B & M - [2002] FMCAfam 167

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & M

[2002] FMCAfam 167

CHILDREN – Residence – contact.

Applicant:

M B

Respondent:

E M

File No:

ZD2102 of 2000

Delivered on:

17 May 2002

Delivered at:

Darwin

Hearing Date:

17 May 2002

Judgment of:

Brown FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms M Orwin

Solicitors for the Respondent:

M.C. Orwin & Associates

ORDERS

That the father’s application for the residence of the child E B, born
17 April 1991, is dismissed.
Until further order, orders 2, 3 and 8 of the orders of 24 August 2001 are suspended.
That a Family Report be prepared to ascertain how contact may be resumed between the child and the father, and if it is appropriate to do so.
The matter will be adjourned until 22 October 2002 at 9.30am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

ZD2102 of 2000

M B

Applicant

And

E M

Respondent

REASONS FOR JUDGMENT

These are ex tempore reasons for judgment in the matter of B and M. It relates to one child, E B, who was born on 17 April 1991. E is more commonly known as M. The parties to the proceedings are M’s parents – his father M B, and his mother E M.
The application I have before me is filed on behalf of the father. It was filed on 2 January 2002. He essentially seeks an order that M live with him at his home at 8 C Crescent, W. I think it is fair to say that if Mr B is not successful in that application, he would seek an order that he have contact to M every second weekend from 5 pm on Friday until

6 pm on the following Sunday, and he would like to have contact to M for half of each of the school holidays. He would want M to be exchanged between the parties at some neutral place, such as the park at P, but not the police station at P.
The respondent Mrs M, in her response filed on 25 January, 2002 seeks an order that the child live with her and proposes that the father have supervised contact to M at Centacare each Sunday between

1.00 pm and 5.00 pm, or at other times as may be arranged with Centacare. She seeks a number of other orders.
The respondent has remarried. Her current husband is Mr W M. I have no doubt that the applicant is very bitter that Mrs M has remarried.
Sadly, the parties are no strangers to proceedings in this court and the Family Court. Indeed, they have been involved in bitter proceedings for some time now. The most important matter in respect of this case is that on 24 August 2001 Holden J made orders, by consent, in regards to M. It was agreed between the parties that M should live with his mother and, at that stage, his father should have contact with him every second weekend and during the school holidays. Other orders were made in respect of arrangements for M.
So the position is clear that, in August of 2001, the parties agreed that M would live with his mother. When they came to that position – and I should point out that Mr B was represented by his solicitor before the judge concerned, and the mother was also represented by a barrister – the court had before it a family report and a number of addenda to that report that had been prepared by the court report writer, Mr Ralph.
The principal report was prepared by Mr Ralph on 26 June 2001. At that stage Mr Ralph was of the view that the children of the parties – and I should point out that they have other children – a son, T, who is now 19; a son, C, who was born on 15 December 1984 so he is nearly 18; a daughter, F, who was born on 5 March 1987 so she is 14 years of age; as well as M.
I return to Mr Ralph’s report. Mr Ralph was of the view that C, F and M had been openly exposed to parental conflict, in particular by Mr B who had acted inappropriately in the situation by encouraging the children to side with him. According to the reports of M and F, he had deliberately encouraged them to adopt a negative view of their mother and to oppose her relationship with Mr M.
Although his actions may have been a desperate attempt to keep his family together, the consequence was an even greater division within the family to the detriment of all concerned. At the present time, all three children are struggling to cope with the situation and are torn in their loyalty to their parents.
They have been placed in a position of having to choose between their parents in a situation of threat and intimidation. This has caused, and continues to cause, the children to experience a high level of stress and heartache.
At that stage, Mr Ralph was of the view that M wished to live with his mother. However, Mr Ralph was apprehensive about contact with his father due to the fact that M would have to deal with his father’s anger and disappointment at that choice. Mr Ralph was concerned that M would be deeply troubled by contact with his father and may have future difficulties in having contact with his father.
At that stage, Mr Ralph was concerned that, because of the bitterness the father felt about the loss of his relationship with the respondent, there was the danger of there being irreparable harm to his relationship with both M and F.
A number of additional reports were made prior to 24 August 2001. They came about, in brief, in this way. As I say, initially M said to Mr Ralph that he wanted to live with his father. Apparently, after that time, it was said that he had changed his mind. Another interview was arranged. M apparently indicated that he had changed his mind and that he had been subjected to inappropriate behaviour at the hands of his mother and her new husband, Mr M.
Then another report was prepared. At that stage Mr Ralph was satisfied that the child had been put under pressure to say things by his father and particularly about being abused by Mr M. It was against that background that the consent orders were made.
Mr B had access to the first report and to the addenda that had been prepared to it. No doubt he discussed those with his very experienced lawyer at the time. Orders were made by consent. I have no doubt that Mr B understood the import of those consent orders.
One of the important considerations in making orders under the Family Law Act is that they bring an end, as far as is possible, to proceedings between parents and other parties in respect of children. Children require stability in their lives. It is not appropriate for children to be placed under a great deal of pressure. Children have loyalty to both their parents. They are not responsible for the breakdown of their parents’ marriage. They do not understand the reason why the marriage failed. It is not their responsibility. As far as possible they are to be insulated from the disputes between the parents.
It seems that, pursuant to the orders of 24 August 2001, that contact did basically take place as was required, until about December. Thereafter, difficulties began. Mr B did not return M after the school holidays in January. A contravention order was filed by him. I dealt with that matter in other proceedings and dismissed it. It is not necessary to repeat my findings again.
The gravamen of Mr B’s concerns was that M had reported to him that he was again being exposed to physical violence within his mother’s household, particularly by his mother’s new husband, Mr M.
The matter was reported to police. Initially M apparently reported to a police officer that he had been inappropriately dealt with. However, some days later, he made another statement to a more senior police officer and indicated what he had said earlier was not true. Once again it seems M had been pressured by his father to make the complaint.
The Department of Health and Community Services investigated the matter. A report was prepared. The Department did not proceed with any investigation. They were content, after making inquiries, that there were no major concerns regarding M in his mother's care.
Because of the difficulty of the situation and because there was an application for final orders in respect of M’s residence, another family report was ordered. That was prepared by Mr Ralph, again. Mr Ralph saw M in February of 2002.
In regards to the incident when M was taken to the police station, M described it in this way to Mr Ralph:
“He stated that his father had taken him to the police station, accompanied by C and F, where he was interviewed by the police in his father’s presence. He reported that prior to this interview his father had said: ‘Please do this for me’, and had told M what he was to tell the police officer. M reported that most of what he told the police officer was a lie. He reported that he understood that lying to a police officer was the wrong thing to do and he felt bad about having done so. He reported a report of having been hit with a broomstick and the reports of being dacked by Mr M were lies. He reported that some of it was true and he recounted an incident that happened two months ago when he’d been slapped by Mr M for not paying attention to his mother. M was distressed and upset by the fighting that was taking place within the family. He said: ‘All I want is that there is to be no fighting between F and C and Dad’.”
Mr Ralph was of the view that M was generally a fairly resilient child and, as a result, he believed that M had developed some strategies to cope with the pressure he was placed under by his father. One strategy seems to be to agree with his father; to, in effect, go along with the flow and deal with all the problems that may arise, later.
M was clear that he did want to maintain contact with his father and, in particular, with C and T. T is the father of a young baby and M would like to see him. However, in February, because he was concerned about the pressure that M was being placed in by his father, Mr Ralph recommended that the court consider terminating Mr B’s contact with M and, as an alternative, impose supervised contact for a period of time to give Mr B an opportunity to seek counselling in relation to the issues of loss and grief surrounding the breakdown of his marriage.
As a result of that report, and as a result of my own observations of Mr B, I made an order that there be contact at Centacare. I made that order on 11 March 2002. Mr B told me that he would ‘give it a go’. He is not interested in seeking any emotional counselling for himself.
However, today it is apparent that there has been no contact at Centacare. Mr B is adamant that he will not go to Centacare. He says it is like a gaol. He sees no need for supervision of his contact with his son. He is also unwilling to undertake any counselling himself.
The mother has filed an affidavit in support of her position. That occurred on 16 May. F has now determined to live with her mother. I heard some evidence about that in earlier proceedings and I heard some evidence about it today. F apparently broke into her father’s home, where she was living at the time, and took some of her possessions and has now moved to her mother. She is living with her mother. Her father is now unwilling to have anything further to do with her. F is now alienated from her father. He quite clearly sees her as a traitor.
The parties and the children are obviously all part of the Greek community in Darwin. It is a close and inter-connected community. They attend church for sacred days, particularly Easter, and it seems that – and I accept – the father is unwilling to allow F to have anything to do with him or T or T’s new baby.
I use that as an example of the high degree of polarisation in this family. I had the opportunity to see Mr B give evidence today. He agrees that he is angry with the wife. He is indeed angry with her and about how the marriage between them ended.
It is not appropriate for me to inquire as to the means by which the marriage came to an end, other than that he is bitter and expressed his bitterness in no uncertain manner to the court. He also said that the children were well aware of who was at fault and could judge for themselves.
I think there can be absolutely no doubt that Mr B will try and involve the children, including M, in his dispute. He will ostracise them if he believes they show any sympathy for their mother at all, and, regrettably, is willing to use the children, particularly M and, in the past, F, as instruments or weapons against the mother.
The result is that every period of contact will be the source of great potential pressure for M. The father will try and influence him; will try and invent concerns about his mother’s care of him; will talk about his anger and his hostility about the mother and the loss of the marriage to M. Mr Ralph, in his evidence today, said that this will have a potentially detrimental impact on M. I agree with that assessment.
The difficulty in this case is that there are two competing factors at work. On the one hand there is the potential for great harm to be caused to M in his emotional development by prolonged exposure to his father’s anger and bitterness. On the other hand, there is the potential for there to be a rupture between M, his father, T, C and other family members.
Mr Ralph was of the view that the less detrimental thing for M at the present time was for there to be no direct contact with his father in this pressurised and conflictual situation. It was for that reason that Mr Ralph recommended supervised contact.
The down-side of that is that M may feel that he has been rejected by his father. I am told that there is some informal contact between C and T, on the one hand, and M on the other. The father called T to give evidence. That was a heart-wrenching thing. T is 19, he is an adult, although he did seem to be a youthful 19-year-old to me. He was clearly, I think, upset by having to give evidence in court. It was regrettable that he too had been enlisted in his father’s dispute.
He was called because the father wanted him to give some evidence about something M had told him about being exposed to unfortunate videos. The evidence was unclear and vague. I don’t know if M was exposed to a pornographic video. What the evidence did show to me was the extent of the rupture between the two aspects of M’s family, and the pain that it caused the mother, on the one hand, and T on the other. T says he chooses not to see his mother because he is “annoyed” with her. He did not go into it any more than that. I have no doubt that he has been influenced by the strong and vitriolic views the father has of his mother.
I suspect it will be difficult for T and C to be able to have any contact with M, if he continues to live with his mother, because it will be seen as a dealing with the enemy camp.
In his evidence, Mr B said that he would keep going with this until M turned 18. The extent of his anger and bitterness towards the respondent cannot be understated, in my view. For that reason, I think any period of contact would subject M to an enormous amount of pressure and conflict of loyalty, and he is simply not of an age to be able to assimilate that.
On any view, it is a serious matter to stop contact going on between a child and his father. M does want the contact. But the father is a stubborn man. He is not prepared to compromise. He is not prepared to consider Centacare at all; not even prepared to give it one try, not even after having heard that M would not be concerned about the physical surroundings of the place itself. This being the effect of Mr Ralph’s oral evidence today.
I think Mr B does put his own needs, particularly his own emotional needs and his need to be angry with his former wife, before any feelings he has about the child himself. I think a prime example of that is his response to F and her decision to go and live with her mother. He has now disowned her.
I think I must bear strongly in mind what Mr Ralph says about the less dangerous option for M. That is no contact at this stage. Mr Ralph described it as being ‘time out’ for M. Time, of course, being something that helps all wounds to heal.
In my view, the application for the residence of M is hopelessly misguided. There is no evidence that there has been any change of circumstances since the orders of August 2001. The only change of circumstances seem to be that Mr B has become more entrenched in his attitude to the wife, if that was possible. There is certainly no ground to make the residence order that Mr B seeks.
The question, really, is what contact, if any, there should be between M and his father. On the one hand the contact, as Mr B seeks, has the potential to cause great harm to the child and also has the potential to lead the parties back into Court after every period of contact because there will be some new allegation that will have to be investigated that has been raised by Mr B.
The child will be subjected to all sorts of allegations. His coping mechanism for this conflict is to agree with everything his father puts to him, further fuelling his father’s obsessive behaviour. His father is content to allow himself to keep manipulating the child, or perhaps a more charitable view is that he is just not capable of having insight into the things that he is doing to the child. But it is not appropriate, in my view, for there to be endless litigation after each contact period.
Mr B is adamant that he will not agree to supervised contact and I cannot see the point of compelling him to attend such contact.
Mr Ralph floated the possibility of there being yet another family report to investigate how contact can be reinstated. There may be options: another person to supervise; another mechanism to get the child backwards and forwards without conflict; a neutral venue.
Ms Orwin, for the mother, submits that any orders that I might make or consider making, restraining Mr B from discussing issues with M, are likely to be meaningless. In this, I agree with her. From what I have seen of Mr B, he is incapable of restraining himself in regards to his feelings about the wife. It is inevitable that he will try and work on M to bring him to his point of view.
I was thinking of lesser periods of time at other places. Mr B is not particularly forthcoming with suggestions, nor is the respondent. Of course, I have to look at these matters from the child’s point of view. I think that there is no option regarding contact at this point.
Mr Ralph may be extremely optimistic when he suggests that a family report would be of assistance, but Mr Ralph was, I think, quite clear in what he thought were the dangers of a permanent rupture between M and his father and his older siblings and other family members, on the one hand.
Because of that, I think it is incumbent that there be at least some attempt to mend this rift and some attempt to see if time will heal in the short term. I should perhaps, with some sense of resignation, order yet another report to investigate how contact can be resumed.
So for all those reasons, the orders of the court will be as follows:
1)That the father’s application for the residence of the child, E B, born 17 April 1991, is dismissed.
2)Until further order, Orders 2, 3 and 8 of the orders of 24 August 2001 are suspended.
3)That a family report be prepared to ascertain how contact may be resumed between the child and the father, and if it is appropriate to do so.
4)The matter will be adjourned until 22 October 2002 at 9.30 am.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:

Date: 13 June 2002