Ascott and Ascott

[2017] FCCA 3198

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASCOTT & ASCOTT [2017] FCCA 3198

Catchwords:
FAMILY LAW – Application by father to spend time with 10 year old daughter – father never having seen child – father not following through with earlier spend time applications – child wholly enmeshed with mother – child wholly opposed to any contact whatsoever with the father – counsellor expressing view that there is no prospect of child spending time with father and that any attempts to introduce father would be traumatic for child – father’s application dismissed. 

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3)

Applicant: MR ASCOTT

Respondent: MS ASCOTT

File Number: DGC 4688 of 2007

Judgment of: Judge Burchardt

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Dandenong

Delivered on: 20 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Ascott, In Person

Counsel for the Respondent: Ms Vogel

Solicitors for the Respondent: Aum Lawyers

Counsel for the Independent Children’s Lawyer: Mr Lynch

Solicitors for the Independent Children’s Lawyer: Peter Lynch

ORDERS

1. The father’s application filed 28 July 2015 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ascott & Ascott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4688 of 2007

MR ASCOTT

Applicant

And

MS ASCOTT

Respondent

REASONS FOR JUDGMENT

1. In this matter the applicant father seeks order to enable him to spend time with his child, X, born (omitted) 2007.  He has seen the child once in August 2007, at a hospital where X was being treated for serious heart difficulties.

2. The trial has proceeded in a most unusual way.  All parties have expressly eschewed the opportunity to cross-examine any of the witnesses.  The father, who was self-represented, elected not to put any questions to the mother and to advance oral submissions only.  Counsel for the mother elected not to put any questions to the father.  Counsel for the Independent Children’s Lawyer elected not to put any question to either the mother or the father.  All parties expressly indicated that they did not wish to have the family report writer, Ms Collins, or the psychologist who was engaged to provide counselling for the child to give evidence.

3. The materials filed from time to time in Court show that the father was born on (omitted) 1969 in (country omitted).  He migrated to Australia at a young age with his parents.  The mother was born on (omitted) 1980.  She lived in (country omitted) until she met and married the husband in (omitted) 2006.

4. The mother was already pregnant when she arrived in Australia on (omitted) 2006.  Separation took place that same day.  The mother departed and ended up living in a women’s refuge.  As earlier indicated, the father has seen X only once at the hospital in August 2007.

5. The parties have vividly different versions of the separation.  The father maintains that the mother effectively entered into the marriage with a view to obtaining Australian residence and extracted a substantial amount of money advanced to her by the father’s family at the time of separation.  The mother asserts that she was the subject of brutal and threatening insults by the father and his mother, and had no alternative other than to leave forthwith with another family member of the father’s.

6. Given the failure of either party to cross-examine, it is wholly impossible to form a concluded view as to whose version is more correct.  In the light of the way the case has progressed, however, this is not a material deficiency.

7. The materials filed before the Court show that the father made applications to the Court seeking to spend time with his child in 2008, 2010, and late 2011.  For one reason or another, none of these came to fruition.  They were all abandoned by the father for various reasons which, in my view, are not ultimately material.  The father was also party to an application made by his own mother in 2014 or 2015 (the materials are not on the Court file) which likewise was not prosecuted to finality.

8. The Court has ordered a family report, which has been prepared by Ms Collins.  Much of the report concerns the conflicted versions of the history of the relationship between the parents.  It is clear, however, that X has expressed in the strongest terms that she does not wish to have anything whatsoever to do with her father.  Ms Collins reported at paragraphs 45 - 50 as follows:

   It is very concerning that X claims to have no interest in knowing the identity of her father.  It is extremely unusual for children not to wonder about their heritage regardless of how good their life is and it appeared X has learned not to have any curiosity about that while she is in her mother’s care. 

   Ms Ascott impressed as controlling during interviews with a professional.  It is likely X, an only child, dependent all her life on her mother, has learned how to work around that control by fulfilling the role her mother has for her.

   If X spends time with Mr Ascott under professional supervision to enable her to get to know him in a supportive way, it seems most likely Ms Ascott will pressure X and may even be non-compliant with the order. 

   If the application is dismissed, X will learn that no other adults have enough power to set boundaries with which her mother will comply.  She will develop having learned that the only way to manage a person who uses controlling behaviour is to play the role they assign to you or become a bully yourself.  Effectively, she may lack a strong sense of her identity. She is likely to struggle with conflict, and certainly with relationships with men.

   It seems important for X that she at least knows her father cares about her enough to meet her under supervision.  It may transpire that her mother pressures her to the extent that X will align solely with her mother.  However, X needs to have the opportunity to meet and have firsthand experience of her father, which may provide a different narrative about him than the negative one she holds which was either provided to her or has been assumed by the absence of a positive narrative. 

   It may assist the Court to make final orders if further information about X’s relationship with her father in a supervised context could be provided.

9. The report went on to recommend that X engage in counselling to enable time to occur on a supervised basis.

10. Orders were made following the receipt of the family report on 15 December 2016 for X to undergo reportable counselling with a counsellor nominated by the Independent Children’s Lawyer.  These orders were made by consent.  After one false start, Ms B was engaged, and she has sworn an affidavit annexing her report filed on 6 April 2017.

11. Ms B noted that she had had an appointment with the mother and the child on 14 February 2017.  The report is a stark and compelling one.  It is sufficient to paraphrase it as follows.  Both X and the mother had rigid, fixed views.  At paragraph 7(a) Ms B reported:

    Both the mother in that short time and the child for the entire session, simply repeated their oft-repeated accounts and reasons as to their views on the father and why X should not spend time with him.  Any more sessions with X will simply have the effect of continuing to repeat and re-entrench those views.

12. X had entirely negative and hostile views about her father and was “enmeshed with her mother and has little self identity outside of her mother in relation to this aspect of her life”.

13. Otherwise, X was a happy child and had supportive relations with her mother and grandmother.  The report noted at paragraph 10:

    Enforced contact with her father, whether supervised or not, will cause X great distress unless the mother begins to change her views.  There is little or no likelihood that Ms Ascott could do so. It is for the Court to determine if those views about the husband’s alleged abuse are accurate.  The child’s irrational beliefs about her father are likely to persist into the future.  Supervised time is less likely to succeed or progress to unsupervised time.

14. Ms B noted, correctly in my view, that it was a matter for the Court to balance two possible scenarios and to work out which is likely to be of greater harm to the child.  Any attempt for supervised time would be stressful for the child, but on the other hand if she fails to see him she will have a strongly negative view of him.  I note that she already has a strongly negative view of her father.

15. As earlier indicated, when the matter progressed each party in turn indicated they relied on their affidavits as sworn, but expressly eschewed any desire to cross-examine anyone.  The matter effectively proceeded fairly readily to final submissions.

16. In his opening, the father said that he had had no contact with the child for 10 years.  He was at Court today to try and obtain orders to see her.  He said he thought a child should know their father.  In final submissions, the father pointed to the fact that he wanted visitational rights.  He said he wanted to see the child.  He had got the mother to Australia by sponsoring her, and she had left him and gone to a refuge.  The mother was a user, and a liar.  She left when she was pregnant. There was no abuse.  The Intervention Order was dropped after three months.  He was told the child was in hospital, and went in to see her and kissed her.  The mother refused to allow him to speak to the doctors, and he was not allowed to hold the child.  The mother went into hiding, and he was not able to obtain information.  He phoned both kinder and the primary school.  His own mother developed cancer because of stress.  His father had had a stroke, and he was a full time carer.  He was paying such maintenance as he could.

17. He was grateful that the mother looked after the child.  He said there was a need for the child to know him, and for him to know the child.  The child was under a lot of pressure.  All of this was because the child was coerced by the mother.  She said that the abuse started in (country omitted), but if that was the case why would he bring her to Australia.  She had left him as soon as she reached Australia.

18. The Independent Children’s Lawyer submitted that the father had never seen the child, and this was undisputed.  Several previous applications had been abandoned. Ms Collins had recommended counselling, and this eventually happened with Ms B, who had provided clear recommendations.  The Independent Children’s Lawyer had spoken to the child on Saturday afternoon.  She was a relatively mature child, who was aware of the circumstances of this case.  She wanted to live with the father and have no time with the father.  This was her 100 per cent view.  She does not know the father, and will not accept cards or any other form of communication. The Independent Children’s Lawyer submitted that the father’s application should be dismissed.

19. Counsel for the mother essentially supported the Independent Children’s Lawyers submissions. She thoroughly and comprehensively addressed the criteria in section 60CC(2) and section 60CC(3). It is fair to say, despite this thorough treatment, that the end point was exactly the same as that of the Independent Children’s Lawyer.

Consideration

1. This is a sad and depressing case.  The father has failed to follow through on his various applications to have spend time orders in the past.  On one occasion, he actually left court when such time was being actively contemplated.  It is not possible to know what to make of the father’s position, save that it must bespeak some measure of equivocation.  More importantly, it has given rise to circumstances where he has, to all intents and purposes, spent no time with his 10 year old daughter since her birth.

2. As Ms B pointed out, the child is totally enmeshed with her mother and her views could not be clearer.  This is a most unfortunate and regrettable state of affairs, and speaks volumes for the mother’s lack of insight.  Nonetheless, it is an established fact on the ground, so to speak.

3. X’s future prospects of successful adulthood may well be compromised by this state of affairs, although I note that neither Ms Collins nor Ms B made any express finding to this effect.  In circumstances where X will be traumatised in the event that any spend time regime of any sort whatever is imposed, it is ultimately entirely apparent that this is not in her best interest.  Her enmeshment with her mother is fully established and the expert advice of Ms B is that it is not practicable to surmount that difficulty.

4. In these most regrettable circumstances, the only order that the Court can possibly make is that the father’s application be dismissed.

5. In these unusual facts and circumstances, it is not necessary to go through the statutory pathway and the criteria in section 60CC seriatim.  This regrettable outcome is just so clearly indicated that it is not appropriate to do so.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  20 December 2017