that such a course may be positively detrimental to the children. 

8. The father clearly seeks to undo what he perceives as an enormous wrong done to him and, to a lesser extent, to the children.  It is his view, and has been so since the matter first came before me, that the mother has deliberately undertaken a course of conduct, with the assistance of various professionals, and particularly a Mr C, psychologist, about whom I have already made comments about on previous occasions when this matter has been before the Court, in an attempt to exclude the father from the children’s lives. 

9. I am not in a position to make a concluded finding.  On the issue that I am to determine today, I note, however, that regardless of how it has come about, the children clearly are expressing to an expert, a person equipped with interview techniques and the requisite knowledge, that they do not wish to see their father.

10. It will be recalled that when the matter was mentioned earlier today I offered the father the opportunity of bringing Ms A before the Court so questions could be asked of her.  As was his right, he declined to do this.  The situation that I therefore have is Ms A’s report, which I must accept at face value and to which I must give particular weight on the basis that she has interviewed the children, is before me.  The father, for his part, has given myself and the other sides a written submission.  He further relies upon material by a Dr E in relation to matters of this kind, and he produces for me a document from a newspaper in relation to matters not unlike this.

11. The father, to my mind, has reached the end of the road.  That is a sad fact.  It is always something that this Court looks upon with distress that children have been, however it has occurred, placed in a position, and without attributing fault, where the children do not have a relationship with one parent, when that parent is particularly anxious to have a relationship with the children.  The fact of the matter, though, is that it is not always the case where children should have a relationship with their parents because one parent particularly asserts that should be the case.

12. I accept that the order I am being asked to make is not, of itself, a parenting order. However, it occurs to me that I should have some regard to the matters that are set out in section 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) in endeavouring to reach a conclusion. I am aware that the primary considerations require the need for a child to have a relationship with a parent, balanced against the need to protect the child. It is, in this case, a true balancing exercise. I am not sure on the way the father has presented his case, and this is not said critically, that I am aware of what it is he intends to do with any report if he obtains one. Unfortunately, he was not able to explain this connect to me.

13. It seems to me, therefore, that I am left with this very real balancing exercise. I turn then to subsection 60CC(3) of the Act to deal with the matters that might assist me. I turn to the views of the children (subparagraph (a)). The children are not young. It seems to me that they have expressed clear views. The father, as I understand it, is saying to me that I should look beneath those views to the factors underlying and find that the children have in some way been alienated or turned against him. I am not able to do this on the evidence available to me. I am therefore left with the children’s expressed views that they want nothing to do with their father.

14. As to the nature of the relationship of the children with each of the parents (subparagraph (b)), the children clearly have a close relationship with the mother and are dependent upon her for all things in their young lives.  The relationship with the father is, at any level that can be examined in this short hearing, non-existent. 

15. I am satisfied that this is a case where I should also examine the ability of each parent (subparagraph (c)) and the capacity of each of parent (subparagraph (f)).  This is a matter again where the mother has provided for the needs of these children.  The father asserts, as I understand his case, that it lays at her feet and the feet of people she has sought advice from or involved with the children, such as Mr C, that have caused this situation whereby the children say they do not want to see him.

16. There are two points I would make here: the first is that I am unable to make any finding on the material presently available to me as to that point.  The second, tragically, but in my view recognising the reality of the situation, the point in time can be reached where it must be said, regardless of the cause, the situation is now in place where the wishes of these children are that they do not see their father are such that, on the material before me, the likelihood of those wishes being addressed or reversed in counselling are slight indeed.

17. There may well be experts that would say something to the contrary.  Indeed, as I understand it, the father says that the doctor to whom he refers, that is Dr E, is just such a person.  However, I am in possession of a report prepared by a vastly experienced Family Consultant of this Registry, which has involved her speaking with the parties and with the children.  I have mentioned the parties because Ms A made certain observations of the father in her report which, in my view, reflect what I have seen of the father throughout the course of these lengthy proceedings when they have come before me.

18. As I say, the point sometimes can be reached in proceedings before this Court, and this is, in my view, such a case, where precisely how it has come about is no longer as important as the fact that the children are now expressing a clear and unequivocal view.  Paragraph 44 of Ms A’s report indicates the children have a strong wish to have no contact with their father.  To my mind, it is important to read the remaining part of the paragraph, as set out below:-

    There could be no simple explanation for the children’s stance against their father despite [the father’s] view that [the mother] had alienated the children from him.  [The father] used the analogy the children were captured in “a sect” like situation had been “brain washed”.

19. Paragraph 57 of the report says this:-

    The Family Consultant pointed out to [the father] that in general counselling for the children can be an appropriate intervention for children who have experienced prolonged conflict between their parents but in [M’s] and [S’s] case the parental conflict is so high and the involvement of the Court so long that the children are unlikely to experience such counselling as helpful and they would likely refuse to attend such counselling.  [The father’s] response was that [the mother] had to be made to follow the Court Orders and take the children to counselling because they needed to be free from their mother’s influence.

20. Paragraph 58, as from the second sentence, is in the following terms:-

    However, considering the children’s current attitude towards [the father], it is doubtful that counselling no matter how skilful could restore a balanced view in the children.  It is possible that ordered counselling would have the opposite effect; that the children would perceive that father is once again harassing them and their mother and harbour further resentment against him.

21. I return to the balancing exercise created by section 60CC(2) of the Act. A meaningful relationship is, of course, desirable. “Meaningful” is not a matter of quantity, but of quality. To be a “meaningful” relationship, it would need to confer some benefit upon the children. Balanced against that is the risk to the children, which has been clearly outlined and identified in Ms A’s report, that were I to make the children see a further expert in the present circumstances of this matter, would in all probability produce not only no positive effect for the children, but would engender a negative effect and possibly deepen the children’s feelings against their father.

22. In all the circumstances of this case, and with some real regret, I have come to the conclusion that to compel these children to undergo any further form of counselling or therapeutic intervention would not be in their best interests.  Accordingly, I do not propose to make any order for the children to be seen by any professional, or to be involved in any form of counselling or therapy, for any purpose, and particularly for the purpose of reintroducing them to the father.

23. The father agreed that if no such order were made (for the children to see another expert), the matter could not progress.  This, in my view, must be an end to this matter.  I therefore dismiss the father’s case currently before me, along with all outstanding applications and cross-applications in these proceedings.  I order that all issues be removed from the pending cases list, and I order that all materials produced on subpoena be returned at the expiration of 56 days.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Justice Collier delivered on 11 June 2013.

Legal Associate:      

Date:    2 July 2013