Binder and Merza

[2010] FamCA 13

FAMILY COURT OF AUSTRALIA

BINDER & MERZA	[2010] FamCA 13
FAMILY LAW – CHILDREN – Interim application – Where child’s physical abuse allegations against the mother are unsubstantiated – Where the father has failed to encourage the child’s relationship with the mother – Prior consent orders for shared care reinstated – Father’s time with the child to be supervised until further review
APPLICANT:		Mr Binder

RESPONDENT: Ms Merza

INDEPENDENT CHILDREN’S LAWYER: Ms Stewart, DA Family Lawyers

FILE NUMBER: BRC 5550 of 2009

DATE DELIVERED: 13 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 13 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson of Counsel appeared for the Applicant Father

SOLICITORS FOR THE APPLICANT: Simonidis Shoebridge Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Kalle, Solicitor of DK Law appeared for the Respondent Mother

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Stewart, Solicitor of DA Family Lawyers appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Subject to the terms of these Orders, the Orders of FM Baumann dated 4 March 2005 be reinstated.

2. The child, D born … March 2003, live with the Mother.

3. The Father to spend supervised time with the child at such times and places as agreed between the parties or as may be further ordered by this Honourable Court.

4. The supervisor to be such person as the parties may mutually agree or in the event they cannot agree such person as may be approved by the Independent Children’s Lawyer.

5. The Father to communicate with the child either by telephone or in written form as may be agreed in writing between the parties.

IT IS ORDERED THAT:

1. The Father to provide a copy of the child’s 2009 final school report to both the Independent Children’s Lawyer and the Mother’s legal representatives.

2. Within seven (7) days the Father to supply a copy of the record of the child attending the C Medical Centre on 3 December 2009 to both the Mother’s legal representatives and the Independent Children’s Lawyer.

3. The Mother to supply a copy of her telephone records to the Father’s legal representatives and the Independent Children’s Lawyer.

4. The proceedings be adjourned to the Judicial Duty List at 10.00 am on
   29 March 2010 at the Brisbane Registry of the Family Court.

5. Each party be at liberty to apply to re-list on the giving of seven (7) days notice to the other parties.

6. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5550 of 2009

MR BINDER

Applicant

And

MS MERZA

Respondent

REASONS FOR JUDGMENT

1. I’m asked to make orders in relation to the six year old daughter of the parties.  In March 2005 consent orders were entered into.  They provided for the child to reside with the mother and for the father to spend time with the children for five nights out of every 14 and for half the school holidays.  There is some suggestion in the material that over a period of time it became a shared care arrangement.  Whether it became seven nights out of 14 or whether it stayed as five out of 14 and it was deemed to be a shared care arrangement, is not greatly to the point.

2. The reality is that on 20 July 2009 as a result of serious allegations made about the child being mistreated by the mother, orders were made that the child lives with the father and the mother’s time with the child be supervised.  The allegations included the child being chased with a knife and of having her head bashed on the kitchen table.  The orders provided the mother was to spend time, as agreed, and in particular if there was no agreement from Thursday after school until 6.00 pm to operate from 30 July, and each Saturday from 10.00 am until 4.00 pm, to operate from 25 July.

3. Since the making of those orders on my reading of the material the father has been mean-spirited indeed in encouraging any form of relationship between the child and her mother.  The child will speak to the mother on the phone sometimes on a Tuesday but never any other day of the week, even though the mother’s sworn evidence, and I expect it will be borne out by phone records, is that she has phoned the father’s place, left messages for the call to be returned but she has never been able to talk to the child other than as stipulated by the father, namely, on Tuesdays.

4. The father has shown himself non-compliant with court orders.  The mother was denied time with her daughter simply because the six year old girl said she didn’t want to go.  That’s the father’s version.  There are sound reasons for thinking the child is mimicking what she believes the father wants to hear.  The use of the mother’s Christian name – the child referring to her mother by her first name – is yet one more example of the attitude in the father’s household.  Instead of encouraging a relationship between mother and child the exact reverse takes place.

5. The child is held at an office while she’s sick when the mother offers to take her to her home.  The mother wants to work at the school tuckshop, the father objects.  Almost everywhere I looked in the material I came across negative attitude emanating from the father’s household.

6. The orders of July 2009 were confirmed by myself for reasons I gave at the time on 12 October, having heard from the family consultant, Ms B.  For the reasons I gave on 12 October I made orders that a psychiatric assessment take place and that Ms B prepare a family report.  The psychiatric assessment has taken place; the family report has not.  The interviews are in less than a month’s time.  However a detailed assessment has been done by the Department of Child Safety.  It’s not difficult to see the number of complaints that have emanated from the father’s household.  The officer investigating has done child protection history checks, an interview with the child, interviews with the mother, the father, liaison with the school, liaison with other external agencies, observations, safety assessment, and family risk evaluation. 

7. The file notes:

   “[The child] disclosed that her father had told her that her mother only bought her things to make her love her again and that her mother was mean, sucked and was not a nice mother.  Hence the origin, validity and reliability of [the child’s] disclosures are questionable.”

   “- - it’s been assessed that [the child] has not experienced physical harm.  [The child] was interviewed and although she made disclosures about “being smacked” and having her head banged on the kitchen bench, she was unable to provide the context, the chronological nature or sequencing of these events, nor did her demeanour change as expected between when talking about these events, presumably a traumatic experience, and when talking about enjoyable experiences such as playing with her DS game machine, and with her step-siblings.”  Underlining not in the original.

8. The father cannot have it both ways – accept the child’s statements as to the mother’s mistreatment but reject her claims her father has told her her mother is mean and not a nice mother.

9. To my mind it is likely that the reverse be the case namely the child has made accurate statements as to what she has been told by the father – it accords with the attitudes emanating from the father’s household to which I have previously made reference and this in turn has led to the child making fabricated allegations against her mother.

Assessment of Unacceptable Risk of Future Harm

1. It has been assessed by the Department that the child is not at risk of unacceptable future physical harm.  It has been assessed that the child is at risk of unacceptable future emotional harm:

   “[The child] is at risk of future emotional harm due to constant changes in the nature and frequency of the contact with each of the parents and their inability to easily adjust to the differences in expectations, environments, rules and boundaries imposed by each of her parents.”

2. The plain, simple fact of the matter is if I had this report before me – or if the mother had it in her possession on 20 July, I can guarantee there wouldn’t have been a change in the orders.  If I had the report before me on 12 October I would not have made the orders I did at that time.  I would have held that the father’s holding-over of the child, contrary to the then existing orders, was inappropriate and that the 2005 orders should immediately be reinstated.  The report notes – and this will need to be investigated and I will be asking the family consultant, Ms B, to focus on it – that – this is page 3 of the report:

   “[the father] has a history of keeping [the child] at home and away from peers, school and other outsiders for extended periods of time, despite her needs for socialisation, external monitoring and education.  In doing this,
   [the father] has breached the conditions of the family law court.

   There are concerns, based on [the child’s] disclosures, that a parent has intentionally coached, coerced or bribed [the child], or has allowed others to coach or coerce [the child] in an effort to hinder the investigation and assessment in the family law court proceedings. 

   There are concerns that [the child] is at risk of harm from being placed in the middle of ongoing familial dispute…”

3. The mother has attended numerous parenting programs inconsistent with a person who has said to have engaged in the sort of conduct of the child’s allegations.

4. Under the heading “Parents’ Willingness and Ability to Protect” the report writer observes:

   “It’s been assessed that [the mother] is a parent both willing and able to meet the care and protection needs of [the child]. [The mother] has demonstrated insight into the child protection concerns and presented evidence to support the notion that she is addressing previously perceived deficits in her ability to care for and protect [the child], including her completion of a PPP parenting program, engaging in psychotherapy to address personal issues and to minimise the effect of the current circumstances that have on her own emotional health in making alterations to hand-over procedures to minimise the affect on [the child’s] emotional stability.” 

5. The report writer made positive comments about the father’s desire to protect the child, and finds that the child is certainly not at risk of physical harm.  The Department resolved for no ongoing intervention due to the appointment of an independent children’s lawyer and the fact that this court was seized of jurisdiction in this matter.

6. I have had regard to the reports of Dr K detailing his assessment of the father and the mother.  I have concerns about the nature of the statements made by the father to Dr K.  The mother annexes to her affidavit telephone conversations that she has had with the child.

7. On 29 June the mother says:

   “Mother:       I love you.

   [Child]:         Me too.

   Mother:         I miss you.

   [Child]:         Me too.

   Mother:         How are you? What have you been doing?

   [Child]:         Nothing.

   [The child] had a sad tone in her voice.

   [Child]:         I want to go to school, I love school.”

8. The father was withholding the child from school.  He kept her away for a week because he was concerned and knew full well that the orders that were in place were that the mother was to have the care of the child.  He says through his counsel that he has acted honourably to protect the child in view of the allegations.  He could have been a little bit sceptical of the allegations.  He could have taken a totally different approach, but he didn’t.  He instituted court proceedings and the court responded as it normally does when serious allegations such as these are raised.  I’m satisfied that the child’s allegations have no credibility, and on that basis, the orders of 2005 are to be reinstated.  So the child is to live with the mother as the primary carer.

9. The legal representative for the mother submits that the court should cease contact between the child and the parents in the father’s household because of the risk of ongoing pressure from the father or members of his household.  It is a step that I am most reluctant to take, but the view that I take is nothing good will come out of the father’s household in the short term.  It is appropriate to wait and see the report from Ms B and how she assesses the situation.  I will adjourn this matter before myself on 29 March.  That is two and a half months away.  The matter can be brought on earlier.  I would ask Ms B to expedite her report if she has any concerns whatsoever about the accuracy of the assessment done by the Department of Child Safety,  if she has got any concerns about the issues raised by Dr K in his report, or the material in the affidavits.

10. I do have to say the telephone conversations detailed in the mother’s affidavit which I’ve adverted to have a ring of truth about them.  The mother would need to be a writer of considerable skill to have fabricated those comments and assessments by the child.  The child’s love for the mother is very much in evidence and that relationship is seriously prejudiced if the child is to remain in the father’s household.  I will suspend the father’s time until the matter can be reviewed by the court.  It is very sad that I have to do that.  I’m sure the child loves her father.  I don’t need any convincing he loves her greatly.  It is just that the attitude towards the mother has to be changed if any positive gains are to be had out of this litigation.

11. The law says a primary consideration I have to take into account is the benefit to the child of having a meaningful relationship with both parents.  I’m satisfied that the mother would not sabotage the father’s relationship with the child.  I’m far from satisfied that the reverse is the case, because there are indications all through the material that I’ve read of a mean-spirited, bloody-minded, anger-driven attitude on the part of the father.  He does it with full love of the child, not realising the destructive nature of what he is doing to this little girl.

12. I will allow for there to be telephone communication and any other form of communication, such as written communication between the father and the daughter, as may be agreed between the parties. The mother has to demonstrate that she can be gracious.  The phone records will speak for themselves.  The mother may want to monitor the calls; it is a matter for her.  Once I’ve received the Family Report, I can set this matter down for an urgent hearing, and I propose to do just that.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  13 January 2010

ADDENDUM TO JUDGMENT

During the course of submissions I raised the possibility of the father having supervised time with the child until the matter returns to court after the family report is prepared but I neglected to canvass this aspect in my ex-tempore reasons.

I propose to make an order that the father spend supervised time with his daughter at all such times as the parties may agree or as may be further ordered by the court.  The supervisor is to be such person as the parties may mutually agree or in the event they cannot agree such person as may be approved by the Independent Children’s Lawyer.