Bryce & Bryce
[2020] FamCA 653
•31 July 2020
FAMILY COURT OF AUSTRALIA
| BRYCE & BRYCE | [2020] FamCA 653 |
| FAMILY LAW – PARENTING – where family report is released in which children are recorded as fearful of being physically harmed by the mother with whom they spend weekly time supervised by her partner – where children also express fears to Family Consultant that their father (primary carer) and his partner will be harmed or killed by associates of mother’s partner – where Family Consultant records that 10 year old child asserts that mother has previously commented on him having told family therapist that he feared mother would stab him with a knife – where family report has not been tested by cross examination of Family Consultant and final hearing is in 3 months – where, in the interim, the Court is not satisfied that there is an unacceptable risk to the children that they or the father and his partner are in danger of being physically harmed by or at the behest of the mother. FAMILY LAW – PARENTING – obligation of Court to have regard to views of children – where evidence must be adduced of children’s views – where Court must provide safe and scaffolded environment for views of children to be ascertained and put before the Court – where there are no statutory safeguards. FAMILY LAW – PARENTING – where consideration of the children’s individual views is mandatory – where views are ascertained in part from a s 62G(2) family report – where there are no protective mechanisms in place to safeguard children from adverse impact of their views becoming known to parents as a consequence of family therapy and/or the family report being published – where such mechanisms were necessary in this case. FAMILY LAW – INTERIM PARENTING – where matter listed on the initiative of the court and all parties are provided with opportunity to read the family report – where there was no time for a meaningful hearing before next spend time occasion. FAMILY LAW – INTERIM PARENTING – where, in the short term, the risk to children’s emotional wellbeing if they spend time with mother outweighs mother’s right to procedural fairness – where mother’s time with children suspended pending further application. FAMILY LAW – PARENTING – the child’s voice in parenting proceedings – Australia’s obligations under United Nations Convention on the Rights of the Child – where obligation to assure that a child who is capable of forming his or her own views has an opportunity to express those views freely (Article 12) – where child’s right to express views freely is undermined as there are no safeguards for the child against the adverse impact of those views becoming known to parents. |
| Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (“Convention on the Rights of the Child”) Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) |
| Harvey & Harvey [2018] FamCA 516 R & R: Children’s Wishes [2000] FamCA 43 |
| APPLICANT: | Ms Bryce |
| RESPONDENT: | Mr Bryce |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Ilias |
| FILE NUMBER: | MLC | 3821 | of | 2014 |
| DATE DELIVERED: | 31 July 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 31 July 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Not applicable |
| SOLICITOR FOR THE APPLICANT: | Plaza Legal |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Aitken Partners Pty Ltd |
Orders
IT IS ORDERED THAT:
Pursuant to rule 15.04 of the Family Law Rules 2004, copies of the report by Family Consultant B dated 30 July 2020 may be given to:
(a) the parties;
(b) the lawyer(s) for the parties; and
(c) with effect from 4:30 p.m. yesterday, to the lawyer(s) representing the children in the proceedings under s 68L of the Act;
(d) Mr C, psychologist.
Subject to further order of the Court, a copy of the Family Report may further be provided by the Court or a party to the Proper Officer of any of the following institutions and/or any of the following persons:
(a) A Children’s Court;
(b) A State Court in which a family violence order has been sought by one of the parties against the other party;
(c) A child protection authority;
(d) A State or Territory Legal Aid authority in the event one of the parties is receiving or making application for financial assistance for these proceedings;
(e) A convenor of any family dispute resolution conference;
(f) A practitioner assisting, or assigned, to a party in a dispute resolution conference;
(g) Any other expert jointly appointed by the parties or by the Independent Children’s Lawyer for the purpose of giving evidence in the parenting proceedings.
(h) A Children’s Contact Centre proposed to be used to facilitate time or communication between the child/ren and another person including a party to the proceedings.
(i) A therapist of treating social scientist for the children (or any of them) or the parents (or either of them).
EXCEPT with permission of the Court, no person release the Family Report, or provide access to the Family Report, to any other person or institution other than those specified above.
If an objection pursuant to paragraph 2 of this Order is made and the person seeking to provide the report to another person or institution persists with his or her request for the Court to do so, I DIRECT that the matter be listed before me when I am next reasonably available for determination of the objection.
Unless otherwise ordered by the Court, any party requiring the Family Consultant for cross-examination at the final hearing provide at least 21 days’ notice in writing to the Family Consultant and to each other party to the proceedings AND in the event that notice is not given in accordance with this Order and the Family Report has been released at least 21 days before the hearing, the report be admitted into evidence without the Family Consultant giving evidence or being cross-examined.
IT IS FURTHER ORDERED THAT:
The Independent Children’s Lawyer forthwith provide the Family Report to Mr C.
Weekly face to face time between the children, X born … 2012, Y born … 2010 and Z born … 2006, and the mother be, and is hereby, suspended until further Order.
The electronic communication between the children and the mother henceforth be by video conference or on such other device as the parents may agree upon and be recorded by the father (and the mother if she wishes), without expressly informing the children of the recording.
Liberty to apply urgently be reserved to the parties, including receiving any oral evidence from Mr C.
The Independent Children’s Lawyer inform the children as soon as possible of the suspension of their face to face time with their mother and convey to the children, in words likely to be understood by each of them, that the judge decided to suspend their time with the mother whilst consideration is given to the Family Report and that the mother knows that stopping face to face time was not a decision of the children (or of any of them).
My reasons for decision this day be transcribed.
The Independent Children’s Lawyer provide my reasons for decision of today to Mr C forthwith upon publication.
The Independent Children’s Lawyer ascertain Mr C’s views on interim time between the children and the mother, to occur between now and the final hearing in November 2020, and convey those views promptly to the parties. Further, if Mr C is requested to provide a report or give evidence as to interim parenting arrangements, whether that will be by written report or orally.
Subject to further order of the court, the mother and father be equally responsible for and pay the reasonable costs of Mr C conferring with the Independent Children’s Lawyer.
AND THE COURT NOTES THAT:
A.The Family Report is admitted into evidence but is untested.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of any proceedings under the Family Law Act which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bryce & Bryce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3821 of 2014
| Ms Bryce |
Applicant
And
| Mr Bryce |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)
This matter comes before me urgently, on the Court’s own initiative, following the publication of the family report of Ms B, Family Consultant, on 30 July 2020. The report is the third family report prepared by Ms B in these proceedings which have been ongoing since 2014. All family reports have been prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”).
At the commencement of the proceedings the children, Z, Y and X, were respectively eight, four and two years of age. Z is now 14, Y is 10, and X is 8; and they live with the father and spend time with the mother each Sunday in the company and under the supervision of her partner, Mr D. Extant orders provide that the children have telephone communication with the mother on two occasions each week.
The parenting applications are listed for final hearing before me to commence on 16 November 2020, and the family report published yesterday was prepared in anticipation of that hearing.
The children are being seen by Mr C, psychologist, by way of family therapy.
I listed the matter after reading the family report late yesterday afternoon. I commend the parties and the practitioners for making themselves available at such short notice. This mention was conducted during the shutdown for the pandemic and was conducted on the Microsoft Teams platform. The parties left the hearing after I pronounced orders late in the day and I provide these reasons in their absence,
Ms Mimmo, her solicitor, appeared on behalf of the mother. Mr Bryce appeared in person. Ms Ilias, the Independent Children’s Lawyer, also appeared. Ms Ilias had read the report prior to the mention because it was provided to her late yesterday afternoon. The report was only made available to the parents and the mother’s solicitor after the mention had commenced. The mother was present for the first part of the hearing but did not reappear after a scheduled break in the proceedings during which she would have had an opportunity to read the report.
The report contains many disturbing references to the children’s negative impressions and fear of the mother. The children’s presentation, as recorded in the report, is at the extreme end of the scale. Having regard to the extant Orders which provide for the child to spend time with the mother this coming Sunday, I made known to the parties that my preliminary view was that between now and the final hearing in November 2020, the interim face-to-face time should be suspended, subject to the entitlement of any party to make application for the interim time to be reinstated or for some other interim spend time arrangements to be put in place. The parties will have liberty to apply urgently. If I had more time before the weekend, the suspension could have been the subject of submissions and evidence. But, as matters stand, the immediate issue is what happens in relation to the children being required to spend face-to-face time with their mother this Sunday. Standing the matter down for an hour or two and inviting the mother’s lawyer to formulate submissions and be prepared to cross examine Ms B would have been illusory because it takes about an hour to read the report itself. I have adopted an unusual course based on what I perceive is the need to protect the children from imminent emotional harm.
I referred the parties to particular paragraphs in the report which included the following passages. Pressure of time does not permit me the luxury of placing the extracts thematically, so they appear in the order that appear in the report, as follows (and are not a substitute or reading the report in its entirety):
24. Over the life of this matter the children have identified circumstances of risk, impulsive behaviour and experiences of violence perpetrated by their mother. Aside from direct experiences of physical violence they also consistently reported feeling abandoned or neglected by their mother, their issues ranging from their mother’s absence from school events and interest in their life to include neither being invited nor informed about her wedding to Mr D and currently not being invited to W’s party.
[…]
60. Ms Bryce again spoke about the current counselling with Mr C and how she had been informed about the children’s views, notably that of Y. Ms Bryce explained, allegedly after seeking counsel from Mr C, that she had spoken to Y and reflected back to Y his claim “…that I don’t love him” and his concern “…he (Y) was scared I was going to kill them.” Ms Bryce explained to all the children, recently “…I understand you raised concerns that I might kill you with a knife, thank you for sharing I understand now, and I have made pork for dinner.” Her lack of insight appeared to have bolstered her belief that with a couple of well-chosen sentences she could enduringly adjust Y’s thinking about the past. When encouraged to reflect on the weightiness of Y’s claims Ms Bryce advised “…I feel so sad and sorry they (the children) feel this way” and then retreated to her position that she needed time with the children “…to alleviate these feelings.” In this vein Ms Bryce then advises “…I spend time with each of the children (alone)” and “…I don’t see what Mr Bryce is seeing…I see the children differently” her position enabling her to reaffirm the denial of the impact of history, and her behaviour on the children’s relationship with their mother. Ms Bryce appears unable to address the children’s stated belief that her behaviour is unpredictable claiming, without insight, that when in her company “…the children don’t raise concerns with me” although “…they can be aloof on arrival.” Ms Bryce then segued into her views of family and that “…Mr D [who is the mother’s partner] loves the kids in his life” and that other people visit her home, and they “…adopt the children” and these people also see her as “…restricted” with the children. Ms Bryce’s commentary is unable to focus on the children, or their needs or to reflect on their experiences to even consider in passing their views as having some foundation in reality.
[…]
109. Z [14 years] reported that he has “…a difficult time with mum” because “…I don’t feel safe there, I don’t like going there.” He reported his difficulties with his mother’s “…changing moods” such as is apparent “…nice mum buys us stuff” but when his mother is angry “…she is scary and she spoke about sending people over to hurt dad and Ms G [the father’s partner], about a month ago.” Z stated that this “…made me feel scared, I start to have flashbacks about when I was younger, and I was with mum and I was scared, and I have flashbacks about going to mums.” These different features, including his lingering distress about his mother and by comparison the school’s swift intercession in events separate how he has recovered from the school issue and continues to consider he is unsafe with his mother. Z then made reference to the Nutella incident, his nut allergy making such a situation life threatening for him, explaining his mother’s cavalier attitude “…shows she (Ms Bryce) doesn’t care about my feelings”.
110. Z reported a heighted intensity on those (rare) occasions Ms Bryce and Mr D [the mother’s partner] argued “…because it was like when dad and her broke up, it (home) was never a safe place.” Z was clear he was reliving a time, post separation, when the children had lived with their mother and the fear of being returned to reside with his mother means that each Court date “…makes me terrified I am going to be taken away from dad.”
111. At his mother’s home, Z reported he largely remains “…in the room under the stairs and always near Y [10 years] and X [8 years] so I can hear conversations” the nature of which allegedly vary according to “…mum’s mood.” Z remains “…on my computer, I make myself feel safe this way…I don’t want to connect with my mother, but she still harasses me taking photos.” Z at his mother’s home described himself as “…out of my comfort zone, as being there “…is exhausting and I don’t want to have to do it, it is unfair, but I have to because I care about my brother and sister.”
112. Z acknowledged that some of his sense of not being safe with his mother arises “…from some past incidents in my head” and from current issues in which his mother “…is not reliable” which includes his report that “…mum says you can ask to go back to dad’s” or “…I can call and tell her if I don’t want to see her” or manage his own time with his mother if he has another event. “…So Y rang because we wanted to stay and watch dad’s cricket final and mum tells him it can’t happen because if we don’t come (to changeover) she will call the Police” (confirmed) and he is adamant that Y was advised the Police would be called and considered such a line of action would be a certainty given prior Police attendance at their father’s home at the behest of Ms Bryce.
[…]
118. Y [10 years], has presented as thoughtful previously and an observer of others and he appeared to have an edge of reserve in his presentation, although he was cooperative and polite in interview, he provided minimal information stating that he was frightened of the consequences of speaking out about his mother because “…mum talks about sending Mr D’s brothers…they are coming to the home and (she) threatens to kill dad and Ms G.” His sense of possible repercussions about what he might say in the current interview had been heighted as he had recently informed Mr C about some concerns about his mother, believing the conversation was confidential. Y was upset that these issues had then been discussed with his mother as without warning at a recent visit she had told him “… I am sorry you feel scared that I might have a knife at the door ready to kill you”. Y stated that he does not believe his mother is sorry, and that his fear of his mother remains uppermost in his mind “…because of her changing moods, she gets pretty angry” explaining that Ms Bryce “…is either over generous and give us everything or she is over angry.” Of note, Y stated that he had experienced some repercussions, from his mother, about material in earlier family reports, information that he had also shared with Mr C. It became apparent that Y holds an intense psychological and predictive fear about his mother’s behaviour that leaves him hypervigilant and which may reflect his experiences of her earlier behaviour and clouds his perceptions of current behaviour. This though does not preclude the intense triggering impact of any inappropriate conversation or behaviour by Ms Bryce currently, notably the consistently reported threats to harm Mr Bryce, which also comes to life in the form of the IVO.
119. Y explained when in his mother’s care “…she doesn’t let us do much and Mr D goes off by himself” and this creates anxiety for Y who wants to be supervised around his mother. He reiterates significant historical concerns for him, in relation to his mother, such as “…being left at the shops… seeing mum punch Z… and being sexually abused,” all of which are about significant psychological wounds of abandonment and violation. Y stated he does not talk about the latter often “…I don’t like to bring it up, but it comes to mind often just when I am sleepy,” and he knows he is not dreaming and his thoughts, at times, about this issue are persistent and upsetting, and he may seek his father out for comfort. Y spoke, as he had previously, about “…feeling butterflies” and “…starting to shake” going to see his mother or when he is upset, advising on a few occasions he has wet the bed when he is upset. Like Z, Y’s primal fear is psychological and arises “…from being worried about being separated from dad” and each time he spends with his mother, given his claims of her as inconsistent and mercurial, keeps him alert intensifies these concerns. Similar to Z he spoke positively about his life with his father and the experiences and activities he enjoys in that family constellation.
120. Given his awareness of Z’s resistance to spend time with his mother Y has thought about whether or not he would spend time with his mother without Z present. Y advised he would not do so “…because it is only safe if he is there because he sticks up for me…we need to be together, as a group the 3 of us to feel safe, because mum starts to question us.” Y explained that his mother’s questions are sometimes tricky as when she said to him “…I told you where I live now you tell me where you live” which leaves him feeling ill at ease and uncomfortable because to ensure his safety and that of his father, Ms G and siblings he doesn’t want his mother knowing where he resides. Ms Bryce also asks detailed questions about Y’s family members and this makes him feel uncomfortable especially questions about “…is any one at home when you are away,…are the dogs at home “ and this heightens Y’s anxiety that “…she (Ms Bryce) might come to the home. It is noted that Mr D is not considered to be a safety mechanism, as he “…sides with mum and he is not always there.”
121. Y also spoke about how he was flooded with fear arriving home to find “…Police on our doorstep which made him distressed because he knew it meant “…more problems from mum” and this sense of future difficulties is an idea fixed in his thoughts, that feeds his anxiety. This is exacerbated by Ms Bryce, who according to Y, “…tells us about the Court and says you are going to live with me soon” which is not what Y wants, he wants to remain with his father. It is a consideration that to manage these fears Y holds the position that “…I just don’t want to see her much” and asked how his mother would feel about this he stated “…she (Ms Bryce) might be a bit upset, I don’t really know and I am scared, and I don’t forgive her.” Y does think “…X feels better because she doesn’t get it” then making reference to the children’s historical experiences and the significance, for him, of Ms Bryce’s remarks that the children will live with their mother. Y continued “…although mum gives her everything, I don’t think she likes mum much.”
[…]
126. X stated that “…I don’t talk to mum so much” explaining that her mother “…lives in a new house with W” [the infant daughter of the mother and Mr D], and it was notable Mr D was not mentioned. X explained that “…mum is not so good…because she is weird, her moods change” and “….I don’t really want to see her because she has scary moods…she asks a lot of questions” and her conversation appeared age appropriate and authentic descriptions of her own experiences. The description of her relationship with her mother contrasts with that of her father who presents no apparent difficulties to her and she enjoys regular family activities such as going on bicycle rides with him. This contrasted with X’s account of her time at her mother’s home, speaking about her mother “…playing with her phone” and not engaged with the children and that “…I mostly play with my I-Pad.
127. X provided her version of the Nutella incident and was quite aroused reporting this event presented a significant danger to Z which her mother had minimized and denied, even claiming the sandwich was “…jam not Nutella.” In response to her concerns about Nutella remaining on surfaces X explained “…mum told me to clean up the mess” allegedly with the same cloth as had been used to clean W’s face and it was then offered “…to Z to clean his trousers.” X worried about leaving Nutella traces which would cause Z a problem and about her mother seeming not to care about this or Mr D’s response, which was to eat the sandwich and suggest the event was over, when in X’s mind it left lingering doubts that Z was not safe in this environment and the severity of his allergy overlooked (Ms Bryce denies this).
128. Asked about being reluctant to return home to her father, when visiting her mother, X became quite angry and said “…that’s a lie, mum lies… I am not that happy to see mum, and I won’t see her alone.”
[…]
131. [On the Family Consultant’s video conference with the children whilst they were at the mother’s home] The scene was domestic, but Y’s tone was terse, bordering on belligerent, and although polite he sounded irritated, and this was a notable departure from previous family interview experiences with Y as he had always been amiable and cooperative. In light of this, his sense of reserve was significant and would likely result in a sense of emotional exhaustion after spending time with their mother. Z, after having been polite and greeting the family consultant had swiftly retreated to his corner and would not communicate any further. X seemed comfortable although fixed in her position and she smiled but did not communicate greatly. This image of this family seemed ordinary, but there appears to be unspoken resentments and unresolved issues sitting like some miasma that restricts the connectedness between family members.
132. Even in the limited observation period a sense of the children’s restraint was apparent and that the children would not permit themselves to be drawn into conversation and there seemed to be no likelihood of the children exploring their feelings about being in this space. The children maintained their “…islands” and not encouraging connections, and no child acknowledged or interacted with W and whilst Ms Bryce tried to initiate conversations, these were either minimally responded to or floated away. When the subject of what Ms Bryce was cooking for their evening meal was discussed she suggested the boys would make gnocchi for dinner, to go with the prepared lamb ragu. There was a chorus of negativity in response and the sense of the children as sullen and resentful in relation to spending time with their mother was strong.
[…]
134. That there was a breach of trust between the adults in this matter is inherent in the nature of litigation, but the sense of impending danger for the children, as they describe, continues to be reinforced by the imposition of an unsubstantiated IVO on Mr Bryce, the staged scene (car incident) claimed to have been a breach of the IVO and the Nutella incident. The children witness all these events now, as thinking individuals, and collate these with their own direct experiences and their psychological responses reflect the impact of cumulative harm. Sadly, Ms Bryce has not considered the impact of her behaviour on any party in this matter and remains solely focused on her needs. Awareness is also directed to the opportunity that Ms Bryce’s behaviours afford for the children to become increasingly embroiled in the litigation. This has led to the children becoming increasingly fearful about their own welfare and concerned about their father, their fears augmented by their claims their mother has threatened physical harm to Ms G and their father.
[…]
136. …It comes to mind that Ms Bryce’s insight into her children is so limited and her attitude to other views so resistant she cannot accept that behaviours, such as failing to inform or invite the children to her wedding, cemented their sense of abandonment from and clarified their insignificance to, their mother. It is of note that Ms Bryce’s retreat place is that information was not shared because the event may be spoilt, but for whom?
137.These issues are not simply overcome by more time, as asserted by Ms Bryce, and currently the impact of spending time with their mother is becoming paradoxical.
[…]
141. Over the life of this matter the children have consistently reported their fear of their mother advising that their mother minimizes or dismisses their concerns, she does not respect their level of insecurity and appears cavalier about the need for Court Ordered supervision. The children themselves, now appear to perceive their mother as the agent likely to operationalise their most primal fear, that of being removed from their father’s care. Just as Ms Bryce holds a fixed view that all difficulties arise as a consequence of Mr Bryce’s actions, so too are the children, now self-protective and their fixed idea is that mother is scary and an enduring danger to their sense of family and identity. There can be no improvement in matters until these issues are addressed. Not only does Ms Bryce appear to have persistently misperceived her role in this matter, as one of entitlement “…to be mother”, she has possibly unwittingly, agitated events.
142. Ms Bryce asserted she is now not the same person as she was at the time of separation but her manner of communicating with the children remains problematic and unaddressed by Ms Bryce, who considers her role as a maternal health nurse has provided her with skills to talk to children. The evidence, however, is that she does not have the requisite skills to speak with children who are hypervigilant around her, and fearful of what she might do or say, she appears to lack an empathic connection with the children, and is not attuned or prepared to accept how they think about things. Because Ms Bryce has not manifestly changed her response style to the children, she continues to arouse their distress and they appear to have become habituated to their mother, as a source of their fear, and she remains fixed for them as an unpredictable source of danger. Ms Bryce imposes adult perceptions on events, but she also needs to become reflective and assess complex matters through the lens of the children and consider what they would construe from her conduct.
[…]
144. It is conceptualised here that in relation to their mother, the children are emotionally stuck at the ages in which their fear was felt most intensely (around approximately 8 years, 4.5 years and 2 years) at the time of separation. Remediation cannot arise when the children are repeatedly exposed to the source of their fear and can only commence in the context of a guided therapeutic situation when the children can be re-nurtured and mother and children can be assisted to speak a language of care, not threat. It is to be noted that as this situation has continued, to be unaddressed by Ms Bryce, the children themselves have strengthened their views, nurtured their own hostility and resentment towards her and now consider their mother as provocative, as the source of difficulties, not opportunities, the original source of their fear creating fear and tribulation for their father.
[…]
148. This litigation has arisen against a background of abuse, cumulative harm and the children’s unaddressed fears about reconnecting with their mother. It continues for the children in a climate of fear, and uncertainty. For the welfare of the children and the children’s future relationship with their mother this family needs to rebuild, refocus and tentatively as a family constellation take the necessary steps to rebuild trust without additional agitation by litigation.
Ms B’s final recommendation, in the context of the final defended hearing, is that:
·the children remain living with the father;
·that the father have sole parental responsibility;
·“no orders are recommended for the children to spend time with their mother, but this is to be managed and directed by the professional managing the family reunification and repair process”;
·the children are to continue to communicate with the mother once per week and on relevant birthdays and special days.
I take the last recommendation to be communication which is not face to face but, rather, by telephone or by video conference. Ms B further recommends that there be a prohibition further proceedings for 18 months. There is no recommendation as to what (if anything) should occur on the release of the report or as a consequence of the report. This is not a criticism. Indeed, I rarely read a s 62G(2) report that does contain recommendations for this time.
The mother and her solicitors and the father did have an opportunity to read the report. When we resumed, Ms Mimmo for the wife was primarily concerned to establish her client’s ability to return the matter to court early next week and in advance of the next weekend. There was discussion around Mr C’s therapeutic involvement, him being provided with the report as soon as possible and what role he could play in any application for a reinstatement of time spent arrangements.
As indicated, I have no evidence from Mr C. Ms B’s report is untested by cross-examination.
I was impelled to list this matter for urgent intervention today for a number of reasons consequent upon the report being published. First, the fear and trepidation, preoccupation, hypervigilance of the children and, frankly, their misery at seeing their mother or associated with her. I acknowledge that what the children said to the Family Consultant and her record of it, will be the subject of scrutiny at the final hearing. As of today, however, I have a report which is apparently well composed, internally consistent and which leaves me with very serious concerns for the state of mind of each child, particularly the boys if face to face time proceeds this weekend.
I am concerned about the children’s feelings of helplessness. They know what they have stated to Ms B and to Mr C, in this third family report. It would be most unfortunate if the children were required by the mother or the father to justify what they have related. To put them in a position where the children could be challenged by the mother about the contents of the report would be to ‘hang out to dry’, to leave them unprotected in circumstances which they interpret are dangerous. Not only is that likely to damage their perception of professionals in authority but will almost certainly leave them unwilling to again confide in any such authority figure. They would be entitled to feel unprotected and exploited.
In the minds of adults and litigation professionals, the views of the children will be examined in detail at the final hearing. However, I cannot ignore the fact that the final hearing is months away, in November 2020. The family does not go into a state of suspended animation until November 2020. The children have to interact with their parents now.
Ideally, I could caution the parents not to discuss the contents of the report with the children. However, I have no confidence that would work. It would be naive in the extreme to assume that a parent who has not previously exercised self-control, or an ability to put the interests of a child ahead of his or her own interests, will or could start to do so in response to the release of a family report and with a final hearing on the horizon. Social science evidence adduced in so many cases which come before me is to the effect that changing human behaviour is very hard and particularly in a relationship as intimate as that of a parent and child. It requires a parent to disrupt their customary habits whilst simultaneously adopting new, probably unfamiliar, habits and ways. The child must be open to appreciate the change. Without further evidence, I do not have confidence that the mother has the personal resources to put to one side the stinging observations of the children make of her, as set out in the report, in favour of making them feel emotionally safe.
Most long running parenting disputes come to this Court on the basis that they require many more days than the Federal Circuit Court can offer and involve high parental conflict. In high conflict cases, parents do not, together or separately, have capacity to protect the children from inter-parental conflict. The conflict between parents is entrenched behaviour. The conflict is the means by which the parents communicate. Paradoxically, in extreme cases such as this case, the litigation process may be a means by which a parent can stay in touch with a child and demonstrate that they care for the child and aspire to a relationship with the child. We are mandated to make orders which are in the best interests of children but in long running sagas, such as this case, the best a court might do is to provide for the least worst result and an end to that stanza of the proceedings.
To make myself abundantly clear, I am not suspending the Sunday time between the mother and the children because I am satisfied that the mother will kill Y (as he says he fears) or that the family of the children’s stepfather or the stepfather’s friends will kill the father or his partner. It is because the children have made statements to the Family Consultant that they are fearful of the mother in terms of their own safety, or the safety of their siblings, or the safety of their father and their stepmother. My grave concern is for the impact on the children of knowing that their mother and stepfather know what they have said, variously to Mr C to Ms B, and that the mother is likely to be unhappy with Ms B’s recommendations. If the family report writer has accurately described the children’s views about spending time with the mother, I am satisfied that face to face time this Sunday would be an intolerable situation for the children. That is, a situation which they cannot reasonably be expected to tolerate
The decision that I have made is taken without making any findings of fact about the rights and wrongs of the parties’ allegation against one another. It is based on my wider consideration of the need to protect the children from emotional and psychological harm. If I am wrong, the suspension of face to face time might endure for only a week or until such time as someone brings an application about interim time. That application would be supported by evidence and argument which address what I perceive to be the children’s uncomfortable predicament, a predicament in which they find themselves, in no small part, because of how parenting cases are prepared for trial.
The Independent Children’s Lawyer has agreed to inform the children of the outcome of this hearing this afternoon and to convey to the children that it was the decision of the Judge to suspend the time they have with their mother, and that their mother understands that it was not a decision taken by the children.
The Independent Children’s Lawyer is to provide Ms B’s family report to Mr C as quickly as possible, as well as these reasons for decision when they are published. It is for each party to run their own case. However, my preliminary view is that evidence from Mr C which touches on the following matters is likely to be of assistance:
·What has the reaction of each child been to missing out on time with the mother?
·Do the children (or any of them) express a positive desire to spend face to face time with the mother?
·Do the children (or any of them) express fear, concern or negative feelings about spending face to face time with the mother? If so, do the negative feelings appear authentic and based on their individual experiences of treatment they have received or what they have observed?
·Would the children be discommoded by an interruption in time spent arrangements until the final decision? Absent a consensual resolution, a final decision will be some time after the final hearing.
·Would offering the children respite from face to face time with the mother in the immediate to short term, impact negatively or positively on their relationship with the mother?
·Does any negative impact of suspending time outweigh the benefit (if any) of suspending time?
·Without wishing to make the children feel responsible for the outcome, is there anything that would make spending face to face time with the mother tolerable or more tolerable?
These are points and suggestions, not a script for interrogation. Mr C is a practitioner with considerable experience and expertise in working with families and children. I have every confidence that he will know how best to bring forward the authentic experience and views of the children and to offer expert opinion relevant to the immediate future.
On 1 May 2020 I ordered, inter alia:
12. The family report deal with the following matters:-
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;
Ms B followed the Order.
Family Consultants are the Courts’ experts in childhood development and parenting. Their task is extremely difficult and, as this case demonstrates to me, that reporting process may require more support than the family law system currently provides. I have no doubt that Family Consultant’s, like Ms B, give careful consideration to what observations they include and exclude from their s 62G(2) reports. That process necessarily includes assessing whether a child will suffer an adverse reaction from a parent who is likely to be uncomprehending or unaccepting of the information (which may be the child’s views) and how it is relevant to a best interests outcome. This is a fine judgment call.
If the Family Consultant omits damaging observations from the written report, those pertinent observations may never come to light because there is no guarantee that the Family Consultant will be cross examined or able to give supplementary evidence orally before a judge. Most cases resolve without evidence and in no small part because family reports are frequently used as settlement tools. On the other hand, a report writer including views of children in a family report which are damaging to one party can lead to the situation we now have, or to something even worse, having regard to the extreme pressure a party, who perceives that a child’s view may be given undue weight, may feel to impugn or bring about an alteration the child’s view.
There is a fine line between having regard to the views of a child and exploiting the child’s view to support one parent’s position over the other parent’s position. There is a fine distinction between allowing the child to participate in the decision making process and leaving the child with a sense of responsibility for the disappointment one parent may feel with an outcome. There might appear to be only a small difference between failing to recognise a child as an independent person to whom respect must be accorded in proceedings and trying to protect a child by excluding him or her from participation in proceedings – unless, of course, you are the child in which case these distinctions are pretty obvious.
Seemingly, family reports, under s 62G(2) and otherwise, are frequently a source of information around which litigants fashion their case. Regard should be had to the period during which the child will have to deal with the consequences of any family report having been released to the parents. That is, the proximity of the assessment interviews and the report being released relative to the date of the final hearing. In this case the hearing is about three months away – a good lead up time for the parents to use to prepare their respective cases but potentially uncomfortable for the children.
Ms B generally describes the children as three vulnerable children who appear to be suffering, not just by virtue of the intractable and long-term high parental conflict, but because of the proceedings in this Court and the assessment processes. Children deserve the full consideration of the Court at all times during the litigation process, and this includes timely intervention when the Court perceives that there is an immediate risk of harm to the children pending a final hearing, at which all relevant evidence will be adumbrated. My intervention may be construed as running contrary to the adversarial[1] nature of parenting proceedings in which, as far as possible, a level playing field between parties is usually preserved until all of evidence can be tested and the Court’s exercise of its discretion can be informed by reliable fact finding. Another reason that the Court frequently strains to preserve a level playing field between the parties is so that the pendulum does not have to swing too far in order to implement of any final determination.
[1] These proceedings are less adversarial trial proceedings but adversarial proceedings nonetheless.
Stability is usually considered to be good for children, but not always. The Court is required to consider the likely effect of any changes in the children’s circumstances including separation of the children from his or her parents or from other people. In reaching my decision today, I have taken into account the impact on the children of not seeing the mother this weekend. I have not done so to the extent that I could if I had the benefit of expert evidence from, say, Mr C who I understand, is in a position to discuss the children’s predicament with the children under cover of an agreement about what will and will not be communicated to the parents and the Court. “Reportable family therapy” is somewhat of a contradiction if the children are reticent to say how they feel because they may be held accountable by one parent or another.
I am satisfied that allowing face to face time to take place, without further judicial consideration or unanimous agreement between the parties (including the Independent Children's Lawyer), would carry with it an unacceptably high risk of endangering the emotional wellbeing of the children in this particular case. In making this decision, the rights of the parents to be accorded procedural fairness in relation to imminent spend time arrangements have come second to the best interests of the children, as I appreciate them to be in the immediate future.
I will endeavour to be responsive to any party’s request for a speedy interim hearing. I will enquire whether Ms B is available to give any evidence. I anticipate that one or other party will rely on evidence from Mr C. Mr C’s therapy is not the subject of any confidentiality order. So, in parochial terms, it is “reportable.” I do not wish to bind the parties to seek a written report from Mr C. If Mr C is prepared to give a report or give evidence orally, I am prepared to take his evidence orally at a convenient time.
It is important to remember that Z, Y and X are the subject of the proceedings which must be conducted and concluded with their best interests being the paramount consideration. They are not objects of litigation or pieces on a chess board. They are individuals with their own emotional and psychological lives quite distinct from those of their parents. Indeed developmentally, Z and Y are of ages when individuation from their parents is taking hold or is to be encouraged.
I hold to the view previously expressed by me in the anonymised decision of Harvey & Harvey [2018] FamCA 516, that evidence of children’s views is not simply a matter to be used at the convenience of the parents and to support their respective cases. At paragraph 11 and 12 of that decision of Harvey’s case, I said:-
11.An important aspect of the family report will be to record and assess the views of each child. The children should know that their individual and collective views will be considered and not lost in the mire of their parents’ conflict. This includes taking account of their views and opinions in a dynamic sense, not only when the views conveniently support a party’s proposal or to just tick off one of the numerous additional considerations which we are required to take into account when making a parenting order.
12.As Lady Hale (as she then was) said the following in an early international case, Re D (A Child):-
[57] …As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants. […]But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.
Parenting proceedings have a developmental impact on children of certain ages, such as Z, Y and X. Children model behaviour on what they observe adults do, most potently their parents, and they interpret authority as they experience it. How we treat a child in family law litigation may well shape a child’s behaviour and values in later life and their attitude to and trust of authority, including at school, going forward.
The requirement to have regard to the views of the children is the first of the additional considerations set out in section 60CC(3) of the Act, being that the Court must determine what is in a child’s best interests by considering:
Any views expressed by the child, and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give the children’s views.
The requirement to focus on the child’s views, as opposed to wishes, means that the Court has regard to the child’s perceptions and inclinations without requiring the Family Consultant or Independent Children's Lawyer to make specific enquiries or elicit the child’s ultimate preference or wish. This is consistent with the reference in the Revised Explanatory Memorandum[2] that consideration of the children’s views will:-
Allow for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.[3]
However, consideration of a child’s views does not exclude consideration of a child’s wishes. If the amendment was intended to shield the child from a sense of responsibility it did not put any scaffolding or safeguards in place to support that goal. Nomenclature is not sufficient.
[2] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth).
[3] Ibid [56].
The Court’s responsibility to have regard to the views of the child is an obligation of Australia internationally. Section 60B(4) provides that an additional object in parenting proceedings is to give effect to the Convention on the Rights of the Child[4] (“the Convention”) to which Australia became a signatory on 22 August 1990 and which entered into force for Australia on 2 September 1990. The four core principles of the Convention are:
·Non-discrimination;
·Devotion to the best interest of the child;
·The right to life, survival and the child’s full development — physically, spiritually, morally and socially;
·Respect for the views of the child; that children have a right to have their say in decisions which affect them and to have their opinions taken into account and have a right to participate fully in family, cultural and social life.
[4] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 44 which entered into force for Australia on 2 September 1990.
In particular, the Convention provides:
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Our family courts are informed of views expressed by a child by having regard to a report given to the Court by a Family Consultant[5] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer[6], and through the evidence of the parents and their witnesses. A Family Consultant is an expert witness. The role of a Family Consultant is defined under s 11A to s 11F of the Act. The work of Family Consultants is organised through the Courts’ Child Dispute Services and is fully funded by the family courts. Family Consultants are either:
i)direct employees of the family courts, as was Ms B for the preparation of the family report in this matter, or
ii)private practitioners who have applied and been deemed suitable by Child Dispute Services to undertake the duties of a Family Consultant, and are appointed pursuant to Regulation 7 of the Family Law Regulations 1984. They are paid by the family courts on a fee-for-service basis. Regulation 7 Family Consultants may also prepare private reports but, when they do so, they are not performing the role of a Family Consultant and therefore do not come under the governance of Child Dispute Services.
[5] Family Law Act 1975 (Cth) ss 60CD(2)(a), 62G(2) and 62G(3A), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[6] Family Law Act 1975 (Cth) ss 60CD(2)(b), 62G(2) and 68LA(5)(b), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
Family Consultants prepare reports pursuant to orders made under s 62G(2) of the Act or assessments under s11F of the Act. Family reports are also written by private practitioners. A private family report writer is an appropriately qualified individual who is privately commissioned and paid for by the parties as a single expert witness to assess the family, write a family report give evidence and has no connection with Child Dispute Services. Private family report writers are sometimes retained to conduct for family therapy, presumably as a result of the legal practitioners being familiar with the standard of the expert’s work and the expert’s familiarity with the particular pressures faced by families involved parenting litigation including cases of high parental conflict. Mr C is a private family report writer who has been retained by this family to provide family therapy.
Once a child's views are ascertained, the Court is required to consider the views in concert with the primary considerations and such of the other additional considerations relevant to the child's welfare. This process is described by the Full Court in R & R: Children’s Wishes [2000] FamCA 43 (albeit in relation to children’s wishes) as follows:-
[42]… the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
[54]… There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
Whilst receipt of the children’s views is uncontroversial, our elaborate legislative pathway for children’s cases falls short of providing measures by which it is safe for children to express those views. At the same time, lack of resources preclude the family courts from providing the necessary scaffolding around children. Of course, this does not afflict all parenting cases to the same degree. In less complex families, parents are enlightened by and grateful to hear what children say and take the opportunity to improve parent/child relationships by taking the child’s views into account. However, not many parenting cases which come before this Court are of the less complex variety. We deal with the toxic high parental conflict cases, like this case. If a child does not feel safe having expressed his or her views to a family report writer, can it be said that the child is accorded his or her Article 12 rights to express his or her views freely? Particularly when children are often subjected to successive family report assessments as Z, Y and X have been over the last six years.
Various considerations, including the views of a child, must inform the exercise of our discretion in parenting matters. It follows that evidence must be directed to those considerations. However, we must deal with the evidence responsibly, both as to gathering it and publishing it. Hearing the voice of a child must be a process which is emotionally safe for children and does not leave them feeling exposed or vulnerable.
I certify that the preceding fourty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 31 July 2020.
Associate:
Date: 10 August 2020
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