Collery and Collery

[2012] FamCA 60

FAMILY COURT OF AUSTRALIA

COLLERY & COLLERY [2012] FamCA 60

FAMILY LAW – CHILDREN – where the proceedings concerning the parties’ two daughters have extended over three years – where the children are aged 17 and 11 –where there has been significant parental conflict – where both children have lived primarily with their mother since their parents’ separation – where both children have expressed a desire to spend no time with their father – where a number of reports by various professionals highlight the deleterious impact the mother’s view of the father is having on the children’s mental health – where the father has filed a Notice of Discontinuance – consideration of what orders are in the children’s best interests – where the presumption of equal shared parental responsibility is rebutted – where the children are to live with their mother – where orders made to enable the children to contact their father, should they so wish.

Family Law Act 1975 (Cth)

U v U (2002) 211 CLR 238

APPLICANT: Mr Collery

RESPONDENT: Ms Collery

INDEPENDENT CHILDREN’S LAWYER: Mr Emerson

FILE NUMBER: BRC 3610 of 2009

DATE DELIVERED: 16 February 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 16 February 2012

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Mr Emerson of Emerson Family Law

Orders

IT IS ORDERED THAT

1. All previous orders be discharged.

2. It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of the children T born … November 1994 and Z born … April 2000 (“the children”).

3. There be no order as to parental responsibility.

4. The children live with the mother.

5. The children shall spend time and communicate with their father in accordance with their wishes.

6. The mother shall permit the children to email or telephone their father should they desire to do so at any time.

IT IS FURTHER ORDERED THAT

1. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. The Independent Children’s Lawyer is discharged.

4. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:   BRC3610 of 2009

Mr Collery

Applicant

And

Ms Collery

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The long, sad and tawdry history of this matter is, in my view, accurately set out in the updated case information filed by the Independent Children’s Lawyer today. 

2. I am asked to make orders in default of the father’s participation in these parenting proceedings. In short, he has “given up”, having filed a Notice of Discontinuance on 7 October 2011.

3. T was born in November 1994 and will be 18 at the end of this year. Z was born in April 2000 and is almost 12.

4. Reference to the Independent Children's Lawyer’s Updated Case Information will see multiple references to reports from a psychiatrist, Dr M, a family consultant, Ms D, a further family consultant Mr C, and Dr E. 

5. Mr Emerson submits, accurately as it seems to me, that the gravamen of the case is summed up by Dr M in the passage from Dr M’s report, which Mr Emerson has read and placed on the record this morning:

   … and I believe that the likelihood is that the girls’ continuing emotional difficulties may be attributed to the mother’s hostility towards [the father] and her absolute incapacity to see that association with him could offer some benefit to the girls.

6. It is appropriate that I include a number of extracts from the expert reports filed in these proceedings (over what has been a considerable period of time) referred to by the Independent Children's Lawyer. I agree with the Independent Children's Lawyer’s submissions that each and all are relevant to a consideration of these girls’ best interests and the orders I am asked to make.

   Affidavit of [Ms D] filed on 7 September 2009:

   Page 21, paragraph 7.9 “[T’s] second dislike was “he has a really bad problem and he hasn’t been seeing anyone”.  She knew this because ‘mum told me that’.”

   Page 21, paragraph 7.11, in relation to [Z] “…She said that if she wanted to visit him and [T] did not, she would ‘just go for half an hour’.”

   Page 22, paragraph 8.2 “Although I acknowledge that the girls and [the mother] were undoubtedly distressed by [the father’s] unacceptable behaviour, I do not accept that the girls’ severe mental illnesses can be wholly and solely attributed to him…”

   Page 23, paragraph 8.3 “In my view [Z] seems to want to explore the possibility of a functional relationship with her father.  Unfortunately, he has been demonised (and she has been pathologised) to such an extent that I cannot even imagine how this could occur – given that she lives with her mother and sister.  [Z’s] response to my question about what else I ought to have asked her was most revealing.  She feels as if [T] receives most of her mother’s attention.  It is possible that the modelling [Z] has received around “how one gets attention in this household” has been one of the factors that has impacted upon her current mental health status.”

   Page 24, paragraph 8.5 “It is impossible to make a definitive determination around the cause of [T] and [Z’s] mental illness.  I expect that their treating psychologist and psychiatrist would concede that it can probably be attributed to a number of factors, not just [the father’s] past poor behaviour.  Despite this, [the mother] believes that the father is the primary cause of their problems and, as such, she insists that there be no contact or relationship between the girls and their father.  I doubt that [T] will ever re-engage with her father – such is her venom toward him.  [Z] however, may wish to engage with him and decide, on her own terms, whether she wants to re-establish a relationship.  My main concern here is that [the mother’s] conviction around how detrimental this might be may result in her “upping the ante” with [Z].  There are a number of interventions that might assist here:

   I recommend that both parents attend a Parenting Orders Program.  I recommend that the girls’ and [the mother’s] treating mental health practitioners receive a copy of this report to assist in gaining an even fuller perspective of the situation.  I recommend that [the father] attend an Anger Management program to assist in him finding ways to address and process the extreme frustration and angst he holds about this situation.  Hopefully, such a program will also assist in him being better able to take responsibility for behaving in completely unacceptable ways at times – both towards his ex-wife and towards his children.  I recommend that both parents undergo a Psychiatric Assessment to explore the possibility of any underlying psycho-pathology that might impact upon their parenting ability.”

   Report of [Dr M] dated 5 May 2010:

   Page 5, paragraph 6  “At interview she [mother] had a sore throat and spoke with difficulty.  Despite having an hour and a half of interview it was very difficult to get a sequential history and her thoughts were difficult to follow.  Her major preoccupation was the defects of [the father] but everything was couched in fairly general terms and it was difficult to elicit from her concrete descriptions of violence.  There was no disorder of perception but there was a paranoid flavour to her thoughts.  She did not appear depressed.  She was well groomed.”

   Page 7, paragraph 9  “At interview [the father] was a fit looking man who told a clear history; had some difficulty filtering information and telling a clear story.  He admits to problems with anger management and a period of depression during the marriage.  However, at this stage there was no disorder of thought, mood or perception.  He did not present with psychiatric illness.”

   Page 8, paragraphs 1  “There appears to be little doubt that [the father’s] anger played a significant part in the breakup of the marriage and has inflicted emotional disadvantage upon the children.  However, he does display considerable insight and acknowledges the problems and I believe that the likelihood is that the girls’ continuing emotional difficulties may be attributable to the mother’s hostility towards [the father] and her absolute incapacity to see that association with him could offer some benefit to the girls.  I note that the CYMHS material indicates that the mother had some difficulty in separating her own needs from that of the girls and if the father’s behaviour is the precipitant for the girls’ distress one would have anticipated that there would be some improvement in their clinical status.  This does not seem to have occurred.”

   Page 8, paragraph 2  “Consequently I think it would be of benefit for the girls’ counsellor to be given some access to the father, possibly being allowed access to reports which have canvassed the views of both parents.  If contact were to be successfully negotiated I think that it should be undertaken by a counsellor skilled in facilitating contact between an estranged parent and an alienated child.”

   [Bold in original]

   Affidavit of [Ms D] filed on 29 October 2010:

   Page 1  “ Several professionals agree that the children’s hostility towards the father is being perpetuated, to a greater or lesser extent, by the mother.  There is further consensus that the mother has some difficulty separating her own needs from those of her children.

   The professionals involved in this matter have adopted a rather cautious approach to reporting.  It is possible that, like me, this caution is underpinned by a fear of an adverse reaction from [the mother].  To this extent, [the mother] has effectively censored the professionals involved.  Her personal and professional intimidation and threats of retribution speak to her rather impressive capacity to get her own way.  I note [Dr E’s] observation that [Z’s] mood was improved on April 28 this year; this coincided with contact orders between [Z] and her father being suspended.  It is not unreasonable to assume that [the mother] would have been pleased with this ruling.  It is also not unreasonable to assume that [Z] would be impacted by her mother’s satisfaction; this may well (partly) account for her improved mood.

   [Dr E] spoke about the unlikely possibility of [Z] being able (whilst living with her mother and sister) to express a wish that was so vehemently opposed by her mother.  [Dr E] notes that at the first sign of [Z] expressing a wish to see her father to [Ms R], [the mother] concludes that [Ms R] must have been pressuring [Z] and so she ceased these consultations. This further reinforces to [Z] that she must not express a desire to see her father – or there will be consequences.  [Dr E] notes that such consequences might include emotional withdrawal from the mother and sister.  Finally and importantly, [Dr E] speaks about the pressure that all this places on [Z] and is concerned that such pressure is overly burdensome for [Z].”

   Page 2  “[Ms R’s] report is quite general in many areas; she highlights research around the detrimental impact of parental conflict upon children.  She notes that [Z] expressed to her (as she did to me) that she would like to explore contact with her father.

   I note that whilst [Ms R] states that [Z’s] primary attachment figures are her mother and sister, she did not indicate whether this attachment was functional or problematic.

   My view at this stage is that the so-called usual responses in situations such as this (therapy, parenting programs) have proven to be ineffective.  [The mother] and [T] are adamant that it will be detrimental to [Z] to see her father.  I am unable to suggest any way that this view could be shifted at all and am convinced that [the mother] will adopt a “whatever it takes” approach to ensuring contact does not proceed.  She told [Dr M] that she thought [Z] had been sexually abused by [the father], partly based on the fact that following a contact visit with her father “she refused to wear skirts anymore”.  Combined with her intimidating attitude towards professionals who do not acquiesce to her view, it is likely that [the mother] will continue to raise concerns and issues designed to strengthen her position.

   Although the Court will undoubtedly consider a range of available options and outcomes, I feel rather pessimistic about the prospect of either girl having a relationship with her father and therefore expect [the father] will have to surrender his desire to have a relationship with his daughters.  If he persists with his Application, it is probably inevitable that [Z’s] mental health status will become as poor and entrenched as [T’s].  Whilst this is unfortunate for both [Z] and [the father] it may be the only response that allows these girls to manage living with their mother for the remainder of their childhood and adolescence.”

   Affidavit of Family Consultant [Mr C] filed on 10 February 2010:

   Page 4:“I am particularly concerned about [T’s] emotional state and consider that a large contributing factor to her mental ill-health has been the parental conflict she experienced whilst the family was together.  However, based on information provided by [the mother], [T] does not seem to have improved greatly since she and the children left the family home in August 2008 and have had no further involvement with the father.

   It is clear from studies in the field of Neuro-biology that exposure of young children to ongoing trauma can impact neural pathways and have long-term effects on the person’s behaviour and social competence.  This may manifest itself in a range of ways including aggressive and anti-social behaviour, compromised school performance, eating disorders, peer-relationship problems and mental health issues.

   I am also concerned that a child of [Z’s] young age seems to be suffering from mental ill-health and is requiring anti-depressant medication.

   I cannot conclusively determine whether the allegations of each parent about the other are valid, I believe there is sufficient evidence to say that the children’s emotional health has been compromised by the parental conflict and in part due to [the father’s] behaviour pre-separation.  I also believe that there is evidence to indicate that [the mother] is perpetuating the children’s sense of insecurity and fear of their father.

   I believe that a psychiatric assessment of both parents is required to further assess the above issues.  As I understand it, such assessment is to occur in April 2010.

   I strongly suggest that no pressure be brought to bear on [T] to have any contact with her father, for no matter what the reasons behind her antipathy, she holds a very strong negative position towards him; and to force her into involvement with her father at this stage is likely to seriously unsettle her.

   I consider that the input of the children’s respective counsellors should be obtained and considered before any significant decisions are made concerning the children.”

   Page 5: 

   “As stated above, I consider that a psychiatric assessment of the parents should be obtained.

   [T’s] wishes in relation to involvement with her father should be respected.

   An updated family report be obtained closer to final determination and taking into account the psychiatric assessment of the parents and recommendations from the children’s counsellors.”

   Affidavit of [Dr E] filed 13 September:

   “…The sessions have involved time seeing [Z] with her mother…present and usually also time speaking with her mother…without [Z].  Management has involved medication monitoring, mental state monitoring, supportive psychotherapy and parent guidance. [Z’s] mental state has generally improved gradually over that time.  I have been able to decrease and cease her antidepressant medication Fluvoxamine such that she has been off the medication since 17/03/11.  She is currently sleeping and eating well.  There have been improvements in school functioning including academic progress.

   Despite her progress, her mood does remain fragile, easily reverts to depressive states and she could generally currently be regarded only as significantly but partially recovered.

   In relation to communications with her father, I received a letter from [the father] on 24/11/10.  This comprised a cover letter dated 22/11/10 addressed to myself and a letter dated 21/11/10 addressed to [Z].  On 26/11/10, [Z] and her mother attended.  I read aloud the cover letter, addressed to myself, to [Z] with her mother in the room.  I then opened and perused the enclosed letter to [Z] from [the father] without reading it aloud.  I noted to [Z] and [Z’s] mother that the letter included the contact details of [the father] for [Z].  [Z] said that she did not want to read the letter and indicated that she did not want to take the letter home.  I indicated that I would keep a copy of the letter (as a scanned document on computer file) should [Z] wish to see the letter at any stage.  I have awaited [Z] initiating further discussion about the letter but she has not done so and in particular has not requested contact details regarding her father.  I have not received any other communication since that time from the father.

   I continue to provide psychiatric outpatient care for [Z].”

1. I think it is also important to provide by way of background extracts from earlier Reasons given by me on 19 May 2010, noting that the husband commenced proceedings in the Federal Magistrates Court in April 2009:

   7.The second application in the case filed by the mother is more curious.  It seeks a number of orders, many of which are plainly incompetent or outside the jurisdiction of this court.  As one example, the mother seeks an order that: “[Dr M] and [the Independent Children’s Lawyer] pay the mother and children for a house removal and all costs associated with the move.” A further order is sought that: “A temporary order be made that the father will not be allowed in any area of the Gold Coast.”

   8.For present purposes, though, it is recorded that the application seeks: “the immediate dismissal of [the Independent Children’s Lawyer].” And further in that respect, that he: “be dealt with by the court for unprofessional conduct and intimidating and demeaning behaviour – if not threatening the mother.  Mr Emerson has been interfering with evidence for the children’s case, has exposed the mother and children to careless endangerment with intent.”

   9.A further order seeks that: “[Dr M] also be held accountable for her actions of exposing the mother and children to careless endangerment with intent, that [Dr M’s] psychiatric report be stricken from the court record.”

   10.The application goes on to seek other orders that might be seen as incidental to those orders, for example, an order that: “a new ICL be appointed” and – “that a new psychiatrist be appointed for the parents’ psychiatric report from the Gold Coast.”

   …

   19.Consistent with what is laid down in Division 12A of the Act relating to the conduct of proceedings of this type, I sought from the mother, who represents herself, statements from the bar table said to support those assertions. The mother made a number of statements which will be seen in the transcript, a copy of which I will order. None of the matters raised by the mother are, in my view, sufficient to come close to being cogent evidence of the type that would be needed in order to take the very serious step of dismissing the Independent Children’s Lawyer.

1. The mother’s attitude towards these children is a disgrace.  It makes me feel sick to my stomach. I can only but wonder what will happen to these children. Judges are human; they have ordinary human reactions to the cases they hear, particularly those involving children. The mother’s attitude to the children and any potential relationship with their father is disgraceful, disgusting, immoral and non-child-focused. 

2. Nevertheless, as I have said to her, she has “succeeded” because, ultimately, the father has “given up”.  The issue before me today then is what orders should be made in the best interests of these children (if such expression can be used euphemistically in light of the mother’s disgraceful behaviour towards her children, as is revealed patently in the reports to which I have just referred).

3. In those circumstances, submissions have ensued this morning in relation to orders proposed by the Independent Children’s Lawyer and the mother.  The mother’s proposal is that she have sole parental responsibility for the children [T] and [Z]. [Z], unfortunately for her, has a number of years yet to travel before she can make her own decisions about the relationships that she should have with loved objects in her life.

4. One would sincerely hope that in the not too distant future, [T] will make decisions as an adult that are likely to produce for her long-term, stable psychological and emotional development so that she might repair the damage that has been done to her by these proceedings and, in my view, the attitudes exhibited to her by her mother.  I can only hope that the same might also apply to [Z]. 

5. However, despite all of those concerns and reservations and the innumerable times I have expressed those same concerns and reservations to both parties during the course of the proceedings, I am confronted by the father having discontinued and, therefore, my obligation is to make orders that might bring this matter to an end at least as far as the proceedings in this Court are concerned.

6. Unsurprisingly, the orders sought by the Independent Children’s Lawyer are that the children live with the mother and that they spend time and communicate with their father in accordance with their wishes. 

7. Initially, the Independent Children’s Lawyer sought additional orders that the order shall itself be authority for the father to obtain school reports, photographs and the like.  However, on reflection, Mr Emerson submits that such an order might, in fact, create for the children (for which essentially one should read [Z]) in effect, “more trouble than it solves.”

8. The reason for that submission can plainly be seen by reference to the many, many reports received by experts during the course of these proceedings and in particular the report from [Dr M] to which Mr Emerson earlier made reference.  I do not propose to make that order, sad though it makes me feel that I do so. 

9. Similarly, initially, Mr Emerson sought an order that the mother keep the father informed via email of the children’s current school at all times.  The mother raises a nonsensical objection to that order. Ultimately, Mr Emerson does not press for the making of that order for the same reasons that I have just referred to in respect of the previous order. Again it seems to me, in light of the extensive report material filed in these proceedings, that it is inappropriate to make that order. 

10. Order 6 sought by the Independent Children’s Lawyer is that the mother permit the children to email or telephone their father should they desire to do so at any time.  The mother raises spurious objections to that order. It seems to me, however, that, in terms, the order simply requires the mother to do what any decent, respectable human being would do. That is, when a child expresses a desire to make contact with their blood, they would facilitate that occurring.  I see no basis whatsoever for the mother’s spurious objection given the terms of the order. I propose to make it. 

11. Paragraph 7 of the orders sought by the Independent Children’s Lawyer is that the father keeps the mother advised of his email address and telephone number at all times. The intent behind that order is clear and I described it during the course of discussions as “innocuous”.  Indeed, the intent of the order in those terms can be seen plainly to be beneficial to the father.  However, unfortunately, it is, in terms, an order which binds the father and although it might be seen to be wholly for his benefit and of potential assistance to him in the future, it is an order sought subsequent to him having filed a Notice of Discontinuance and of which he does not have notice. I am not prepared to make that order.

12. In any event, I might say that even if I were prepared to make that order, it seems to me highly likely – again based on all of the reports that have been filed in these proceedings – that this mother would do whatever in her power she could do so as to prevent the children becoming aware of the father’s email address and telephone number. 

13. The order sought by the mother in paragraph 2 of the orders proposed by her is, in effect, in the same terms as that sought in more general and simpler terms at paragraph 3 of the orders sought by the Independent Children’s Lawyer. I propose as a result, to not make the orders sought by the mother, but rather the orders sought by the Independent Children’s Lawyer to that effect. 

14. The only other issue remaining is that which is contained in paragraph 1 of the orders sought by the mother. 

15. She seeks an order that she have “sole parental responsibility” for the children.  I do not propose to make that order. 

16. I should formally say, as if it is not already obvious from the plethora of expert material filed in these proceedings and my earlier comments, that it is plainly not in the best interests of these children for there to be an order for equal shared parental responsibility by reasons of the obligations contained in the Family Law Act 1975 (Cth) (“the Act”), and in s 65DAC in particular. That section requires parties who have parental responsibility to actively confer and consult and genuinely attempt to arrive at joint decisions in respect of the child.

17. This mother has absolutely no capacity whatsoever to accord to the father any role in the children’s lives. She has demonstrated this remorselessly and ceaselessly and I have absolutely no doubt that she will continue to do so in the future. The parties, irrespective of that, have no capacity in any real sense to comply with the provisions of section 65DAC of the Act, which, as the terms of that section clearly indicate, are mandatory.

18. Accordingly, it seems to me that the presumption of equal shared parental responsibility is plainly rebutted in the best interests of these children.  Little more need be said in that respect perhaps then such as is evident from the arrangements which will form the basis of the orders already referred to. 

19. The question then arises as to what order ought be made in circumstances where the presumption is rebutted. The order that the mother seeks is an order for “sole parental responsibility”. An order in those terms is commonly sought in this Court. It is an order without meaning in terms of the Act in the sense that “sole parental responsibility” is not a phrase which is defined in the Act. Nor, indeed, by reference to the Object, Principles and specific sections dealing with parental responsibility in Part VII is it an expression that finds ready reference.

20. Section 61C dictates the position with respect to parental responsibility absent an order. Section 61D provides that this position with respect to parental responsibility is not altered, save to the extent to which it is done so, specifically in orders. Given those matters, and the Act’s definition of parental responsibility it seems to me that an order that provides in terms for “sole parental responsibility” is an order which, at least arguably, wholly eliminates the role of one parent in respect of “major long-term issues” in respect of their children.

21. An order which completely eliminates one parent from the lives of children, at least in terms of decisions made about “major long-term issues” seems to me to be a significant and fundamental interference with that individual’s human rights.  It seems to me that such an order ought not be made unless there are good reasons to do so.  Plainly enough, as the High Court makes clear in U v U (2002) 211 CLR 238 and other decisions, any such consideration pertaining to the matter to which I have just referred takes second place to the best interests of the child, but, as those decision make equally clear, while best interests is the paramount consideration, it is not the sole consideration.

22. A corollary is that there should be plain evidence before the Court that the best interests of the relevant children require an order that arguably eliminates one parent from their lives.  I am not remotely satisfied that that is the case here. 

23. It seems to me that the existing situation should pertain. That is to say, by reference to section 61C of the Act, it seems to me entirely appropriate that the parents of these children should each retain parental responsibility for them. Accordingly, I will not make the orders sought by the mother at paragraph 1 in respect of “major long term issues”, nor will I make any other order in respect of parental responsibility, save as to declare that the presumption of equal shared parental responsibility is rebutted in the best interests of these unfortunate children.

24. The Independent Children's Lawyer seeks an order that the Reasons issue so that, should curiosity arise in the children, once they are adults, they should be able to receive an alternative view to their mother’s as to why the father is not, and has not been, a part of their lives. I consider that appropriate and I will include in the Reasons when they issue quotations from the reports and other matters discussed in these proceedings.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 16 February 2012.

Associate: 

Date:  21 February 2012