Aldenberg & Mueller
[2023] FedCFamC1F 53
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Aldenberg & Mueller [2023] FedCFamC1F 53
File number(s): BRC 3467 of 2011 Judgment of: CAREW J Date of judgment: 9 February 2023 Catchwords: FAMILY LAW – Undefended Hearing – Where the applicant mother has filed a notice of discontinuance – Where the respondent paternal aunt seeks sole parental responsibility, for the children to live with her and her husband and spend no time with the mother and injunctions against the mother – where the independent children’s lawyer supports the orders sought by the paternal aunt – where the mother abducted the children and was unable to be located for several years – Where the mother pleaded guilty to contempt of court and was sentenced to imprisonment – Where the children have spent no time and had no communication with the mother since 2017 - Where the children have been in the care of the paternal aunt and uncle following the death of the father in 2021 Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 30 Date of hearing: 9 February 2023 Place: Brisbane Counsel for the Applicant: Litigant in Person Counsel for the Respondent: Mr J. Bunning Solicitor for the Respondent: DA Family Lawyers Counsel for the Independent Children's Lawyer: Ms K. Oakley ORDER
BRC 3467 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALDENBERG
Applicant
AND: MS MUELLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
9 February 2023
THE COURT ORDERS THAT:
1.All previous parenting Orders are discharged.
2.The children X born 2009 and Y born 2010 (“the children”) shall live with Ms Mueller, the Respondent Paternal Aunt (“the Respondent”).
3.The Respondent shall have sole parental responsibility for the children.
4.The children shall spend no time and shall have no communication with the Applicant Mother (“the Mother”).
5.Pursuant to s 11(1)(b)(i) and (ii) of the Australian Passports Act 2005 (Cth) the children are permitted to have an Australian travel document and to travel internationally without notice to the mother or her consent.
6.The Mother is restrained and an injunction hereby issues restraining the Mother from:
(a)Contacting or attempting to contact, or asking any other person to contact, the children Y born 2010 and X born 2009 by any means of whatsoever nature;
(b)Contacting or attempting to contact, or asking any other person (other than her lawyer) to contact the children’s paternal aunt or uncle by any means of whatsoever nature;
(c)Attending, or instructing or requesting any other person to attend, any school attended by the children;
(d)Communicating with, or asking any other person to communicate with, any school attended by the children by any means of whatsoever nature;
(e)Attending, or instructing or requesting any other person to attend, the place of residence of the children and paternal aunt and uncle.
7.The Mother is restrained and an injunction hereby issues restraining the Mother from attending at or communicating with, and from asking any person to attend at or communicate with, any authority or government department or entity or person responsible for administering, or record keeping about, the children’s schooling including but not limited to the Queensland Department of Education, and from requesting to be provided with and from receiving information and/or documents about the children’s schooling.
8.The Principal Registrar of this Honourable Court is directed to refer the 19 page document contained in Exhibit 2 in these proceedings together with a copy of the Reasons for Judgment delivered 9 February 2023 to the appropriate authorities for consideration of whether the mother and/or Ms B or other persons should be investigated for any possible offence under s 121 of the Family Law Act 1975 (Cth).
9.Any outstanding application is hereby dismissed.
NOTATION
A.It is noted that at the commencement of these proceedings the applicant father was MR SENNA and the respondent mother was known by another name. The applicant died in 2021. The mother is now known as MS ALDENBERG and by Order dated 11 November 2021 the mother was substituted as the applicant and MS MUELLER, the paternal aunt, was substituted as the respondent in the proceedings.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
The proceedings concern two children, Y, born 2010 and X, born 2009 (“the children”). The children have lived with their paternal aunt and uncle since the death of their father, Mr Senna, in 2021. They have not spent any time with their mother, Ms Aldenberg (formally known by another name) nor had any communication with her since late 2017.
On 14 October 2022, I set the matter down for a final hearing for five days to commence on 20 February 2023. The dispute at that time was between the paternal aunt, Ms Mueller, and the mother. The mother wanted the children to live with her and for her to have sole parental responsibility but on 30 January 2023 the mother filed a Notice of Discontinuance.
Consistent with the Notice of Discontinuance, the mother did not appear at the compliance hearing on 2 February 2023 and as a result the matter was listed before me today for an undefended hearing. I also note that the mother did not participate in the recent family report interviews. The mother has appeared at the hearing today and confirmed her position remained consistent with her recent discontinuance of her application for a parenting order.
Although the matter is undefended, I am required to review the evidence and consider whether or not the order proposed by the paternal aunt and supported by the Independent Children’s Lawyer (“ICL”) is in the best interests of the children.
I have been assisted by submissions from Counsel for the paternal aunt and Counsel for the ICL. The mother also made brief submissions in which she did not object to the making of the orders sought by the paternal aunt and ICL, which she submits demonstrates insight on her part. The mother also submitted that she has sought to see the children over the past five years but her “ex-husband” had refused her requests.
BACKGROUND
By way of background, I note that a ‘final’ parenting order was made by consent on 9 October 2014 as between the parents. The order provided for the parents to have equal shared parental responsibility and for the children to live in an equal time week about arrangement between the mother and the father. Just prior to the commencement of equal time arrangements, in late 2014, the mother abducted the children. She was unable to be located for three years. The mother was arrested in late 2017 and the children were recovered and placed in the care of the father. During those three years the children did not attend school and were not seen by any medical practitioners.
The mother pleaded guilty to contempt of court and was sentenced in 2018 to a period of imprisonment. The mother was released from prison in 2020.
In 2021, the father was diagnosed with a terminal illness and died five months later. During this period, the children and the father lived with the paternal aunt and uncle. As already noted, the father passed away in 2021. The children have since continued to live in the care of the paternal aunt and uncle with interim orders made for sole parental responsibility in favour of the paternal aunt in November 2021.
When the matter was set down for trial, the parties and the ICL identified the following significant issues requiring determination, at least at that time:
(1)Whether the children are at an unacceptable risk of harm from the mother because of the mother’s beliefs and attitude toward the father (now deceased) and the paternal family, or because of emotional, physical and/or psychological harm;
(2)What weight ought be given to maintaining stability for the children given the significant upheavals in their lives to date;
(3)What weight ought be given to the views expressed by the children;
(4)Whether the applicant and respondent have any capacity to co-parent the children;
(5)Whether re-establishing a relationship between the children and the mother is of benefit to the children;
(6)Whether the children currently have any meaningful relationship with the mother and, if not, whether attempting to rebuild a meaningful relationship is in their best interest; and
(7)What if any injunctions or restraints ought be placed on the mother.
While these proceedings are no longer defended, the formulation of those particular issues will nevertheless inform my determination in a general way about whether the order sought by the paternal aunt meets the best interests of the children.
The mother is 54 years of age and currently resides in a suburb of Brisbane.
The paternal aunt is 64 years of age. She is not in paid employment. Her husband, Mr C, is 62 years of age. He works in the services industry. Their income is sourced from the paternal uncle’s work as well as investment income from a property which they rent. Their home is unencumbered. In her amended response filed 30 September 2022, the paternal aunt seeks orders for sole parental responsibility for the children, the children to live with her and spend no time or have any communication with the mother. Further, the paternal aunt seeks a continuation of personal injunctions against the mother in accordance with paragraph 4 of the Order dated 14 October 2022.
The ICL seeks an order referring certain papers to the appropriate authorities for consideration of whether s 121 of the Family Law Act 1975 (Cth) (“the Act”) (prohibiting the publication of material that identifies persons involved in proceedings) has been breached and for a further injunction seeking to restrain the mother from communicating with any authority or government department about the children’s schooling or requesting any information or documents in relation thereto. The ICL otherwise supports the order sought by the paternal aunt.
APPLICABLE LEGAL PRINCIPLES
As the paternal aunt is not a parent of the children, she brings this application within the meaning of s 65C of the Act, which allows ‘any other person concerned with the care, welfare or development of the child’ to apply for a parenting order.
Pursuant to s 64C of the Act, this Court may make an order in favour of a person who is not a parent.
A parenting order is defined by s 64B(1) of the Act as an order dealing with a matter mentioned in s 64B(2). Those matters include the persons with whom the children live and the allocation of parental responsibility.
Section 60CA sets out that the paramount consideration in deciding whether to make a particular parenting order is the best interests of the children. In determining what is in the best interests of the children, I am to have regard to the matters set out in s 60CC so far as relevant to the circumstances.
RELEVANT EVIDENCE
I have been assisted with an updated family report by Mr D filed 6 February 2023. Although the report has some limitations because the mother did not participate, I note that this is the second report prepared by Mr D, the first one arising out of interviews in October 2021 and involving the mother at that time.
The children have settled well in the care of the paternal aunt and uncle. X expressed that she would like to study law, while also having an interest in drama and technology. She received an award for highest achiever, all over highest for several subjects and the highest student in her grade. Y reports having a love for maths. He was the dux of his class.
Both children have expressed clearly that they do not wish to have contact with the mother, nor do they want any letters or gifts from her and Mr D recommends that their wishes be followed. Although the children indicated no opposition to the mother receiving a copy of their educational records, Mr D counselled against this unless the Court were able to form the view that the mother would not use the information for other agendas.
Mr D provides the following particular observations and opinions in relation to the children:
85.Uncertainty and confusion have been the background to the lives of [X] and [Y], coupled with trauma from disrupted attachment given the three years in hiding with their mother, and the death of their father following their return to his care.
86. Although there were risks, their placement with their aunt has been successful. Their growth is apparent in their social and educational integration, and self-reliance and confidence. There is a maturity and poise in their demeanour, underpinned by a sense of humour, which helps to reduce stress and reframe their fears.
…
88. Their relationship with [Ms Mueller] and [Mr C] are positive. They perceive [Ms Mueller] as an intelligent and protective figure, and [Mr C] as a hard worker and protector who strives to do what is best for them.
89. This sense of protection is critical to both children.
…
96. The background endured by the children to date has been patently traumatic, and despite the positives mentioned, the children continue to live lives of vigilance and fear and remain concerned that their mother's irrationality will always be a risk.
97. The hypersensitivity to their surroundings, and their caution towards anyone unknown to them whom they believe might be an agent acting for their mother, increases the ever-present alertness to their own safety, and concentrates their fears about the stress this situation applies to their aunt and her husband.
98.This is concerning as they move through adolescence and is tempered only by the steady and stable support and connection they enjoy with [Mr C] and [Ms Mueller].
The recommendations made by Mr D as to what parenting order would best meet the interests of the children align with the order sought by the paternal aunt and the children’s wishes.
In relation to the injunctions sought against the mother, I firstly note that the injunction sought by the paternal aunt is for a continuation of the injunction made with the consent of the mother on 14 October 2022. Having regard to the history of abduction of the children by the mother and the recent upsetting attendance at the children’s home by persons possibly associated with the mother I consider the injunctions appropriate.
The additional injunction sought by the ICL specifically seeks to restrain the mother from communicating with any authority or government department about the children’s schooling or requesting any information or documents in relation thereto.
The request for this injunction has been prompted by the mother’s theory that the children’s father is still alive and the extraordinary actions she has taken in pursuit of this theory which have come to the notice of the children. The submission in support of the additional injunction relates to the mother’s history of acting contrary to the children’s best interests and the very real concern that any information coming into her hands about the children may be misused. This is a concern shared by Mr D.
The mother has actively pursued her theory of the father having faked his own death. For instance, the mother instructed a solicitor to write to the deceased father’s adult son, in Country E, shortly after the father’s death in which this theory was asserted and he was told that he may be subpoenaed for the trial. In addition, a known associate of the mother, Ms B (who is present with the mother in Court today) attended at the paternal aunt’s home late last year in the company of a male person and a dog. Ms B made demands to see the children and was video recording the encounter. Ms B said she had evidence that the children’s father was still alive and that the paternal aunt would be going to gaol. The children were present at the time and were distressed by this intervention. A temporary protection order has been made for the protection of the paternal aunt and uncle and the children. The paternal aunt has also had a private investigator contact her at the behest of the mother again in relation to her theory. The mother has also involved the police in her theory who have described the mother’s theory with some disdain.
In my view the additional injunction sought against the mother is warranted. I have no confidence that information obtained by the mother would not be used for ulterior purposes.
An additional order is sought to refer certain papers to the appropriate authorities to consider whether there has been a breach of s 121 of the Act. Those papers have been received into evidence and marked exhibit 2. This arises in circumstances where, it seems the mother has developed a preoccupation with her theory that the father is still alive. In this context, a Facebook page has been developed raising this possibility and offering a reward. The content of the Facebook posts seem to indicate that the person responsible may have been Ms B. It may or may not have been at the behest of the mother although certainly the theory about the father contained in the Facebook posts is consistent with the mother’s theory. The content of the post includes identifying information relating to the children by referencing the names of the deceased father, and the paternal uncle and aunt. The Facebook post also refers to “family court” proceedings. It seems appropriate therefore to make a referral of the material to the appropriate authorities for possible investigation. That material should also include a copy of these Reason.
In my view the parenting arrangements for the children and order sought by the paternal aunt are entirely appropriate and in the best interests of the children in the circumstances. The injunctions sought against the mother are in my view warranted and will afford a degree of protection for the children.
Accordingly, I make the Order as set out herein.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 9 February 2023
0
0
0