Carey and Carey - [2012] FMCAfam 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAREY & CAREY

[2012] FMCAfam 554

FAMILY LAW – Application by father to spend time with daughter – no time spent since violent incident in 2007 – whether father’s case has no reasonable prospects of success – orders made as sought by mother.

Family Law Act 1975, ss.60B, 60CA
Federal Magistrate Court Rules 2001, s.13.1A
Federal Magistrates Act 1999, s.17A

Applicant:

MS CAREY

Respondent:

MR CAREY

File Number:

MLC 3765 of 2007

Judgment of:

Burchardt FM

Hearing date:

17 April 2012

Date of Last Submission:

17 April 2012

Delivered at:

Melbourne

Delivered on:

17 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr D. Crabtree

Solicitors for the Applicant:

Comito & Associates

The Respondent:

In person

THE COURT ORDERS THAT:

All previous parenting orders specifically the order of the Family Court of Australia made 9 September 2005 in proceeding no MLF 1891 of 2001 be discharged.
The mother have sole parental responsibility for the child X born (omitted) 1997 (“the child”).
The child live with the mother.
The child spend time and communicate with the father as agreed between the parties and in accordance with X’s wishes.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 3765 of 2007

MS CAREY

Applicant

And

MR CAREY

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The mother seeks orders in the form indicated by a set of minutes that have been handed to the Court. She seeks that she have sole parental responsibility for the child X born on (omitted) 1997 and, therefore, now 14 years old. She seeks that X spend time and communicate with the father as agreed between the parties and in accordance with X’s wishes. The father seeks that a process of counselling be set in place so that he will, in due course, be able to have some contact. I will refer to the parties’ formal pleadings in due course.
Relevant background history which is not controversial includes the following. In 2005, Guest J in the Family Court made orders that the children, because the elder child Y, now 19, was then the subject of the Court’s jurisdiction, live with the father. There had been alienation issues raised, and it seems clear from the materials as a whole that a report by Mr P supported the outcome at which Guest J arrived. On 2 February of this year, the mother filed the extant application that has brought the matter before Court. She seeks to set aside the orders made by Guest J and seeks orders essentially in the form contained in the minutes that have now been proposed.
The mother’s affidavit in support, the first affidavit she filed on

2 February 2012, raises a number of matters. It is asserted that both children have lived with the mother since December 2008. It is asserted that there has been no time spent or been any form of communication between the children and the father since a violent incident in April 2007. It is asserted that between September 2005 and April 2007 the children lived with the father and his then partner. The affidavit raises allegations of mistreatment of the children while in the father’s care, including family violence to both children within the wider definition of family violence in the Family Law Act 1975

(“the Act”).
Exhibit SC7 to that first affidavit is a report of Ms R, psychologist, dated 20 April 2007. It records that both children were then adamant in their desire not to return to the father’s household. Both children purported to confirm verbal abuse by the father, together with threats with a knife. I emphasise that I am extracting only those aspects of the affidavit and the materials that are of particular significance. Ms R’s report recommended that the children stay with the maternal grandmother.
The incident in April 2007 is detailed in the mother’s affidavit. Exhibit SC7 is the judgment of Duggan J in the County Court given on 27 February 2008. It followed a plea of guilty. It emerged that on a particular day the father had tried to drag X from the maternal grandmother. On the following day he tried to drag X down a driveway and she screamed for help. The father picked up a piece of timber with which he fractured the maternal grandfather’s ribs and then kicked him hard in what Duggan J described as “the lower area”. Duggan J, notwithstanding a measure of sympathy for the father, described the conduct as inexcusable and jailed him for 12 months, of which six were suspended.
The Department of Human Services (“DHS”) took out a protection application and as a result, the children lived with the maternal grandparents from April 2007 until December 2008 when they were returned to the mother. As I have indicated, there has been no time spent with the father or contact of any sort. The affidavit asserts that X still has strong views about not spending any time with her father.
Exhibit SC10 is a letter from Ms W, clinical psychologist, dated 19 January 2012. It recommends extending, in effect, a formerly-existing intervention order. The terms of the letter are worthy of note. This letter, dated 19 January 2012, relevantly reads:
“X has recently concluded a period of counselling with a focus on addressing symptoms of anxiety and post-traumatic stress in response to her past exposure to neglect and violence while in the care of her father. In sessions, X presented with symptoms of anxiety and worry about any future contact with her father, whom she perceived as a serious threat to her safety and the safety of her family. The current intervention order has supported X in feeling protected from any future contact with her father and it is the writer’s recommendation that the intervention order be renewed for as long as possible in order to continue to provide X with this sense of safety and security.”
On 15 March 2012, the matter came before the Court and I made orders, inter alia, that the father file a response and affidavit on or before 5 April 2012. The father did not express any difficulties with that timetable at the time. He did not comply with it and filed, by leave of the Court today, his response and affidavit. The mother had filed, in the meantime, an affidavit in anticipation of the late filing of material by the father, and I will return to that affidavit.
The father’s response was filed on 17 April 2012. It seeks equal shared parental responsibility. It seeks that X have regular and ongoing contact with the father and both her extended families, that is to say, the extended families of the father and the mother. Interim orders seek counselling and/or supervised contact.
The father’s affidavit in support was filed on 17 April 2012. It refers to the history leading up to Guest J’s judgment and refers to the reports of Mr P, apparently in 2004 to 2005, which supported a conclusion of alienation of the children on the part of the mother. The affidavit contains complaints about the mother’s alleged drinking and erratic behaviour. It also gives an account of the April 2007 incident but that account is simply not wholly consistent with Duggan J’s judgment.
I note that the father says he was diagnosed with bipolar disorder after his release from jail and he annexes medical evidence that, in my view, establishes that that is the case. He seeks contact at least once with X, and I will refer to paragraph 17 of his affidavit which relevantly is in the following terms:
“I have since been treated for the bipolar disorder and nowadays I am a much calmer person than I was even when the children were living with me. As such I would like to have contact, at least once, with my daughters so that they may see me as the person I am today. As it stands the last time I had any contact with them was when I hurt their grandfather, which I deeply regret. I have been unable to convey this regret to them, or show my love for them in any way ever since. I know I let them down and I would greatly appreciate the opportunity at least to express this to them, and perhaps to explain to them that I am now very different to when they last saw me, due to the treatment I have received. I recently consented to an extension of intervention orders against me on behalf of the children for another two years, on the basis that they “are still fearful of me” due to the events that occurred in April 2007. I would be ever so grateful to have the opportunity to allay their fears in this regard, and to show them they have nothing to fear from me. These are my primary motivations for seeking contact with my daughters at this time.”
I note that the affidavit also goes on to deny allegations made by the mother about the children’s conditions when they were in his care. The mother’s second affidavit was filed on 12 April 2012. Amongst other things, it annexes as exhibit SC12 a DHS report of 27 April 2007. That report assessed both children as being at significant risk of harm, and assessed both the father and his then partner and the mother as unsuitable carers.
Exhibit SC13 is a decision of Magistrate Chambers given on 28 May 2008 which, it should be noted, followed a strongly contested hearing over a number of days. The mother did not oppose a CTSO order but the father’s then partner, Ms H, did. If one goes to paragraph 24 of that decision, the Magistrate refers to the report of Mr P about the effects of the events upon the children, and notes that X was frightened of the father and Ms H and had no wish to see or talk to them.
At paragraph [33] the judgment says this:
“In his CCC report dated 14 March, 2008 Mr P provides a frank assessment of the family dynamics. He notes that the “history of this family has been eventful in the extreme.”

Mr P’s earlier reports detail this history and express his earlier concerns that the children had become alienated from their father and the paternal side of the family. However,

Mr P, in his CCC report, clearly assesses the events of April 2007 as a watershed for the family, making his earlier assessments “somewhat academic”. At page 18 of his report

Mr P states:
X and Y’s relationship with their family in some ways has been tenuous at best. They have not been able to integrate a sense of family and were not able to maintain a relationship with both parents and extended family over time, with this process having been acted out in the extreme. The events and assault in April 2007 was the breaking point in what has been an extremely brittle situation. Mr Carey’s actions have perpetrated irreparable damage to his relationship with his children, both of whom now refuse any contact with him whatsoever.”
There was an assessment by the Court of the mother, bearing in mind the criticisms earlier expressed in the materials about her own difficulties, and at paragraph 42 the Court said this:
“Accordingly, there is nothing in the evidence as a whole to suggest that Ms Carey suffers from a psychiatric condition. Rather, in response to quite specific and extreme stress in the past, she has suffered from anxiety and depression, consequently affecting her judgment and leading to erratic behaviour, alcohol abuse and poor decision making.”
What Ms H sought is dealt with at paragraphs 58 to 61 of the report, and I note and accept the submission by counsel for the mother today that what the father now seeks is essentially exactly what

Ms H sought back then. At paragraphs 58 - 61, the Court said this:
“Ms H further seeks an order for the children to receive counselling with the specific aim of reconciling them with the father and step-mother. A related condition is sought that the father and step-mother be allowed to meet with the counsellors to provide them with any relevant information.
Clearly, such conditions are aimed at promoting a return to access between the children and their father and step-mother. In my view, such conditions ignore what Mr P refers to as the “reality” of the situation since the watershed events of April, 2007. As with Mr P, I have sympathy for the position the paternal family found itself in up until April 2007 with the children clearly alienated from them. However, I agree with

Mr P that that situation is now largely academic. In the words of Mr P:
I think it is very likely that Y will not pursue any relationship with her father... X remains ambivalent, and I think if given an opportunity at some point in the future will renew contact with Mr Carey. But to force either of the girls to see him now, given how angry they are with him, is likely to further reduce the prognosis for any kind of reconciliation in the future.”
The Court went on:
“In my view, it would not be in the best interests of the children that the Court by any order require counselling “aimed” at reconciliation with the father. I agree with the view expressed by Mr P and Ms P that to force the issue with the girls is potentially counter productive. It is also not appropriate for this Court to dictate to health professionals, such as psychologists, the aims of psychological counselling and treatment. That is a matter best left to those professionals.
However, in line with Mr P’s assessment and with X’s instructions, I consider it appropriate that the access condition provide that “access will only occur at the request of the young person and on the recommendation of her counsellor.”
The mother’s second affidavit shows that an intervention order was made by consent for two years on 22 March 2012. That itself followed exhibit SC9 to the earlier affidavit, which is a letter from the DHS dated 12 December 2011, which effectively recommended that a further intervention order be taken out. It should be noted that the father, as he has deposed – and it is to his credit – did not oppose the making of that order. The mother’s affidavit goes on to detail the effects of this Court proceeding upon X, and at paragraphs 12 and 14 to 16, the following was said:
“Since this matter has returned to Court, X has become extremely worried and apprehensive. As a result, X has commenced recently meeting with her school counsellor,

Ms S. Now produced and shown to me, marked “SC17”, is a true and correct copy of letter from Ms S, dated 6 April 2012.
X has categorically stated she does not want any contact with the Respondent. Both her and Y have stated this since the incident in April 2007 and no contact has ensued.
I am worried about the risk to X’s physical and emotional well-being should she be forced to spend any time with the Respondent at this time.
Should X indicate a willingness to spend time with the Respondent in the future, I would ensure that the same occurs with the support of her extended family, a counsellor and myself, in accordance with her wishes.”
Exhibit SC17 is, indeed, the report from the counsellor. I will read it out. It is dated 6 April 2012. It is addressed:
“To whom it may concern, Re X, date of birth (omitted) 1997. I have been asked to write this letter with regard to the pending court hearing that will determine where X lives and whether she will have contact with her father.
I commenced seeing X for counselling on 19 March 2012, and have seen her once since then. She presented as very anxious and reported that she had problems sleeping and concentrating at school. X said that she was extremely worried that the Court would force her to see her father and that she wants nothing to do with him. She said she is very fearful of her father, especially since an incident of violence which occurred at her grandparents’ home five years ago.
X also has told me that she is fearful that her father may turn up at their home and threaten or harm her and/or her sister and mother, in spite of current intervention orders against him. Each time there is a court hearing, all these fears are magnified and it causes X even more distress. She cannot sleep, concentrate in class, or at home, on her school work.
When people have experienced trauma, such as the violence witnessed by X, they tend to operate at a level of hyper vigilance and this causes high anxiety levels. X has described feeling like she is “always on alert”, this has affected her sleep patterns, as she has trouble getting to sleep and wakes frequently during the night. X reports always feeling tired, and inadequate sleep is known to be detrimental to one’s mental and physical health and one’s learning, due to an inability to concentrate and function at optimal level.
X has no desire to see her father, and any attempts to force this upon her would be extremely detrimental to her wellbeing. As a mature minor, I believe X has an ability to understand the consequences of her decision and would be better off if left to contact her father when and if she is ready to do so.”
I should note that Ms S does not detail any particular professional qualifications. She describes herself as a school counsellor/social worker. I would infer that she would, at the very least, have a degree of some sort that would have some relevance to the work she does.
The mother’s counsel submits that it would be counter-productive to make the orders that the father seeks. In his oral submissions today, the father says he is very sorry for what occurred in 2007 but would nonetheless like some contact with X.
So far as matters of procedure are concerned, it should be noted that I offered the father the opportunity of consulting with the duty solicitor, which he declined. I also explained to him, as is clearly the case, that he is in default within the meaning of division 13.1A of this Court’s rules, and I explained that that meant I would be in a position, should I be so minded, to make summary orders against his interests. I also explained that the Court has a power to dismiss matters summarily under the Federal Magistrates Act 1999, although I did not go through s.17A of the Act in terms. The mother, indeed, seeks summary disposition of the matter.
The father did not oppose that in this sense. When I explained to him the prospects of cross-examining the various witnesses, for example, X’s counsellor, and so on, he said that he preferred “not to go that way”. Accordingly, I have proceeded to deal with the matter on the basis of the materials as they stand. Notwithstanding the objects in s.60B of the Act, it needs to be remembered that s.60CA makes the child’s best interests the paramount consideration in considering whether or not to make a parenting order.
Here, there was a violent incident in 2007 and the children were traumatised. Secondly, the orders of Guest J have been effectively overturned by the actions of the DHS and the Children’s Court, and for what was clearly good reason. Third, the children have been living with the mother since December 2008. Fourth, they have spent no time of any sort and had no contact with the father since April 2007, and I note that it is not his application that is before the Court.
Next, X is still afraid of the father. An intervention order has been taken out on the advice of DHS as recently as March 2012 for two years. I repeat it is to his credit that the father did not oppose that application. From these matters it is quite clear that X would be adversely affected if the matter is not brought to a speedy conclusion. The counsellor’s report, exhibit SC17, as recently as April 2012 is quite clear.
In my view, the father’s case has no reasonable prospects of success. Section 17A subsection (1) of the Federal Magistrates Act reads in the following terms:
“The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.”
By subsection (3), it is noted that:
“For the purposes of this section, a defence of a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success.”

Here, in my view, the father’s case has no reasonable prospects of success. I could dismiss the matter, in any event, under division 13.1A of the Court’s Rules, as the father is in default in any event. In my view, that is not appropriate.
I do have, like I think all the judicial officers who have dealt with the matter, some measure of sympathy for the father. His demeanour in Court has been entirely appropriate and respectful and dignified. Now that this bipolar is being treated, he may very well be a substantially different person to who he was before. But the Court is primarily concerned with X’s wellbeing, and unfortunately the events of 2007 simply cannot be washed away, no matter how sorry he is.
The reality is that it is quite clear that the daughter has not forgotten at all those events. Whether that has been because the mother has continued a process of alienation, which would doubtless be the father’s case, is in my view neither here nor there in these circumstances. The reality is that if this matter continues on the materials as they stand, the father has no reasonable prospects of success, but by a converse process of consideration, harm will unquestionably be imposed upon his daughter. In my view, that is entirely inappropriate.
If X is to spend time with the father, it will happen only when she herself is ready for it and initiates it. I will make orders in the form proposed by the mother.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 17 April 2012