Banerjee & Reich
[2024] FedCFamC1F 183
•21 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Banerjee & Reich [2024] FedCFamC1F 183
File number: SYC 6210 of 2020 Judgment of: CHRISTIE J Date of judgment: 21 March 2024 Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – Consent orders entered into following conclusion of oral evidence including the single expert – Order for the children to spend no time with a parent – Where the father has previously exposed the children to psychological harm – Where there is an unacceptable risk of harm to the children in spending time with the father – Where the father’s insight into his previous behaviour is not sufficient to protect the children from harm – Children’s views – Where the children miss the father – Where it is not in the children’s best interests to make orders for time with the father to be in accordance with their views – Orders made by consent – Parties sought reasons for judgment.
FAMILY LAW – COSTS – Order for the costs of the Independent Children’s Lawyer to be paid by the applicant as sought.
Legislation: Family Law Act 1975 (Cth) Pt VII s 60CC and s 117 Division: Division 1 First Instance Number of paragraphs: 104 Date of hearing: 11-13 March 2024 Counsel for the Applicant: Ms Giacomo Solicitor for the Applicant: Farrar Gesini Dunn Sydney For the Respondent: Litigant in person Independent Children's Lawyer: Mr Holmes, Holmes Donnelly & Co Solicitors ORDERS
SYC 6210 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BANERJEE
Applicant
AND: MR REICH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
21 MARCH 2024
THE COURT ORDERS THAT:
1.The applicant pay the costs of the independent children’s lawyer in the sum of $6,850.25.
2.The applicant and respondent may provide the following documents to any therapist providing treatment to the applicant, respondent or either child:
(a)Report of Dr B dated 9 April 2022;
(b)Report of Dr B dated 2 June 2023;
(c)Reasons for judgment dated 21 March 2024.
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 Banerjee & Reich has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
The parties and the Independent Children’s Lawyer (“ICL”), following the oral evidence of the single expert, Dr B, resolved this case by agreement.
Ordinarily, where the parties agree about the outcome a judge may make orders without providing reasons. In all cases the judge will still have to be satisfied that the proposed orders are in the best interests of the subject children.
This case concerned parenting arrangements for two children: X born 2009 (now aged 14) and Y born 2012 (now aged 12). At the time of the final hearing the children were living with their mother and spending no time with their father. Interim orders permitted the father to write letters and provide gifts to the children subject to conditions.
At the commencement of the trial, the father sought orders for modest reintroduction of time with the children, largely consistent with the recommendations of the single expert. The mother’s proposal sought a continuation of the existing interim arrangements as final orders. The children’s views (according to the single expert) were tentatively in favour of seeing and spending time with the father.
The Court was being asked to make findings about what had happened in the past to inform an assessment of the risks that those findings indicate for the future.
The ICL and the mother sought that, notwithstanding that the matter ultimately concluded in the making of consent orders, I consider giving reasons for judgment. The father did not oppose that course. The single expert saw utility for the children in there being reasons for judgment which could be provided to any person providing therapeutic assistance to the children as background for that therapist to assist the children to understand some of what has occurred and the reasons why they are not seeing their father. I agree this may be beneficial and propose to give short reasons for judgment.
The consent orders made on 13 March 2024 are set out below:
THE COURT ORDERS BY CONSENT THAT:
1. The mother have sole parental responsibility for the children:
1.1 [X] born […] 2009 ("[X]"); and
1.2 [Y] born […] 2012 ("[Y]")
("the children").
2. The children shall live with the mother.
No Time Order
3. The children shall spend no time with the father.
Communication Between the Father and the Children
4.The father be permitted to forward a card or letter to the children no more frequently than once every 2 months (save for a card accompanying a birthday or Christmas gift pursuant to Order 5 below).
5.The father be permitted to forward one gift per child (with the cost of such gift being not more than $200) twice a year, being at Christmas time for both children, in […] for [Y’s] birthday and in […] for [X’s] birthday.
6.For a period of 12 months, any letter, card or gift shall be drafted and/or purchased with the assistance of [Mr C].
7.The letters, cards or gift are to be forwarded to the children c/- […] (or such other postal address as directed by the mother to the father in writing with such notification to be forwarded to the father via PO Box […]).
8.The mother be at liberty to view any proposed card, letter or gift by the father and the mother be at liberty to withhold any letter, card or gift, in the event she forms the view the content of the communication is inappropriate or poses any risks to the children.
Passports & Travel
9.Pursuant to s11 of the Australian Passports Act 2005 (Cth), the mother shall be permitted to do all acts and things and sign all documents necessary to apply for and maintain a current Australian passport for the children.
10.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) the mother be permitted to take the children outside of the Commonwealth of Australia during the periods of time they are living with her pursuant to these Orders.
Other
11.Pursuant to section 68B(1)(a) of the Family Law Act 1975 (Cth) the father is restrained from assaulting, harassing, molesting, approaching or communicating with the children (including communication via social media or via a third party's social media) in any way other than in accordance with Orders 4 and 5 herein.
12.Order 11 herein is an Order for the personal protection of the children and it is intended that s 68C of the Family Law Act 1975 (Cth) will operate in respect of it.
13.Pursuant to section 68B(1)(c) of the Family Law Act 1975 (Cth) the father is restrained from:
13.1Entering, remaining or being within 100 metres of the children's home or workplace; and/or
13.2Entering, remaining or being within 100 metres of the children's school, [D School].
14.Order 13 herein is an Order for the personal protection of the children and it is intended that s 68C of the Family Law Act 1975 (Cth) will operate in respect of it.
15.Pursuant to section 68B(1)(b)(i) of the Family Law Act 1975 (Cth) the father be restrained from assaulting, harassing, molesting, approaching or communicating with the children's mother, [Ms Banerjee], born […] 1975 in any way and from causing or permitting any other person from doing so.
16.Pursuant to s 121 of the Family Law Act 1975 (Cth), the mother is granted leave to provide a copy of these Orders to:
16.1Any school attended by the children;
16.2Any medical or health practitioner attended by the children
16.3The New South Wales Police;
16.4The Australian Federal Police;
16.5Any other police service the mother considers necessary to give effect to Orders 11 – 15.
17.Within 14 days the Father disclose to the Mother via her solicitor, the details of any communication he receives henceforth and he shall provide details of any communication (including via social media) he receives from the children in the future to the mother within 14 days of receiving the communication.
THE LAW
The making of parenting orders is governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”) which provides that in making parenting orders the court must have the children’s best interests as the paramount consideration.
This is not a case where the presumption in favour of equal shared parental responsibility is in play and accordingly the order about parental responsibility will be the order which is in the best interests of the children.
It is non-controversial in this case that the children will live with their mother. Accordingly, the primary issue for determination was whether the children should spend time with their father and if so, under what circumstances and subject to what conditions.
The assessment of what “time orders” (if any) should be made is a matter guided by the relevant subsections in s 60CC(2) and (3) of the Act.
CONSIDERATION
The father and his witnesses were cross-examined. The father elected not to cross-examine the mother or her witnesses including her current treating therapist/social worker. Accordingly, there is little which is the subject of proper factual debate. I would be entitled to accept the mother’s evidence unless there is other credible objective evidence which places it in dispute.
Consequently, and in order to make sense of what follows, I propose to set out in summary form some of the matters which were relevant to the opinions expressed by the single expert.
The parties separated in 2012 when X was about 3 and Y was an infant. The parties do not agree as to whether they reconciled after that date.
The father used illicit drugs commencing in 2012. In early 2014 he commenced a period of in‑house treatment but discharged himself against medical advice. He was again hospitalised as an inpatient in mid-2014 and again discharged himself contrary to medical advice. The father has misused alcohol and was charged with mid-range PCA in late 2016. The father has misused prescription drugs. At present the father says he is not consuming drugs or alcohol.
The father has been charged with a number of offences. The father has been convicted of the following offences:
(a)A driving offence – 2016;
(b)Offence against a person – 2018;
(c)An AVO contravention – mid-2018 – late 2018;
(d)Offence against a person – mid-2018 – late 2018; and
(e)In 2021 the father was found to have breached an AVO. He appealed. On appeal the breach was found proven but no conviction was recorded.
The father’s messages to the mother following separation were abusive and voluminous. Setting out just one small passage from a message sent on either 7 or 8 April 2018 captures the tone of the father’s communication:
You and your apathic [sic] excuse for a man boyfriend. You’re as dumb as a post and your best years are so behind you science had to intervene years ago. Won’t save your [body] from the genetic history your mum left. Hail damage. And he is so fucking void of testosterone, He’s the most androgynous looking fuckwit. The two of you are a fucking joke. The two people no one else wanted.
He maintained a hatred for the mother’s partner, Mr E, after separation which he pursued relentlessly and in which he involved the parties’ children and invited them to share in his hatred.
A provisional AVO was made in early 2018 for the protection of the mother and Mr E and naming the father as the person bound by the order.
The father contacted the mother and was charged with a breach of the conditions. The father contacted the mother in an effort to have the order discharged. He sent a draft statement of the mother and Mr E as attachments to an email of late 2018 for them to sign and withdraw their previous statements to police. The father’s anger towards Mr E was undisguised and setting out one paragraph from that draft witness statement of Mr E (authored by the father) will demonstrate the vitriol which was contained in all the father’s voluminous messaging about and to Mr E at the time:
10.To that end, I admit that I am a fucking no-good backstabbing manipulative ladder climbing narcissistic cunt of biblical and historical worthiness if someone is keeping records of the top 10 fuckwits of all time. I would probably fit somewhere in the top four beneath Hitler but above Brutus and well above the turncoat rat Michael Cohen – although my legal talents are similar to his in so much as I have almost no talent at all.
Between mid-2018 and late 2018 the father sent the mother 572 text messages which she described as “offensive, derogatory and manipulative” and harassing. On one day alone he sent the mother 141 text messages of this nature.
As concerning as the father’s communication with the mother and Mr E were, it is his interactions with the children which raise the most significant concerns about his capacity to recognise and maintain appropriate boundaries and child focus. The father emailed X and Y. The father sent text messages and voice messages. The father involved the children in adult‑conflict when he saw them in person.
The texts messages between the father and the children were in evidence. The father actively sought to undermine the mother’s authority in her household.
The father left a voice message for the children in late 2018 effectively telling them “goodbye”, he was moving and would not see them. Apart from denigrating the mother’s partner and telling the children to “hate that asshole” if they love their dad, the message also included: “I don’t think your mum ever had ideas of keeping me alive. I think she was just gonna stress me out until I died and now that I know what a monster she is – to me – not to you – but to me, I have no feelings for her whatsoever…”
In 2020 the father’s messages to the children focused on his perception that they were unsafe in their mother’s care. Those messages were entirely lacking in child-focus and threatened the stability of the children in their mother’s household.
The father made arrangements for the children to come into his care via texts with X. The father instructed X to delete her text communications with him.
The mother noticed that the children’s behaviour began to deteriorate during this period, including on one changeover with Y going outside to meet his father and then running back inside to say “Bye you little bitch” and on another occasion saying to the mother and her partner “Stop fucking with our dad”.
In mid-2020 the father collected the children from school and retained them until they were returned pursuant to a recovery order in late 2020. For approximately 3 weeks the children remained in the father’s care. The father was by all accounts incredibly unwell during this period. A psychologist, Dr F provided a letter addressed to the Local Court on the same day which read:
[The father] presented as extremely distressed, was agitated, and provided a rambling account of his situation, lacking in any coherency. He completed the Depression, Anxiety and Stress Scale … His results… indicated he was experiencing extremely severe levels of distress consistent with a diagnosis of a severe depression and/or anxiety disorder.
…[The father] is assessed as not being in a fit state to provide any coherent account of his situation or actions.
In mid-2020, a GP, Dr G provided the father with a certificate referrable to his mental health that stated the father “is suffering from a severe mental health condition and is required to be off work for three months during which time he will be engaging with a psychologist and therapist to work through his issues”.
In mid-2020, the National Civil and Administrative Tribunal handed down a decision refusing to issue the father with a professional practising certificate. The same day the father notified the children’s school that the children would be living with him.
In late 2020 the father attended upon Dr G who recommended that he commence inpatient care. The same day the father’s psychiatrist, Dr H prepared a report to assist the father to access superannuation funds to apply to 3-6 weeks of inpatient psychiatric care.
Even after the recovery order was made in late 2020, the father emailed the children’s school to indicate the order had been made but was invalid and the children would remain in his care until the order was quashed.
It is plain from the above history that the children spent three weeks in the father’s care while he was acutely unwell. I will return to the issue of the father’s parenting capacity later in these reasons.
The father has made a number of complaints in the period 2020 to date which are relevant to the expert’s opinions, conclusions and recommendations.
The father’s correspondence with the children’s school, the ICL, and the solicitor for the mother were in evidence. The tenor of the correspondence is captured by this excerpt from the father’s email to the school dated 10 June 2020:
I’m still awaiting your reply?
In the meantime please have [X’s] attendance record marked as justified.
And if that record isn’t immediately changed, I will take this to the department of education as a formal complaint and see clarification from them.
The father has made numerous formal complaints: a judicial complaint against the NSW Local Court Magistrate who was presiding when charges against the mother were withdrawn by NSW Police, and complaints to a professional authority in relation to the mother’s partner, the ICL and the mother’s solicitor respectively.
The father has also experienced difficulties in his interpersonal relationships. After separation from the mother, the father was in a relationship with Ms J and then Ms K both in 2019. Both women made contact with the mother in this case after separating from the father to discuss the father’s conduct.
The father then formed a relationship with Ms L. He told the Court that Ms L first assaulted him in late 2019. He told the children’s school that he and Ms L were engaged and identified Ms L as the children’s future stepmother and secondary point of contact in a letter dated early 2020.
The father separated from Ms L in circumstances where each made allegations of violence about the other. I am not being asked to determine whether those allegations are made out. After separation the father commenced a relationship with Ms M – his current partner. On an occasion in early 2020 when the children were present, the father burned and encouraged the children to burn items which belonged to Ms L (including t-shirts which bore her image). A video was taken. The father posted the recording on social media.
The video was in evidence, as was a transcript which identifies the speakers as the father, an unknown woman (but later identified as Ms M) and the children. The father says to the children:
THE FATHER: kids, come and throw your [Ms L] T-shirts on the pile.
[Ms M]: We’re going to, we’re going to (indistinct background conversation)
THE FATHER: Anything that’s [Ms L] related (indistinct background conversation) let’s fuckin’ burn it, let’s burn it ---
[Ms M]: Go get ‘em and we’ll burn ‘em.
THE FATHER: ---and once we finish burning ‘em it’ll be as dark as that cunt’s soul.
The father actively encouraged the children’s participation in this activity. In the video Y appears to have had applied make-up, what appears to be women’s clothes and fake breasts. Ms M accepted that it is her voice that can be heard laughing in the background, however she denied she was laughing at what the father and children were doing and maintained she could not initially hear what was taking place. Ms M asserted that Y was dressing up as his sister, X, as opposed to Ms L.
The children’s participation in the burning of Ms L’s items and items bearing her photograph at the request of the father raised very significant issues about his capacity to adhere to appropriate boundaries, shield the children from adult conflict and role model appropriate interactions.
I must give primacy to consideration of the need to protect the children from physical or psychological harm from being subjected to abuse, neglect or family violence. The risk from which the children need protection is squarely a risk of psychological harm. The risk arises from the evidence about the father’s conduct and impaired parenting capacity and the risk which is created by his inability to maintain appropriate interactions with the children’s mother, historically with the children, and with the world at large.
Against that risk I must consider the benefit to the children of a meaningful relationship with both parents. The children would, undoubtedly, benefit from restoration of their relationship with a father who they love and miss and who it is plain has had the capacity to provide appropriate care. So the case is resolved by the determination of whether or not the children can have access to the benefits of a meaningful relationship with the father or whether, as the single expert opines, the risks to them of that course outweigh the theoretical benefits.
It is important to understand that the evidence of an expert, while important, is not automatically determinative of outcome. Single expert evidence must be weighed and placed alongside the other evidence in the case so that an overall assessment of the facts which underpin the opinion can be undertaken. Because this matter was heard over three days including cross-examination of the father and his witnesses, I am able to approach the single expert evidence in that context and in this case the single expert evidence is squarely grounded in uncontroversial facts, has a longitudinal perspective, is informed by contact with the treating therapists of the father and children and was the subject of some testing in cross-examination.
The single expert prepared two reports in this matter. The first report identified the psychological risk to the children posed by time between the children and the father as high. The single expert identified a pathway which the father could follow to (potentially) address that risk.
The single expert recommendations included that the father be permitted to write letters to the children (and to send cards and presents for the children’s birthday and Christmas). The father initially complied with this recommendation but became frustrated by the fact that he did not receive letters in response. Without apparent foundation the father concluded that the failure of the children to write to him was as either a direct or indirect consequence of some action by the mother or otherwise spoke to the children being in need of psychological assistance.
The second report of the single expert concluded that the father had attended to the matters identified by her reducing her assessment of risk to moderate and recommending a highly conditional set of recommendations which, if followed, provided the possibility for the children to spend time with the father in due course.
It is necessary at this point to set out some of the evidence about events which took place after the release of the second single expert report because those events informed the opinion of the single expert delivered orally at the trial.
The single expert interviewed the mother, Mr E, and the children on 26 April 2023.The single expert interviewed the father and Ms M on 27 April 2023. The single expert had before her affidavits of each parent filed in April 2023 and subpoena material from the father’s therapist, Mr C.
The second single expert report was dated 2 June 2023 and was released to the parties on 13 June 2023.
As to the letters between the father and children, Dr B opined in her updated report:
[Mr Reich] has sent five letters to the children since the initial report. The letters appear appropriate in the main, although I have some concerns that the content may have left the children somewhat jealous and saddened by the repeated references to [Mr Reich’s] engaging in fun activities with his step-son [N]. The most recent letter contains an apology to the children.
…
[Mr Reich] has written a series of five letters to the children. They appear to have been appropriate in the main, although likely brought up considerable emotional issues for the children. It is commendable that [Mr Reich] wrote the letters and that [Ms Banerjee] allowed the children time and space to read the letters. It seems likely that they have helped and comforted the children to some extent.
In my view it is most regrettable that the parties agreed for the children to write back to [Mr Reich]. It has seemingly led to an expectation on [Mr Reich’s] behalf that the children would write back with ease and joy. Unfortunately, he has externalized blame, and accused [Ms Banerjee] of blocking or at least not supporting the children to write back. He has seemingly failed to consider the trauma the children suffered as a result of his behaviour, the psychological impact on them, and the difficult position he has placed the children in by embroiling them in the parental conflict.
With the exception of a birthday card and a Christmas card to each child in 2023, following the release of the updated report, the father did not send any further letters to the children notwithstanding him being permitted to, and having received some guidance from the single expert (and Mr C) as to the authoring of the letters. Given the observation of the single expert that it seems likely the letters have helped and comforted the children to some extent, it was unfortunate that the father ceased writing the letters.
On 20 June 2023 (within a week of release of the second single expert report) the father sent an email to the mother’s solicitor at 10.21 am advising that he had become aware Y had been seen wearing a short sleeve polo shirt and that he appeared cold and shaking. At 10.21 am the father sent the following email to the mother’s solicitor and the ICL:
I received some communications this morning concerning my son [Y] being dressed inappropriately for the weather conditions.
[Y] was seen at 8:50 am this morning wearing only a short sleeve school polo shirt when the temperature was 7 degrees […]. I am informed that he appeared cold and was shaking, and it was so alarming that another mother from his school contacted me to advise me that [Y] appeared cold and inappropriately dressed.
Please ensure that the children are appropriately dressed for the weather conditions.
If the father had stopped at this first email then I may have regarded the correspondence as an unwise overreaction to being provided with information about an unfortunate isolated event, but perhaps understandable given his enforced separation from his children. The difficulty is that at 10.38 am, with no response having been received, the father again wrote to the mother’s solicitor and the ICL:
The mother who contacted me has agreed to give an affidavit in relation to this incident this morning and in relation to other matters over the course of the years past.
Please see attached a screenshot of the messages this morning, which show her level of distress witnessing [Y] shiver in the cold and noting that her son is the same age and attending the same school.
I hope that there is some explanation for this, although it is difficult to see one. I would appreciate some sort of explanation from the mothers lawyers.
For the information of the ICL, the other boy ([Y’s] friend) was wearing long pants and a thick winter jumper. Even our son [N] was sent to school today with long pants, a scarf and a puffer jacket. It is absolutely freezing and absent a reasonable explanation from the mother, sending [Y] to school so inappropriately dressed is pure and utter neglect.
(As per original).
The concern about the correspondence relates to the father’s inability to deal with the absence of an immediate response and the manner in which he automatically escalates the issues and makes threats in respect of litigation and allegations of neglect.
The third party who contacted the father was the mother of a friend of Y’s, Ms P. The screenshots of the text messages reveal the following exchange and commence at 8.53 am:
THE FATHER: Hey [Ms P], just in the middle of preparing for a court matter this morning. Call you a bit later?
[Ms P]: Saw your kid
They still live on […]
THE FATHER: Oh… we go to court on Friday week… I don’t even know how I feel about it all now… it’s been so many years…
[Ms P]: Your kids miss you! You doing this for them, not for your ego
Also – you kid was wearing a short sleeve school polo. In 7C
THE FATHER: [Y]?
[Ms P]: Yes
THE FATHER: Thanks [Ms P]. I’ve emailed the mothers lawyers to get stuck into them. I haven’t named you as the source.
[Ms P]: You can name me
I don’t give a fuck
This is neglect!!!
And I’ll stand up for it
Shorts and a thin polyester polo
That’s fucked
THE FATHER: That is fucked…
[Ms P]: He was shivering
Hence I tried calling you straight away
THE FATHER: I’m sorry I should have answered. Thank you [Ms P].
(As per original).
The father sent a third email at 10.45 am to the mother’s solicitors and the ICL within less than half-an-hour saying:
Could the mothers lawyers please contact the mother or [Mr E] and make arrangements for suitable winter clothing to be delivered to the school. I will be making enquiries or issuing subpoena to the school concerning this incident and I would expect to see some notes that warm suitable clothing was delivered to our son.
(As per original).
At 3.11 pm and without a response, the father wrote a fourth email to the mother’s solicitor and the ICL:
I’ve not had any reply whatsoever from either of you.
I intend to rely upon these emails and the lack of replies to seek urgent interim orders removing the restrictions on myself approaching the children’s schools or contacting them and that application will be made on Friday next week.
I hope that [Y] was offered some assistance by the school in keeping himself warm.
It is absolutely shameful conduct and shameful of the legal representatives not to have addressed this immediately and my concerns.
(As per original).
The father conceded, in cross-examination, that there may have been an innocent explanation for Y wearing only a polo shirt at school on a cold day at the time it was sighted, such as having just finished running around the oval. A parent’s concern that their child is not properly equipped for cold weather is an understandable one. However here the father’s response was plainly combative, not child-focussed and his concern must be seen in the context of:
·The father escalating the matter, unprompted and unprovoked and within a short period of time when it could be reasonably expected that legal practitioners may be unavailable to respond immediately;
·The father’s reaction to “get stuck into” the mother’s lawyers and accusing the mother of “complete and utter neglect” upon the objectively limited information of the child being seen with a polo shirt on a cold day; and
·The father threatening further litigation and threatening causing the informant to prepare an affidavit in relation to her observation and “other matters”.
On 30 June 2023 the father sent correspondence to the mother’s solicitor and the ICL advising that correspondence ought be sent to him through a solicitor rather than directly. The father on the same day appeared at a directions hearing on his own behalf. Following the hearing the ICL sent reply correspondence to the father advising:
You appeared in court on your own behalf. You did not tell the court of any legal representation. I have not received any notice filed in court.
I will therefore continue to deal with you until I am properly notified otherwise.
Within a period of less than an hour after receiving that correspondence, the father threatened the ICL with a further complaint to the Legal Services Commissioner:
Give the solicitor time will you please, I only spoke with him this morning.
Instead of spending your time writing these sorts of emails, how about you instead explain why I am left bringing an application to place the children (your clients) into proper support and therapy as per the recommendations and pending a final hearing. These are your clients Mr Holmes and a single qualified expert has made recommendations concerning them, have you read those? Because it certainly doesn’t appear that you have and it is quite clear that you are doing nothing with respect to your clients. Nothing at all.
You can expect another complaint made against you unless you respond an[d] indicate what you propose to do for your clients.
In cross-examination the father was taken to another email from him to the ICL dated 24 January 2023 in a similar vein to that above. The father gave evidence that his emails to various practitioners over the proceedings are his frustration and concern that no one seems to care about the children. It was suggested to him by counsel for the mother that it is more than that, and is him threatening to report legal practitioners to their professional bodies, to which the father responded: “Justifiably”.
The father had to be reminded during the hearing that it was necessary to remain polite to the legal practitioners who were “just doing their job”. The father’s inability to moderate the tone of his engagement in correspondence (or at court) gave rise to concerns about his capacity to do so absent the gaze of the court.
Another matter which occurred in the period between the release of the second single expert report and the trial was that there was indirect communication by the father with X.
The following instances of indirect communication via the father’s sister have taken place since the updated expert report:
(a)On 9 August 2023 the father’s sister sent a message to X saying “Your dad said go well in the semis and tell [Y] he got a great kick in against the [other team]??”;
(b)On 12 October 2023 the father commented on a photograph his sister posted on Instagram of her granddaughters saying “Pretty girls … I had a daughter once… she was everything to me [love heart emoji]”;
(c)On 14 December 2023 the father commented on a social media post by his sister saying “That’s a beautiful shot of Mum and [X] … wow she looks so different .. I haven’t seen her in so long .. [crying emoji]”; and
(d)On 21 December 2023 the father’s sister sent a message to X saying “so the solicitors held up the Christmas cards and gifts your dad sent for you and [Y], you wont get them til January even though they were sent nearly a month ago but itll be good then xxx”.
It is uncontroversial that the father’s sister maintains a communicative relationship with X and also her cousin who is the father’s sister’s daughter.
A significant incident of indirect communication between the father and X took place on 24 August 2023. The mother deposed in her affidavit at [351]:
On 24 August 2023, [X] game [sic] home from her part time job and said to me “Dad was messaging my boss messages on Instagram.” The following day, I spoke with [X’s] boss who sent me screenshots of the messages […]. They are message[s] sent from [Mr Reich’s] Instagram account. I found them strange because they purported to be messages asking if food could be delivered from [Suburb Q] to his address in [Suburb R]. The messages gave his address and mentioned the service of “[…]” which is what [Mr Reich] commonly calls [X]…
In evidence were text messages between an Instagram account of the father and X’s employer. The conversation commences with the father replying to a photo of the food posted by the business and appears to span multiple days:
THE FATHER: Oh I want this! Do you deliver to [Suburb R]?
[S Street, Suburb R]. I will order four of these please!
[X’S] EMPLOYER: Thank you very much for your reaction!
Unfortunately Uber doesn’t deliver [Suburb R] from [Suburb Q]
We are really sorry for that
THE FATHER: No need for sorry. Totally understand. What we might do instead is order some food for pick up and I we can drive there one night. Your food looks amazing [happy face emoji]
[X’S] EMPLOYER: Thank you for your understanding! We look forward to seeing you!!
THE FATHER: Oh we tried your food tonight... please thank [X] for her lovely service.
[X’S] EMPLOYER: I will!
Thank you very much!!
When the father was cross-examined about the above exchange, he said that he had not in fact attended at X’s place of employment and that the message about that which he had written was untrue.
On 10 March 2024 the father filed a case outline identifying that he intended to rely on an array of historical affidavits from these proceedings, including an affidavit filed on 11 August 2021 by Mr T, a former partner of the mother between 1996 and 2001 – eight years before the parties’ first child was born. That affidavit alleges, among other things, that the mother:
(a)Has undiagnosed mental health issues or issues that cause her to be unpredictable and often violent;
(b)Has a tendency towards self harm;
(c)Was violent to Mr T between the years 1996-2001, including that she tried to stab Mr T in the chest with a knife;
(d)Assaulted X at a young age;
(e)Inferentially, was sexually abused as a child; and
(f)Used drugs and had a drug overdose.
This was in a context where he was seeking orders that the children live with the mother and that she has sole parental responsibility for them.
Although in cross-examination the father readily accepted his deplorable behaviour from the past, the above matters were maintained as a focus of the father in cross-examination and were not resiled from in the sense that he continued to hold them as true, relevant and necessary for the Court to hear. Specifically as to the affidavit of Mr T, it was put to the father by the ICL that he wanted the Court to read all of the horrible things about the mother. The father disagreed. It was put that it was grossly offensive, to which the father responded that he had not looked at it like that. This exemplifies limited insight.
Objective evidence of the father’s readiness to accept his previous harmful behaviour dates back to 2021 with it being recorded by the Family Consultant, Ms U, in the Child Inclusive Conference Memorandum dated 6 April 2021 at [6] that the father “accounted for abusive messages attached to the mother’s affidavit material by stating that he was distressed at the time due to behaviour of the mother towards him”. Notwithstanding this apparent acceptance of the inappropriateness of his conduct the father continued to engage in hostile, threatening and abusive correspondence in the following years and, in 2024, continues to hold views that demonstrate a lack of insight and an absence of child-focus.
In April 2023 the single expert noted that the father had “accept[ed] responsibility for his actions”, yet he continued to engage in combative behaviour that would cause and has caused considerable anxiety to the mother. The father may have publicly acknowledged his culpability but it is his ongoing conduct (not his words) which is the best predictor of his future risk.
One of the ways in which the single expert considered that the children may be assisted was by a continuation of the father’s engagement with his own therapist. It was first recommended that the father consult with Mr C in the single expert report released 27 April 2022. The father commenced fortnightly sessions with Mr C on 25 May 2022.
The single expert recorded at [95] that Mr C said to her that Mr Reich “definitely still holds some anger but now manages it very differently”. It was recorded at [100] “[Mr C] indicated profound changes in [Mr Reich’s] insight and understanding, and a capacity to take responsibility for his past behaviour and the impact on others”. However, for the reasons I have identified above, I am not satisfied that the father has made changes sufficient to warrant it being in the best interests of the children to spend time with him.
The father deposed at [69] of his trial affidavit that he continues to see Mr C.
Unfortunately, there was no objective evidence post-dating the updated expert report that reveals anything about the father’s attendances upon Mr C.
The single expert was provided with the material which each of the parties had filed or relied upon between the time of her recommendations in the second report and trial and gave oral evidence at the hearing which departed from the recommendations in her second report such that she no longer recommended orders providing for the children to spend time with the father. She resiled from the recommendations set out in [112] of her second report. The ICL asked the single expert why her recommendations had changed and she said:
…I had more concerns after reading the updated material and having given consideration to what has happened in the last year since my update report [of] almost a year. I have more concerns about the risk to the children. I have more concerns about [Mr Reich’s] level of insight and his capacity to – to move forward. I have more concerns about [Ms Banerjee’s] – the impact on [Ms Banerjee] if there’s any communication…
…
I have concerns about his insight and perhaps whatever insight he did have in both the interview with me and with [Mr C] seems to have reduced, I think. His affidavit to my mind raises serious concerns about his insight. I saw little self-reflection about his behaviour or what he learned in therapy. I’m concerned that he again refers back to the lack of physical abuse of the children on his part, that he continues to talk about the incidents of physical punishment by [Ms Banerjee] in 2019.
…
…I guess a focus again or an ongoing focus on [Ms Banerjee’s] perceived transgressions including the incident of physical punishment in 2019. He still seems to blame her for many incidents in the past including referring him to [an authority] for the children not attending court, for the technical breach of the AVO as he refers to it; he continues to be critical of her, as I read it, and asserts that she poses a risk to the children. I have concerns that he talks about forgiving her despite her behaviour in the past. That raises concerns to me about the family violence dynamics and whether he has properly addressed that in therapy and also in his course about changing behaviour. And I’m concerned about his inclusion in – of [Mr T’s] affidavit. To my mind, that just seems menacing given that it really is a very historical account of [Ms Banerjee]. And then, as I read [Ms Banerjee’s] affidavit, that to me raises concern about his hostility and blame and anger towards her and also how intimidating and threatening parts of his communication have been with her lawyer and with the ICL. I am concerned that her new treating therapist has made a diagnosis of PTSD and concerned about – and is concerned about how she will cope if there’s any contact with [Mr Reich] particularly as she’s going through therapy. [Mr E’s] affidavit was also concerning. I was not aware of the extent of the abuse of those messages to him in the past nor the direct threats to him to cause trouble in the future made by [Mr Reich]. Additionally, I’m concerned that [Mr Reich] appears to know where and when [X] was working, that he seemingly contacted her boss and gave his address to her boss. If it’s accurate that he was watching [Y’s sport] then that’s concerning and if he has been trying to communicate indirectly through Instagram of the aunt’s with the children, that’s also concerning. I’m also concerned about the strong criticism of [Ms Banerjee’s] parenting on the basis of [Y] wearing a t-shirt in cold weather and concerned about that level of escalation where he seems to have written several letters in one day. Agitating not only about [Ms Banerjee’s] parenting but suggesting that on that basis he should be permitted to go to the school. I find that particularly concerning because it suggests to me a lack of consideration about how that would be for [Y], if there was tension or conflict at the school and if that was no longer a safe place for him. Overall, I’m concerned about his – [Mr Reich’s] inability to manage his behaviour whilst these proceedings are on foot. To my mind, that raises more concern about what might happen when the proceedings end. I also have concern that that’s his behaviour during therapy or after significant therapeutic input when he hasn’t been working, when he hasn’t been using drugs, when he’s in a supportive relationship. That makes me more concerned about the risks, if any or all of those factors were to change in the future.
…
…I’m also concerned about the assertion that he hasn’t taken the opportunity to write letters since my – to the children since my updated report. I find that concerning because the intention of the letters is to help the children and it raises some concern about how self-focused he is because he was agitating for the children to write back but he hasn’t seemingly been writing letters to them. So that also prompts some concern about whether he’s seeing [Mr C] because I would have thought that that would have been a significant focus of therapy with [Mr C] was about writing letters to the children. So I’m not sure whether he has or hasn’t continued therapy but it does prompt some concerns about therapy to me. So overall, I’m not confident that he has the insight or capacity to engage in the therapy with the children that I outlined in my updated report or to take the process slowly enough or at their pace. I have concerns that he has the ability to do that. Given that it has been three and a half years, I think the children now need some certainty about what’s to happen and I would recommend no – no contact and for the children to be engaged in therapy to support them if that happens. Either way, they will need therapy.
(Transcript 13 March 2024, p.5 lines 2-7, l1-17, line 25 to p.a6 line 14, lines 16-30)
I am persuaded that the father has more insight now than at any point after separation. He expresses remorse for his conduct as it relates to the mother, her partner and the children. He has committed to the work identified by the single expert which was designed to address his past conduct and its consequences. He ultimately agreed to resolve this matter by consent. But, the single expert’s view is that, notwithstanding the work, the level of insight is insufficient to protect the children. In conducting a cost-benefit analysis, the risk of psychological harm, of destabilising the children and their primary care giver is too great to conclude that any orders for reintroduction of time are orders which would be in the best interests of the children.
The single expert concluded that unless she could be confident that the father could engage in the therapeutic setting with the children in a manner which was protective of the children then the whole foundation for her recommendations fell away.
In her first report the single expert, said, of the father:
108.…My opinion is that [Mr Reich’s] behaviour reflects a relatively long history of unstable mental health [that] has undoubtedly impaired his capacity to parent [X] and [Y]. My view is that he can present well for short periods of time. It appears that he functions better in relationships, but that at times of stress, he decompensates and his mental health deteriorates. In my opinion, the intervention to date has not adequately identified or targeted his treatment needs.
There are a number of issues which have become centrally important to the father such that he has fixated on them in a manner which is indicative of the fact that his level of insight is less than optimal. Those issues include:
(a)Whether the mother has been paid monies to which she was not entitled by the government;
(b)The assault on Y – Whether the mother engineered the listing of the charges against her so as to ensure that the children were not able to give evidence;
(c)The mother’s role in the father losing and not having re-issued his practicing certificate; and
(d)The circumstances of the making of the initial recovery order ex-parte.
The father relied on historical affidavits filed by him in these proceedings about the above matters.
The mother used corporal punishment (or physical discipline) when she pulled Y by the ear such that he was injured in late 2019. Y had been misbehaving and was defiant when asked to stop. That led to the mother grabbing him by the ear. If there were any evidence that this was a pattern of behaviour by the mother (as opposed to an isolated event) then the court would be very concerned for the children’s physical safety. Initially it appeared as though the father accepted that it was uncharacteristic and unlikely to be repeated. That much seemed clear from the COPs entry which read in part: “At this stage an AVO has not been applied for due to [Mr Reich] not having concerns about the children returning to the accused.”
Subsequently, the police elected to charge the mother with the assault on Y. While the father had not been apparently concerned about either the return of the child to the mother or the determination by the police to seek an AVO he then became “furious” when the police withdrew the charges. He made contact with the police in late 2020 in an effort to have the charges reinstated. He remained highly aggrieved about the withdrawal of the charges up to and including during this hearing. I was bemused by the apparent inconsistency in his position and asked if he could clarify what gave rise to this change of position. His evidence was to the effect that he found it difficult to maintain contact with the children by mobile phone and this caused him to worry that they were unsafe. I did not find his explanation satisfactory. The level of his anger about the charges being withdrawn remained high notwithstanding the passage of time and the fact that there was no evidence that the children had experienced any further physical punishment. It seems that the father believes this outcome was engineered by the mother and for that reason he remains fixated with the outcome.
The single expert’s oral evidence addressed her concern that the father has had the benefit of Mr C’s therapy, has employment, appears to be in a supportive relationship but is nonetheless fixated on matters which cause him high levels of anger and result in him pursuing complaints and threats which undermine the gains he has achieved.
This continued preoccupation and attendant anger on the part of the father raise a concern that time between the children and the father would bring with it a real risk that the children may directly or indirectly be exposed to the father’s views of the mother and Mr E and even innocuous comments of the children may be weaponised by the father in a manner which undermines the children’s stability in the mother’s household.
It is necessary for me to consider the children’s views about time because I am being asked, by consent, to make orders which are inconsistent with the express views of older children.
Children’s views
The parties’ daughter, X, was born in 2009 and will turn 15 shortly. I am obliged to consider any views which she has expressed having regard to her maturity and level of understanding and, in this case, the manner in which those expressed views have been formed.
X has expressed a relatively consistent view throughout these proceedings. In the Child Inclusive Conference Memorandum Report to Court dated 6 April 2021 she indicated that “she misses her father and would like to see him.” Another consistent theme in the material is that X is not certain about the reasons why she does not see her father.
By the time of the first single expert report, X remained sad about not seeing her father (but also sad about her father’s attempts to make her reject Mr E).
In the most recent report of the single expert, she records that X “acknowledged that she would like to see her father”. When the single expert explored the issue with X, in particular whether X attributed blame to anyone for the current situation (where she does not see her father), she indicated that she does not. It is recorded that she said “she would be “fine” if she did not see him but also said “it would be nice” to see him.” She also indicated that she misses her father.
The single expert explored with X the letters she had received from her father and the reasons why she may not have written to him. She indicated that it was not clear to her what prevented her from writing back at this stage. Dr B concluded:
81.Overall, it was evident that [X] is continuing to miss her father, remains confused and saddened by his absence in her life and is using an avoidance strategy to cope with the loss.
One way in which the Court attaches weight to the views of a child is by making orders which accord with those views. Here her views are not concrete, in so far as she does not say – I would like to see my father weekly or under specific conditions. Her expressed view is more theoretical: seeing him would be nice.
I accept her view as genuinely held and expressed in a manner which is consistent with her age, maturity and her experiences. In addition to what she told Dr B it is also plain that she has sought out information about her father through social media and engaged with that information. This also suggests a desire on her part to connect with her father.
If there were no risk issues in this case then I would have little hesitation in making orders which permit her to have time with her father in accordance with her views. In the circumstances of this case I would be very hesitant to frame an order in those terms. There is a history of the children being overly involved in the adult conflict and, even in the father’s case, manipulated by his communications with them. I could not be confident that if I were to make an order which was expressed as time between child and father consistent with the child’s views she may not feel pressure to spend time – even if not as a consequence of any direct approach by the father. I have formed that view based on the evidence which suggests that there has been indirect contact between the child and the father and his evidence to the effect that he anticipates that a situation where X self-places with him is imminent.
The parties’ son Y was born in 2012 and is 12 years old. When Y met with a Family Consultant in 2021 he expressed the view that he misses his father and would like to see him. He echoed his sister’s observations that he was not clear about why he does not see his father.
Y expressed similar views to the single expert at the time of the interviews for her first report and then again when he met with her to update the position. Both children are sad about the absence of the father from their lives and the single expert has made plain that it would be very useful for the children to have some age-appropriate explanations for his absence. This could be the focus of therapeutic assistance.
It follows that I accept the assessment of the single expert that it is not in the children’s interests to make orders which would see the children spend time with the father. The mother supported a continuation of the communication orders as final orders and I will make those orders by consent.
The orders also provide for release of the single expert reports and these reasons for judgement to the parties for provision to their own therapists (should they so elect) and to any therapist assisting the children. The intention of the latter order is to assist the therapist in helping the children reconcile their desire for a relationship with the father with the current restrictive orders which have been made for their protection.
ICL Costs
The ICL is funded by Legal Aid NSW and made an application that the mother meet half of the ICL’s costs. On the information before the court it is likely that the father would qualify for a fee waiver. Costs are governed by s 117 of the Act.
Section 117(3) and (4) provides:
(3)To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer;
In submission on behalf of the mother it was argued that the proceedings have occasioned significant expense. I accept that is so but there is no evidence which satisfies me that an order would result in “financial hardship” and so I propose to make the order as sought by the ICL.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 21 March 2024
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