Denfert and Avron

[2010] FamCA 245

FAMILY COURT OF AUSTRALIA

DENFERT & AVRON [2010] FamCA 245

FAMILY LAW  -  CHILDREN  -  parenting orders  -  Magellan  -  child exposed to unacceptable risk of physical, emotional and intellectual harm with mother  -  live with father  -  sole parental responsibility

Family Law Act 1975 (Cth)

FATHER : Mr Denfert

MOTHER: Ms Avron

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7099 of 2008

DATE DELIVERED: 15 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 February, 2010

REPRESENTATION

SOLICITOR FOR THE FATHER: Altavilla Vessali

THE MOTHER: No appearance

INDEPENDENT CHILDREN’S LAWYER Maria Barbayannis & Co

Orders

1. That all previous parenting orders and injunctions which relate to the child … born … September, 1998 be discharged. 

2. That the father have sole parental responsibility for the child. 

3. That the child live with the father. 

4. That the mother spend time and communicate with the child as agreed between the parties. 

5. That in the event the child asks to communicate with the mother by telephone, the father do all things reasonably necessary to facilitate this. 

6. That a sealed copy of this order be served on the mother by sending it by ordinary prepaid post addressed to her at :

   (a)her address for service; 

   (b)…;  and

   (c)….

7. That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal. 

8. That the reasons for judgment this day be transcribed and copies be made available to the parties.

9. That pursuant to s.65DA(2) and s.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 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.

10. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES 

(a)That it has found that, as at this date, any face to face contact the mother has with the child should be supervised;  and

(b)Paragraph (4) of these orders does not require the father to agree to a proposal by the mother to spend time with the child if he, in his absolute discretion, believes it would impact adversely on the child, or expose her to physical and/or emotional abuse. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7099 of 2008

MR DENFERT

Father

And

MS AVRON

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The background to this case has been rehearsed in numerous judgments, including judgments of mine delivered on 13 January, 2009, 9 February, 2009 and 18 March, 2009.  In earlier judgments I have also briefly summarised the relevant legal principles. 

2. In brief compass, the parties were in a relationship between the date of their marriage in March 1997 until they separated in 2001.  They divorced in 2004.  The subject child, their only child, was born in September, 1998.  For some seven months after separation, the child lived with the father.  She then moved to live with her mother, with whom she remained until 30 April, 2009, when a recovery order made on 18 March, 2009, in the absence of the mother, was executed.  On 18 March, 2009, the court ordered that until further order the child live with the father. 

3. These proceedings commenced on 5 August 2008, when the father filed an application in which he sought that the child live with him.  He was concerned that the child was subjected to, at best, neglect, and at worst, more substantial risk, as a result of the mother’s mental health, drug use, lifestyle and general parenting. Amongst other complaints, he was concerned, he deposed at that time, to the child’s exposure to aspects of the work he alleged the mother undertook in the sex industry, and the child’s exposure to inappropriate sexual matters.

4. The response the mother filed on 2 September 2008 sought that the child live with her.  At that time she filed a notice of child abuse, alleging, without providing any particulars or dates, that the father had been physically abusive to the child (she referred to slapping, pulling of her arms, dislocation of an arm and punching) and of masturbating when the child was in his bed as a very young child.  She made a number of allegations about the father’s new wife, Mrs Denfert, who he married in 2008.

5. I do not propose to summarise all the orders made in this matter, a number of which were directed to ensuring the mother complied with orders to produce the child at the court and with orders that the child spend supervised time with the father.  In a number of judgments, the court expressed significant concern about the child’s development, about the mother’s refusal to be involved in a psychiatric assessment, about the child’s appalling record of school attendance and about the child, herself.  The evidence of Ms W in a family report dated 20 February, 2009 was that the child was a conflicted, frightened and profoundly insecure child.  She was seriously obese and her personal care was deplorable.  Ms. W was very concerned about the child’s well-being and development and about upbringing and living arrangements which had resulted in her then presentation. 

6. On the evidence before me on 18 March, 2009, I ordered that a recovery order issue to find and recover the child, who by then had disappeared with the mother.  Until further order she was to live with her father.  Ms. W gave oral evidence on affirmation that day, which was transcribed;  the father, too gave oral evidence on oath, which was transcribed. 

7. In her report of 20 February, 2009 Ms. W recommended she see the child with the father on two more occasions.  Acting on that recommendation, the court ordered the mother to bring the child to the registry on 17 March, 2009 and 7 April, 2009, to meet with the father in Ms. W’s presence.  Neither the mother nor the child attended on 17 March;  despite numerous attempts, Ms. W was unable to contact the mother on wither of the two telephone numbers the mother had provided to the court.  Ms. W contacted the child’s school and learnt that the child had not been at school since 23 February.  Correspondence from the court, including the family report, was returned marked “return to sender”. 

8. On 24 April, 2009, Bennett J. issued a warrant for the arrest of the mother.  On 30 April, 2009 the mother was arrested.  It was only then that the recovery order issued on 18 March, 2009 was executed.  The child went to live with her father. 

9. Before Bennett J. on 1 May, 2009 the mother signed a recognisance and was released on condition requiring her to obey the orders made that day, which included orders not to contact or communicate with the child without the father’s consent and not remove her from his care.  The recognisance included no note of an adjourned date and imposed no obligation to appear on the adjourned date which, as ordered by Bennett J., was 13 May, 2009, with an earlier mention on 6 May, 2009.  I release the mother from that recognisance. 

10. On 6 May the mother appeared before Senior Registrar FitzGibbon, as did the father and the independent children’s lawyer.  The date of 13 May, 2009 was vacated and liberty was granted to apply to the Magellan Registrar for a relisting.  His Honour’s reasons note the mother’s advice that she had consulted solicitors and was very concerned about the child’s move to her father’s home;  that there were no applications then before him for interim orders or directions;  and that the case was listed for a pre-trial conference before the Magellan registrar on 25 May, 2009. 

11. As ordered, the father brought the child to see Ms. W within two weeks of her moving to his care.  Ms. W prepared another report, dated 15 May, 2009, which was released on 18 May.  It indicated that the child had settled very well into her father’s residence.  She had changed schools.  She was about to start some counselling. There was already a significant improvement in the child’s presentation. 

12. The registrar’s court record of the conference on 25 May, 2009 records prior discussion of the potential for the mother to see the child at the Y Contact Service and for Ms. W to be involved in the reintroduction of the child to her mother.  It was agreed an updated family report would be required for the trial.  It is clear the aspiration was for the child to start seeing her mother and to give them an opportunity to settle back into a relationship prior to a trial.  All parties were represented that day.  The registrar recorded an agreement as to the necessity for a psychiatric assessment of the mother and that such an assessment was being “organised” by them. 

13. At that time the father had completed the forms to use Y Centre, as previously ordered.  The mother had not. 

14. On 9 October, 2009 an updated family report was ordered and the ICL was requested to obtain a report from Y Centre, which was to be provided to Ms. W.  The parties were ordered (not requested) to attend on Ms. W.

15. The updated family report prepared by Ms. W is dated 18 January, 2010 and is attached to an affidavit affirmed by Ms. W on 19 January, 2010.

16. On 13 January, 2010 the ICL filed an affidavit sworn by Ms T on 8 January, 2010 to which is annexed a report on the mother’s supervised time with the child at Y Centre.  The evidence is of the mother cancelling the next scheduled supervised visit at Y Centre, which was to occur on 16 January, 2010. 

17. The matter was listed for hearing in these sittings.  The mother failed to attend the trial notice listing with the Magellan registrar on 27 January, 2010. 

18. On 29 January, 2010 the solicitors for the father wrote to the mother confirming the trial was listed to commence at 10:00 am. today and advising of instructions to seek final orders (in the terms of an attached minute) on an undefended basis if she did not attend.  The letter was sent to the mother’s address for service set out in the notice she filed 1 May, 2009, and to an earlier address provided by the mother. 

19. In her most recent report Ms. W summarises and concurs with the evidence of Ms T, that the reintroduction of the child to her mother at Y Centre went well.  Fortnightly visits occurred from 12 September, 2009 to 21 November, 2009, save on 10 October, 2009 when the mother rang to advise she was unwell.  The visits had proceeded quite satisfactorily and without apparent incident, save on a few occasions when the child had requested the supervisor’s assistance to change the topic that her mother was discussing with her.  On one occasion it was about the abuse of drugs and sexual matters;  on another, her mother’s desire for her to return to live with her. 

20. Despite repeated recommendations by the family consultant for psychiatric assessment of the mother, and apparent agreement in May 2009 that this would occur, the mother had not been psychiatrically assessed.  Funding was not available for it through Victoria Legal Aid.  The mother told Ms W, when she saw her in January this year, that while she had attended counselling for a period after the child was taken from her care, she did not believe she had any need of any further counselling or psychiatric assistance.

21. Ms. W’s evidence is that in January 2010 the child presented as strikingly different to the child who was initially interviewed by her and Ms H in February 2009.  Her manner was bubbly and confident.  Her appearance had changed dramatically;  she was almost unrecognisable as the obese, ungainly child who appeared so uncomfortable when she first came to the court.  The child has lost 17 kilograms since being placed in the care of Mr and Mrs Denfert as a result of healthy eating, sporting activities and generally living a less sedentary life.  She presents as, and is, a fit and healthy adolescent, who takes pride in her appearance and delight in the changes in her life.  She giggled frequently when she was with Ms. W and her father and step-mother, and was highly animated at all times.  She has a great creative capacity but no longer has to retreat into a fantasy world to cope.  She is enjoying school, and is progressing extremely well after repeating grade 4 and catching up on the work she missed as a consequence of so many absences in her mother’s care.  The child spoke excitedly about the faith of her father and step-mother.

22. The child continues to demonstrate that she is an intellectually bright child, capable of good logical thinking and quite focussed discussion.  She indicated she feels safe and cared for with her father and step-mother, in a way that she has never felt before.  Whilst she loves her mother, the child was clear that her need is to live with her father and step-mother, and spend some limited and supervised time with her mother. The child’s maturity is demonstrated in the acknowledgement she made to Ms W of some difficult times, on occasions, with her father and step-mother;  she saw these as normal and as happening more in the early days after she moved to live with them.  It needs to be remembered that that was a move to live with a man and a woman who the child had been brought up to believe were monsters;  according to her mother, they would harm her and had no genuine interest in her welfare. 

23. The child told Ms. W she wanted to see her mother less often. The predominant reason for that appeared to be the difficulty she has in coping with her mother harking on adult issues and the past;  on the impact on her (the mother) of her loss of the child;  and, more particularly, the mother’s failure to understand what life was like for the child, moving between two worlds.

24. The child believes her mother has psychological problems but she also believes that her mother knows what she is doing.  She told Ms W, “She can stop it.”  The child is still struggling to make sense of some of her mother’s behaviour prior to being placed in her father’s care and her realisation that her mother’s stories about her father, many of which she started to believe, were not true.  The child has been attending counselling for some months to deal with these issues.  That said, the child greeted her mother warmly, was very affectionate with her, a response borne out by Ms. T’s report.

25. Ms. W’s evaluation on pages 7 and 8 of her final report is in these terms :

    51.[The child], now aged twelve has blossomed into a happy, healthy and delightful adolescent who dearly loves all her parenting figures but is quite clear that her secure base at this point in her life is with her father and his wife. 

    52.[The child’s] dilemma and her position regarding her parents is best summed up in her own words as noted above.  That is, when speaking with her mother [the child] asked her to stop talking and listen, apologised for being about to hurt her feelings and then stated “I want to live with my dad till I grow up and marry.  As long as I am a child and need care.  I want to see you, not live with you!”  The manner in which [the child] did this epitomised her desire not to hurt people she loves but also the intensity of her need to be heard and allowed to feel safe and ‘cared for’ above all else.

    53.Whilst [the child] has expressed wishes in the past to this Family Consultant, such as wanting never to see her father and step mother again and that she did not have to have her father’s DNA it was evident then that the views expressed by [the child] were that of a conflicted, frightened and profoundly insecure child.  The views that [the child] are now expressing are those of a normal, pubescent girl who continues to need security and has found this in the care of her father and stepmother and has a deep need for certainty that this will continue. Her views are both genuinely held and entirely appropriate. 

    54.Just as [the child] has a deep need for her life to continue on the course it is running with [the father] and [the stepmother], she also needs to believe that her mother continues to love her despite that need and her own pain at losing her.  This Family Consultant has considerable concern, given the comments that [the mother] made about stepping back, having another family and her own suffering, that [the mother] may, as she did for some months after [the child] was returned to her father, withdraw from [the child’s] life.  Should she do so, this would be about meeting her needs and not those of her daughter. 

    55.Because spending time together and then leaving each other is quite painful for both mother and daughter it may assist both of them to have the time together occurring less frequently than it does at present, that is, on a monthly basis.  Until such time as [the mother] is able to reflect on the manner in which her own issues impact on [the child] it would seem that it is essential time spent remains professionally supervised. 

26. Ms W’s recommendation is that the child continue to live with her father and spend time with her mother at a contact centre on one Sunday a month.  She recommended the mother consider seeking psychiatric assessment, and that the father and step-mother pursue the possibility of engaging in further parenting after separation courses, through the counsellor who the child presently attends.

27. When the parties saw Ms W in January 2010, Ms W was very concerned about the mother’s apparent inability to understand the effect on the child of her moving in and out of the child’s life.  She spoke to the child about moving out of the child’s life, of “moving out of the picture”.  She said she would have her own family, a reference to a new family, excluding the child.  She did say she would miss the child and love the child and wake up thinking of the child.  She offered not to have contact at Y Centre the following week but Ms. W told her that it was vital that contact occurred.  Unfortunately, the following week, the mother cancelled the contact visit scheduled for 16 January, 2010.

28. On 30 January, 2010, the next scheduled visit, the mother did not turn up at Y Centre.  Valiant efforts by contact centre staff to find her were to no avail.  Y Centre cancelled the next scheduled visit (13 February) as they had been unable to contact the mother at all. 

29. Before the court is a letter from Ms. T dated 9 February, 2010, relating to the non-attendance on 30 January, 2010.  Workers made three phone calls to the mother on 28 January.  The father brought the child to Y Centre on 30 January.  Workers then rang the mother twice, but were unable to contact her.  It is very, very unfortunate for the child.  She went to Y Centre, looking forward to seeing her mother, who she loves.  She is aware of her mother’s problems and has demonstrated a mature capacity to accommodate them.  Her mother let her down, again.

30. I place significant weight on the evidence of Ms. W and Ms. T. 

31. While the court must place weight on the importance of maintaining a meaningful relationship between a parent and child, it also must place weight on protecting a child from exposure to physical and emotional risk.  Those are the primary considerations when assessing where the child’s best interests lie.  The court must also take into account the additional considerations set out in the Family Law Act 1975.

32. There must be an end to litigation.  The outcome of the child’s move to the father’s care has been dramatic, and dramatically to the child’s benefit.  She is very fortunate to have the support of a loving father and a remarkably able and loving step-mother.  In their care, she is thriving.  The court can find that if the mother is able to put aside her own obsessions and problems, and act responsibly and in a committed and consistent way, the father and step-mother will encourage the child to have a relationship with the mother, in ways that are consistent with the child’s physical and emotional safety.

1. In earlier judgments I have referred to the mother’s allegations and to the inappropriateness of the father’s admitted conduct in the past.  He was frank with Ms. W about having to learn how to discipline the child since she has returned to his care.  Their loving and confident interaction is a testament to the progress they have made. 

2. The court can say little of the child’s relationship with members of her mother’s extended family. 

3. I am satisfied the father has the capacity to attend to the child’s physical, intellectual and emotional needs, as does the stepmother. The child’s transformation is illustrative of this.  The court must find that the mother was not able to attend to these needs when the child was in her care and that, as a result, the child suffered physically, emotionally and intellectually.  It must also find that there is an unacceptable risk the child will be exposed to continuing harm in her mother’s care. 

4. There is no point in the court speculating on the reasons behind the mother’s inadequate and destructive parenting. The court has evidence of the consequences of that parenting and the child must not be exposed to the potential for a repeat of it.  Her protection from the risks inherent in that must be a priority. 

5. The mother has been called three times today.  She has failed to appear.  In my view, the court has no option but to make final orders today, as sought by counsel for the father, and supported by the independent children’s lawyer.  I make those orders, finding that the father will do his best to ensure that the mother remains a real presence in the child’s life, even when she is not a physical presence; that he will not try to cut the mother out of the child’s life;  and that he will support the child in pursuing a relationship with the mother, so long as the child can be protected from emotional and physical harm.

6. If the mother seeks to play a role in the child’s life, the child’s best interests require her father to be in a position to place limits around their time together, whether those limits relate to supervision or the length of time or the place at which it is spent. I note advice from Y Centre that it could not accommodate monthly visits, as envisaged by Ms. W, and that a limited number of fortnightly visits were available. 

7. I am satisfied the father should have sole parental responsibility for the child, having regard to the mother’s inability to put the child’s interests ahead of her own and her current abdication from the child’s life.  It is rare that a court has before it such compelling evidence of the detriment to a child of inadequate parenting and the benefit to a child of more than adequate parenting. 

8. I put on the record the court’s thanks to the independent children’s lawyer.  In a difficult and sensitive case, it has been of very great assistance to have an independent children’s lawyer who is not only able, but creative, objective and focussed always on the child.  That has accrued to the child’s benefit.

9. I would also commend the solicitor for the father.  I do not commonly comment on legal practitioners but this has been a particularly sensitive matter.  She has taken seriously her obligation to the court, as well as her client, and at no stage sought to take advantage of the mother’s difficulties in grappling with the litigation.  The application for orders to be made on an undefended basis could have been pressed a long time ago.  The fact it was not is almost certainly due to sensible legal advice to the father and his preparedness to focus on the child and bide his time. 

I certify that the preceding
41  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2010.

…………………………………………
Associate.