DEACON & CASTLE

[2014] FCCA 3140

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEACON & CASTLE [2014] FCCA 3140

Catchwords:
FAMILY LAW – Parenting – resumption of unsupervised time between the father and the children following a trial which changed the children having arrangement – immediate deterioration of children’s relationship with the mother – family violence – risk factors in each party’s case – appointment of Independent Children’s Lawyer – short adjournment – suspension of father’s time – children’s expressed views regarding mother – disclosures of abuse in mother’s care – enmeshment with father.

Legislation:

Family Law Act 1975, ss.60I, 65DA(2)

Applicant: MS DEACON

Respondent: MR CASTLE

File Number: SYC 5348 of 2008

Judgment of: Judge Stewart

Hearing date: 28 January 2014

Date of Last Submission: 28 January 2014

Delivered at: Parramatta

Delivered on: 28 January 2014

REPRESENTATION

Solicitors for the Applicant: Mr Edwards of Watts McCray Lawyers

The Respondent appearing in person

ORDERS

1. Orders 7 to 13 inclusive of the orders made 4 July 2013 be suspended.

2. The children X born (omitted) 2002 and Y born (omitted) 2003 be forthwith returned to the mother and she be permitted to collect the children as soon as practicable after these proceedings.

3. Until further order the father:-

   (a)Be and is hereby restrained from approaching the children or to be at or within 200 meters of the children;

   (b)Be and is hereby restrained from contacting the mother, the children, or to be at or within 200 meters of the mothers home or school of Y and/or X.

4. Request that Legal Aid Commission New South Wales consider the reappointment of Ms Christine Hafey as the Independent Children’s Lawyer in these proceedings.

5. Adjourn all extant applications to 1 April 2014 at 9.30am.

6. Pursuant to section 65DA(2) 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 is set out in Attachment A and these particulars are included in these orders.

7. Grant leave to Independent Children’s Lawyer to issue more than five subpoenas in the proceedings.

THE COURT NOTES THAT:

A.The father absented himself from the court during the delivery of the orders in this matter.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 5348 of 2008

MS DEACON

Applicant

And

MR CASTLE

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court on the application of the Mother filed on 21 January 2014.  The application comes before the Court on an urgent basis with the Mother seeking the return of the children:-

   a)X, who I shall hereinafter refer to as “X”, born on (omitted) 2002.  X will shortly be 12 years old; and

   b)Y, who I will hereinafter refer to as “Y”, born on (omitted) 2003.  Y is 10 years old.

2. The Mother seeks that various orders made by Judge Harman on 4 July 2013 be “set aside,” that the children spend no time with the respondent Father and also seeks various restraining orders with respect to the Father contacting the Mother, the children or being at or near the Mother’s home or the school attended by the children. She seeks that the children forthwith be returned to her, and if necessary, she seeks that a warrant be issue to achieve that. She seeks a dispensation of the usual orders pursuant to section 60I of the Family Law Act 1975.

3. The Father, for his part, filed a Response, I think at lunchtime today but it matters not exactly when it was filed, that the children live with him; that there be a supervised contact regime between the children and the Mother for a period of 18 months; that the Mother be restrained from using any form of physical discipline or chastisement towards the children or either of them; that the Mother participate in an anger management program and a keeping in contact program; that the Mother be able to communicate with the children between 5.00pm and 6.00pm once per week; that she be able to send correspondence addressed to the children via the residential address and the Father pass those documents on to the children, and that there be a non-denigration order by the parties with respect to denigrating the other in the presence or hearing of the children.

4. This matter comes before the Court on the very first proper duty list day following the Court shutdown period over January and, as such, it is an exceptionally busy day.  The matter was initially listed before Judge Harman as it was a case that he heard over a period of six days in June 2013 and his Honour delivered what can only be described as a lengthy and comprehensive judgment on 4 July 2013. That judgment runs to some 187 pages and to some 680 paragraphs.

5. I do not pretend to be completely on top of the contents of the entirety of that document and nor could I be in the time that has been allotted with respect to today and the time that I have today.  The matter has been transferred to me in a busy duty list and it has some aspects of urgency, as in disputed circumstances, the children, X and Y, have not been in their Mother’s care since 28 December 2012 notwithstanding that the ultimate result of the proceedings before Judge Harman and the orders that were made on 4 July, that the children be in the care and residence – and live with the Mother and spend specified time with the Father.

6. It is necessary to traverse a brief outline of the proceedings before his Honour in June and July 2013.  Up until that date the children had been living primarily in the care of the Father and, for reasons that are set out at paragraphs 465 to 505 of that judgment, his Honour made findings that the children were at an unacceptable risk of harm in the Father’s care.  His Honour referred to the evidence of two professional witnesses, a Dr S and Ms D.  Dr S had proffered an opinion that the relationship between X and her Father was enmeshed.

7. It is quite clear that his Honour observed that Dr S had not seen X for some considerable period of time prior to the matter coming to Court before his Honour but the deterioration in X’s behaviour were entirely consistent with Dr S’s predictions and the entirety of her evidence.  Ms D, the Family Consultant who prepared the Family Report, ultimately left the finding of enmeshment open to the Court at that time but expressed clearly her view that such a finding was open on the evidence at that time and deduced that there was a dire prognosis for X’s future in the event that finding of enmeshment was found.

8. His Honour assessed that there were risk factors associated with the care of the children in each parties care and recognised that if both children continue to reside with the Father there were clear risks particularly as regards to X and her ongoing psychological and emotional development.  He assessed that should the children pass to live with the Mother and there was a clear risk to X as regards to her capacity to deal with such a change in arrangements.  His Honour found at 472 of the document as follows:

   I accept and am satisfied, by reference to the evidence discussed above, that there would be an established, unacceptable risk to both X’s present and long term wellbeing of continuing to remain in an enmeshed relationship with her father.  Thus the issue becomes whether I am satisfied that such an enmeshed relationship exists at present and, if so, whether it can be addressed in the future through some form of family counselling, family therapy or other order of this Court.

9. His Honour ultimately found that X’s relationship with her Father was enmeshed and thus unhealthy and an unacceptable risk to her now and in the future.

10. His Honour’s findings go on for some considerable period of time.  However, I note that his Honour said at paragraph 494:

    X’s independent will and personality are entirely crushed and subsumed by her enmeshed relationship with her father and with the simultaneous consequence that I am satisfied that:

    a) The nature of the enmeshed relationship represents an unacceptable risk to X and Y (who whilst not so enmeshed as her sister has the potential to be further enmeshed and impacted) immediately;

    b) Failure to address that relationship (which the evidence satisfies me can only occur through removal) has disastrous long term and predicable and likely consequences for both girls.

11. His Honour identified that there was certainly a risk with respect to changing the children’s residence, although ultimately determined at the conclusion of those proceedings that a change should occur.  It is impossible in these reasons to set out all of his Honour’s judgment and, indeed, anyone reading this judgment should also read a much more comprehensive assessment of the facts as they existed in the middle of 2013, as set out by his Honour.

12. As a result of his Honour’s findings, the orders made on 4 July 2013 were significant and effected a very significant change with respect to the girls.  He ordered that the Mother have sole parental responsibility for the children and that they live with her.  He ordered that the Independent Children’s Lawyer and a Family Consultant explain the orders to X and Y and he ordered that the children, amongst other things, immediately go into the Mother’s care.

13. Importantly, and as a direct consequence of the findings that his Honour made, he ordered that there be essentially no contact between the Father and the children until 7 December 2013 and then there be graduated increasing time with the Father commencing with day time on the Saturday, leading to the girls spending time with the Father each alternate weekend during school terms from the conclusion of school on Friday until the commencement of school on Monday.  There were other ancillary orders associated with that judgment.

14. Suffice to say that today the Father has expressed a great deal of dissatisfaction with his Honour’s findings, but as I have pointed out to him, I do not sit in appeal of his Honour’s findings and I simply sit and deal with the matter as best I can in this busy duty list on an urgent basis, in circumstances where leading up to the change of residence of the girls, his Honour has clearly and with some depth of consideration indicated that he regarded the children at risk, if not grave risk of harm if they remained in the Father’s full-time care.

15. I turn now to what has happened since the application was determined by his Honour.  As was clearly the case, the children did not spend any significant time with the Father until December of last year; that is less than 12 weeks ago.  It seems that, on 8 December 2013, the Father commenced spending time with the children.  The children spent time with the Father on 7 December and 14 December, on 21 December, and then spent time with the Father on 28 December.

16. On even the first three occasions the children spent time with the Father prior to the children remaining with him on or around 28 December, there were difficulties with the way the Mother perceived the children interacted with the Father.  For instance – and I just use this by way of example – on the very first occasion of time on 7 December 2013, the Mother alleges that the Father told the children, “Tell your mother while she is here what she has done to you.”

17. I note that the Father, at this point, has interjected my reasons for judgment and denies that allegation. 

18. The Mother says that the Father engaged in a tête-à-tête with the Mother in front of the girls, where he said words to the effect of, “Come here, for once in your life, and you will see what you have done.”  “Look what you have done, you have taken these girls from their father, their friends, their school.”  The Mother responded and said the girls are happy and finally have had a chance to love their mum, and the Father said, “The girls are crying because they don’t want to be with you.  They want to be with their father.  I hope you are happy now.”  The Mother responded with the words, “You haven’t learnt anything.”

19. I note that, as I deliver these reasons for judgment, the Father continues to interject and denies the allegations or the words that the Mother alleges that the Father has spoken.  I digress at this point to point out that, as opposed to the proceedings before his Honour in June of 2013, in a duty list such as this I am unable to make findings on questions of fact that are alleged and denied, even from the bar table, as to what was said or not said at any period.

20. The Mother – and I again say in general terms – talks of what I will term the long goodbyes at the conclusion of time, where, at least by inference, I glean that the Mother says that the Father made a big production out of the changeovers at the conclusion of time.  The changeover on 14 December again had the children being returned where the Mother alleges a long goodbye and that the children’s demeanour was not as usual.  She says there was a call by the Father for another cuddle to say goodbye, but the children settled quickly back into the Mother’s care.  I stress that, at the moment, I’m dealing with the allegations in the Mother’s case and not the Father’s case.

21. The Mother deposes at that juncture that, later in the evening, two police officers arrived at the home and they told the Mother that a call had been made with respect to the safety of the children from a woman who was concerned about the welfare of the children living in her home.  The reporter apparently said she suspected that there must be violence in the home because the girls looked unhappy returning.  The Mother says that the police spoke with the children and confirmed that all was well, and the police officers appeared happy with their responses.  Clearly the Mother suspects – although I make no finding – that the Father was involved in some way with that report to the police, although it had not come directly from him.

22. The Mother then deposes in her affidavit to the changeover on 21 December 2013, which was the next time that the Father was to spend time with the girls pursuant to the orders.  The Mother delivered the children as she was required to, and the Father returned the children to the Mother’s home as he was required to.  She said that the Father kissed the girls goodbye and was crying when he said goodbye.  She says that the girls walked towards her and the Father called them back to give him another hug.  According to the Mother there was an unpleasant exchange of words between the parties at that time.

23. On 28 December, which I note occurred on only the fourth occasion of time that the girls had spent with their Father pursuant to the orders made in July 2013, and according to the Mother, at drop off time Y whispered to X, “We’re never on time like Dad said.”  The Mother sought to placate the girls.  This is contained at paragraph 31 of the Mother’s affidavit.  The Father then returned the children at the house at around about 5.00pm in the afternoon.  The girls walked to the rear of the van, and Y appeared to the Mother to be nervous.  The Father let go of the girls and they walked towards her.

24. The Mother said that she hung onto X’s hand and put her arm around Y’s shoulder, and she was asking them fairly innocuous questions.  They again ran back down to the driveway and gave the Father another cuddle.  She walked to get the girls and they started to leave the driveway again.  It is alleged by the Mother that the Father said words to the effect of, “I am leaving now, are you staying or what?  If you’re coming with me I’m going, otherwise you are staying here.”  She said that Y ran to the Father and they went around to the driver’s side of the vehicle.  The Mother grabbed X’s arm as she went to run, and asked her to wait on the footpath.  The Mother walked around the driver’s side of the vehicle.

25. Y was standing on the step of the van.  She asked Y not to get in the van.  Apparently Y hesitated and looked at her, then the Father, pushed her into the vehicle and said words to the effect of, “Well I am leaving.”  The Mother alleges that the Father was angry.  She says that she started to walk towards X on the footpath and that the Father alighted his motor vehicle and ran after her.  She says that the child, X, looked at the Father chasing after her and ran to the rear of the van and then down to the driver’s door and that the Father picked up X and pushed her into the vehicle, across Y’s lap and into the passenger seat.

26. The Mother says that the Father started the vehicle and drove forward at a fast pace to do a u-turn.  The Father shouted out of the van window words to the effect of, “The children love me not you.  I am going to the police.  I have so much to tell them about what goes on here,” and there were further altercations.  What is clear is that the children have not been returned to the Mother’s care since that time.  I note that the Mother has filed further affidavit material by a Ms L who, amongst other things deposes to being witness to abuse between the Mother and the Father, directed by the Father towards the Mother; the witness deposes to the changeover on 14 December, the changeover on 21 December and the changeover on 28 December, which is consistent with the Mother’s version of events.

27. I note that the Mother files an affidavit from a Ms D and, importantly from my point of view, that witness deposes to seeing the children when they were in the sole care of the Mother.  What is remarkable about that evidence, in terms of what has happened since, is that the children, from this deponent’s point of view, appeared happy and settled in their Mother’s care. 

28. There is a further affidavit filed on behalf of the Mother by a friend, Ms C.  She deposes to the Father abusing her when she was at the (omitted) Shopping Centre in an abusive and demeaning way.  She says that she was scared of the Father. 

29. There is a further affidavit from Ms V who files an affidavit in support of the Mother.  She deposes that on 23 November last year she saw the children, X and Y, who seemed happy in the home and saw them on a picnic day at (omitted) where they seemed happy and behaving as you would expect children to behave.  Significantly, there is no allegations or no evidence that the children were enjoying anything but a normal home environment with the Mother.  This is in sharp contrast to that which the children report to their Father.

30. In his affidavit filed in support of these proceedings on 28 January 2014, he says that as early as 7 December 2013 – being the very first occasion that the children spent time with the Father following the conclusion of the proceedings on 7 December 2013 – the children cried all day upon their return and said words to the effect of:

    I’m not going back (to the Mother’s), Please don’t make me go back.

31. X said words to the effect of:

    “I’m scared of my Mother and her angry moods. I hide in the cupboard, she screams at me and smashes things. She says that all of the Court case and everything that has happened is my fault. My Mother also said that she will never let me see you (the Father) again”. 

32. At paragraph 30 the Father alleges Y said:

    I am scared of my Mother. She yells at me and smashes things and I hide under the kitchen table. I have wet my pants while hiding under the table few times”.

    X also said to me words to the effect of:

    “After court [on 4 July 2013] it took four adults who worked at the Court to get Y and I into our mother’s car. We were crying and screaming as we did not want to go”. 

    Y also said to me:

    “My Mother makes me a slave over there. I have to get my mother drinks and take things to and from her while she watches television”.

33. He says that when the children were being returned they were saying things such as, “Please, dada, don’t make us go back”.  He says that on a second occasion, the X said to him that:

    They were locked in Y’s bedroom with the door tied shut with rope. I did not have any bath or shower during this time. I did not get to change my clothes and did not speak to anyone. Y would bring me some food up to the bedroom but I was too unhappy to eat anything. I got very thin and felt sick.

1. The Father says that X and Y:-

   a)told him that they had been hiding in cupboards and under the table; 

   b)that their Mother yells at them, smashes things and tell them that they will never see their Father again; 

   c)that she drags them round the house by their hair; 

   d)that they are never able to talk to their friends from (omitted) Public School again; 

   e)X said that her Mother said that everything that has ever happened with the Court case was her fault and she called X “a fucking little bitch” and if she cries, she makes fun and laughs at us.

2. On the second occasion of time, on 14 December, the Father says that the children were both very upset and crying on the return journey to the Mother’s house.  He says that when they arrived at the Mother’s house at 5.00pm, they both said they did not want to go with the Mother and told him she hurt them.  They were begging the Father not to make them go back.

3. It seems that a woman, (omitted), made a report to Department of Community Services on 15 December 2013.

4. The next scheduled occasion for time between the Father and the children was 21 December 2013 and the children made further complaints about their treatment at the hands of the Mother.

5. On 28 December, the children said to the Father, words to the effect of:

   We hate being at our Mother’s place. She is always angry and screaming at us. We are really scared of our Mother…

   “we hate it over there with our Mother.  We want to come home.  Please Dadda don’t make us go back to her.”

6. Apparently Y yelled at the Mother “I am not going with you” at the return time for changeover.  He then says:

   I then observed the Mother grab Y’s hand and squeeze it. I heard Y scream.

7. He also says during a shortly later incident that he saw the Mother grab X’s right arm suddenly with both hands, causing it to twist, that the Mother dragged X up the driveway by the right arm, he heard X let out a high-pitched scream and she was crying hysterically.  He said that he got out of his van and yelled “stop!” to the Mother.

8. The Father says that at that stage X ran to his van and he drove to the emergency department at (omitted) Hospital and that the children were examined by various doctors and it appears that X’s wrist, at least on a prima facie basis, has been injured.  He has retained the children in his care since that time and says in his affidavit and tells me in court today that the children simply do not want to return to their Mother’s care.

9. The presentation of the children in the Father’s care is very troubling indeed.  His Honour made a finding of enmeshment and it seems that within four time periods the children have gone from apparently enjoying a simple life in the home of their Mother to being further enmeshed in the difficulties that present in these proceedings.  It appears that at least at first blush, there may have been an incident at changeover where the Mother grabbed the child’s wrist and I take that into account.

10. However, what the Father completely fails to recognise is that his involvement in the changeover and the enmeshment of the children, as found by his Honour Judge Harman, and the way the children have interacted with him and in turn reacted to returning to their Mother, has directly implicated him in that injury perhaps suffered by X and/or Y, yet he takes no responsibility for it.  I am troubled that the Father, rather than reading and taking on board the extensive findings of Judge Harman, seems to simply suggest that Judge Harman got it completely wrong, and is unable to reflect on his own behaviour in terms of these girls’ presentation.

11. It seems that what Judge Harman would have hoped, which would have been a six-month break to reintroduce time, has done nothing more than reignite the passions that are present in these proceedings, even after such a lengthy break.  I find that troubling indeed, because, of course, the remedies available to the Court in circumstances such as this become less tolerable and less in line with these children’s right to have a meaningful relationship with both of these parents.  As it would seem from the way these proceedings have now evolved, it may be that a court in the ultimate may have to make a choice as to which person these children have a relationship with.

12. The Act requires me to consider a number of things and I have done that in these proceedings.  However, what seems to me to be very significant in these proceedings is the need for the children to have a meaningful relationship with both of their parents and the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  The only thing that has happened since the determination of Judge Harman is the implementation of the time on 7, 14, 21 and 28 December 2013, which has resulted in the children being over-held by the Father in the most difficult and tumultuous circumstances.

13. On the one hand, I must consider the Father’s assertions that the Mother has physically chastised at least one of the children and probably both of them on 28 December.  However I must weigh that against the psychological risk identified by Judge Harman, resulting in the orders that he made on 4 July 2013. I am concerned that the children have gone from apparently a normal and unremarkable relationship with their Mother during the period of uninterrupted time with their Mother, to such a vociferous emotional and distressed rejection of their Mother, according to the Father.

14. In the circumstances, I consider that the children are indeed at a greater risk of harm in the Father’s care than they are in the Mother’s, and I will make an order that the children return to the Mother this afternoon.  I have considered the views described by the Father as being expressed by the children, but believe that they are part and parcel of the difficulties that his Honour identified, being the enmeshment relationship of the children and, in particular, X. 

15. In my view, the relationship, at least prima facie, between the children and the Father is detrimental to their welfare.  It seems that whilst the Mother has a willingness to facilitate and encourage the relationship between the children and the Father, the Father does not seem to have the same willingness to accept that the Mother has an ongoing and continuing role in the children’s lives.  The Father would seem to feed the children’s anxieties in that regard.

16. When I consider any changes to the children’s circumstances, the orders that I propose to put in place will return the children to the arrangements that existed between July and December of 2013.  Although there will be, obviously, an effect in a change of circumstances which necessarily will be difficult for the children, given their emotional presentation at this stage, in my view, their interests demand that a change occur immediately. Even though their living arrangements with the Father have been in contravention of the court orders made on 4 July 2013 and have been in place for over a month,  I do not underestimate the power of that enmeshment relationship and how it has affected the children in that period. 

17. There are no practical difficulties for the children spending time with the Father.

18. When I consider the capacity of each of the parents, I consider that the Father has no capacity or little capacity to provide for the emotional needs of the children, whereas the Mother seems to at least have embraced her role during the difficult period between July and December 2013.  I note that the child, X, will be 12 in a matter of months, however I cannot be satisfied that any views that she expresses are really her true views, but are rather a process of the level of entwinement and enmeshment that she feels with the Father. 

19. I have considered the attitude to the children in detail in these reasons for judgment.  Of course, there is family violence alleged, but his Honour made findings in relation to that in his judgment of 4 July 2013.  These orders are by necessity are holding orders, as I propose to reappoint the Independent Children’s Lawyer, with a request that it be the previous Independent Children’s Lawyer. 

20. In the circumstances, I also take into account the very recent nature of his Honour’s lengthy judgment and the fact that the Father did not appeal that judgment, although I do note the Father has told this Court today that he was simply unable to afford to go through the appeal process.  Unfortunately for the Father, that does not put me in the place of an appeal court and it is not my function and nor am I permitted to revisit the findings made by his Honour in his judgment. 

21. It is not possible in these reasons, and given the time of day and given the children are in a childcare centre, to engage further. However, I note that I am going to adjourn the matter only for a period of about six weeks, to allow the reappointment of the Independent Children’s Lawyer.  In the interim, I need to consider what I do with any time arrangements between the children and the Father.  Although it is a very drastic step, in my view, given the haste at which the children’s relationship with their Mother deteriorated during the period 7 December to 28 December of 2013, there is little choice but to suspend the Father’s time with the children in its entirety and revisit that when the Independent Children’s Lawyer has been appointed.

22. The Court notes that the Father absented himself from the Court during the making of the orders in this matter. I just want to add into the judgment, which I had failed to put in, that in addition to my concerns, it appears that there have been no less than 14 reports in relation to the children, between 14 December 2013 and 23 January 2014, to the Department of Community Services.  11 of those reports were closed and three of those remain open.  I would expect that the Independent Children’s Lawyer will have access to those documents.  And in that regard, although I note that Mr Edwards has indicated that the documents have been subpoenaed. I grant leave to the Independent Children’s Lawyer to issue more than 5 subpoenas in the proceedings. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Associate  

Date: 19 March 2015