Denfert and Avron (No. 3)

[2009] FamCA 253

FAMILY COURT OF AUSTRALIA

DENFERT & AVRON (NO. 3) [2009] FamCA 253

FAMILY LAW  -  CHILD  -  mother required to produce child to family consultant  -  child not produced  -  child not at school  -  evidence from family consultant  -  significant risks to child’s emotional well-being  -  ex-parte application to move residence  -  child to live with father  -  recovery order to take possession of child

Family Law Act 1975 (Cth)

FATHER: Mr Denfert

MOTHER: Ms Avron

INDEPENDENT CHILDREN'S LAWYER:

FILE NUMBER: MLC 7099 of 2008

DATE DELIVERED: 18 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 18 March, 2009

REPRESENTATION

SOLICITOR FOR THE FATHER : Altavilla Vessali

THE MOTHER: No appearance

INDEPENDENT CHILDREN'S LAWYER: Maria Barbayannis & Co.

Orders

1. That the father have leave to file an application in a case and all times be abridged to allow the matter to proceed ex-parte.

2. That until further order the child … born … September, 1998  live with the father and he be responsible for her day to day care, welfare and development and be responsible for decisions relating to her education and health.

3. That pursuant to s.67U of the Family Law Act 1975 a Recovery Order issue authorising and directing the Marshal, Deputy Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all of the States and Territories of the Commonwealth of Australia to find and recover the child … born … September, 1998 and deliver the said child to the father forthwith, he being the person entitled to have the said child live with him, pursuant to orders made in the Family Court of Australia this day.

4. That until further order the mother, by herself, her servants or agents be and is hereby restrained from removing or attempting to remove the said child … born … September, 1998 from the Commonwealth of Australia  AND IT IS FURTHER ORDERED  that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court. 

5. That as soon as practicable the Court  serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne,  AND IT IS REQUESTED that Australian Federal Police give force and effect to this order. 

6. That save pursuant to order of this court, if the mother by herself, her servants or agents, takes or attempts to retake possession of the child after execution of the Recovery Order, the mother may be arrested without warrant.

7. That until further order the mother be and is by herself, her servants and agents restrained from attending at or within one hundred metres of :

   (a)the father’s home;  and

   (b)any school attended by the child from time to time.

8. That a sealed copy of these orders be served upon the mother :

   (a)by mail, by forwarding by ordinary prepaid post addressed to her address for service;  and

   (b)personally, by a process server employed by the court  AND IT IS REQUESTED  that the registry manager give force and effect to this order. 

9. That the parties forthwith do all things reasonably practicable to apply to use the supervised contact facilities at GordonCare and any other supervised contact centre nominated by the independent children’s lawyer. 

10. That upon acceptance at a contact centre the mother spend time with the child for a period of two hours in each fortnight on a day and at times nominated by the manager of the contact centre and that both parties obey all lawful instructions of the manager or his or her nominee. 

11. That in addition to or in lieu of contact pursuant to paragraph (10) hereof, the mother have time with the child for two hours a fortnight supervised by any other facility or person nominated by the independent children’s lawyer. 

12. That within two weeks of the child commencing to live with the father pursuant to these orders, he contact the manager of Child Dispute Services at the Melbourne registry of the Family Court of Australia and arrange a time or times to attend upon Ms. W with the child for the preparation of another addendum to the family report dated 20 February, 2009. 

13. That the evidence this day of :

    (a)Ms. W;  and

    (b)the father

    be transcribed and copies be provided to the parties. 

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

15. That the father be at liberty to arrange for the child’s attendance upon a psychiatrist, psychologist, counsellor or like professional. 

16. That the application in a case filed this day be otherwise dismissed.

17. That either party have liberty to apply on short notice to the other party.

18. 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.

19. That the preparation of these orders be expedited forthwith.

20. 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

The father’s undertaking that he will not administer any form of physical chastisement to the child.

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. This case concerns the parties' daughter, who was born in September 1998.  She is 10.  The background to it has been rehearsed in earlier judgments.  It has been before the court a number of times and forms part of the Magellan list of cases.  The mother has alleged that the father has physically and sexually abused the child.  Interim orders provide for him to have time with her, supervised by his wife. 

2. The matter was last before the court on 27 February.  On that day the mother did not appear.  As a ruling delivered that day made clear, the mother had faxed a medical certificate to the independent children's lawyer and, in due course, one came to the court.  She advised that she was not able to appear because the child (aged 10) was, according to the doctor, “unfit for work”.  I commented then on the inadequacy of that medical certificate.  No medical certificate for the mother was faxed.

3. Because of concerns about the child’s school attendance, earlier orders required the mother to send the child to school unless she was ill.  School attendance has been an ongoing problem for the child.  An ongoing problem for the court has been getting the mother to court.  A range of ingenious explanations have been proffered for her failure to appear at various times.  The mother applied for and was granted legal aid at one point and was represented by an experienced and able solicitor.  His firm had to file a notice of ceasing to act when they were unable to contact her.

4. I have previously explained to the mother the importance of providing the court with an address for service from which mail is collected.  It does not need to be her home address but it was made clear that she could not simply say, "Well, I didn't pick it up," or, "I didn't get it."  It is her obligation to open mail sent to her address for service by the court or other parties.

5. On one occasion, after a number of earlier warnings, I issued a warrant for the mother’s arrest.  She was arrested and spent a night in the cells before I released her on her undertaking to comply with a number of conditions.  She did comply with the bulk of those conditions, albeit late, in respect of the production of the child for the purpose of preparation of a family report.

6. A family report has been prepared by Ms W, dated 20 February 2009.  In Ms W’s professional opinion the child is a troubled child, torn between her two parents.  The child is, quite dramatically, an alienated child, as described by Kelly and Johnston in their research.  A paper by Kelly and Johnston was annexed to Ms. W’s report.

7. Ms W has significant concerns about the mother's capacity to test and distinguish between reality and fantasy.  She was unable to say whether these stemmed from drug-related or mental health issues.  The child endlessly complained about her father and denied any happiness in his company, but those complaints (in Ms W’s assessment) had a wooden and brittle aspect and the child frequently used adult words and phrases.  The child denigrated, often viciously, her father, and appeared sometimes to be enjoying herself, without any obvious regret.

8. In Ms W’s opinion the child clearly believes that she has the power and, indeed, the awesome responsibility to make her own decisions about her father, insofar as they align with her mother's views and decisions.  Her mother has clearly handed power to her, and her mother's view is that the child has a right to choose, so that court orders can be flouted.

9. In that report Ms W set out the significant danger to the child’s emotional and social development of this degree of alienation and rejection of authority.  The child is not a mature child.  Whilst Ms W did not find her to be unintelligent, the child has limited resources to cope with the challenges she faces and is caught in a bind.  If she admits to loving her father, she may lose her mother.  That is an intolerable position for her to be in and her only way of dealing with it has been to reject her father and his new wife, and reject every positive thought about him.

10. The last orders were made in the mother's absence, in the circumstances to which I have adverted.  They were served on her at her address for service.  They have not been returned to the court.  A copy of the family report was sent by registered post to the mother’s address for service and has been returned by Australia Post, unclaimed.

11. The child was to see Ms W at 3.30 pm. yesterday, and to be observed with her father.  She was not delivered to the child-minding room.  Ms W made at least six phone calls to her on the previous two days, to the number the mother gave the court and to another number which she obtained from the child’s school.  There was no reply on either number.

12. The court has endeavoured to contact the mother twice since ordering the listing of the matter yesterday afternoon, without success.  Her phones variously ring out, or have messages that they are turned off or are disconnected.

13. Ms W has given evidence today, which I will have transcribed.  It raises significant concerns.  Ms W spoke to the school yesterday.  Initially, she spoke with the bursar, who told her that the child has not been at school since 23 February;  the bursar believed that this was because the mother and children “were experiencing chicken pox”.  If that is the case, it is a very long bout of chicken pox, assuming that the doctor’s certificate faxed on or about 26 February to the ICL related (as the mother asserted) to chicken pox.  The child’s teacher had a similar understanding.  It was the first time Ms W spoke with the child teacher, rather than the school principal, and what she was told concerned her greatly.

14. The teacher told Ms W that even when the child is at school, “she is not there, either”.  That is, the child is not engaged;  she has no concentration.  While the child is bubbly at times, that is a very superficial presentation, in her teacher's opinion.  At times out of the blue, completely without context, the child will suddenly blurt out something like, "I hate my father."  The teacher has considerable concerns about the child’s emotional wellbeing.  So does Ms W.

15. Ms W was able to see the father and his wife again when they came for the appointment yesterday.  Both had read the article Ms W annexed to her affidavit.  Both told her they had found it helpful and discussed it, with seriousness and intelligence, with Ms W.  Ms W thought that both had gained real insight from the article and had considered the implications of the child’s position on them, if the child came to live with them, and on the child in the future.

16. In Ms W’s opinion Mrs Denfert has demonstrated real insight and commitment into the child’s emotional and physical wellbeing.  She is, Ms W said, the strength behind the father.  He is the originator of these applications but he has her wholehearted support and she very much shares his concerns.

17. Today I have allowed the father to file an application, brought ex-parte, for a change of the child’s residence in the interim.  Asked about the viability, Ms W spoke of a great deal of resistance and thought that the Federal Police would need to be involved to initially move the child to her father's care.  From her discussions with the father and his wife, and having regard to the perceived depth and basis of his relationship with the child in the past, she had some confidence that a move would not necessarily be as difficult in the longer term.  She thought the relationship in the past would stand them in good stead.  She supports a move.

18. In Ms. W’s opinion the child will still feel a need to be oppositional because she is struggling with a huge guilt;  if she loves her father and her stepmother, she will be betraying her mother.  Ms W spoke of the potential for the tension not to be so great in the child’s relationship with her stepmother, because the alienation is very much a choice between mother and father, rather than others.

19. Ms W also spoke of the child, despite the difficulties and the behaviour she demonstrated when with Ms. W and Ms. H, relating quite well with both her and Ms H.  Ms. H is another family consultant who was involved when the child came with her mother to the court to be interviewed and observed for the family report.  In Ms W’s opinion there is a real possibility the child could settle down very quickly in her father’s home, particularly if the evidence of her past desire to be part of the marriage of the father and stepmother, and part of their life, is accurate.

20. It is of considerable concern to the ICL, as well as Ms W, that the child is not going to school.  Ms W is also extremely concerned about the child’s emotional wellbeing, given what she now knows about her presentation at school.  School may be a neutral and safe place for the child but it does not seem to be one in which she is functioning well.  That, in a sense, takes away the only comfort that had been there for Ms W, prior to speaking to her teacher.

21. Ms W has real concerns about the child’s physical wellbeing, too.  She is an obese child;  she has a lack of interest in her body and her physical wellbeing. 

22. Ms W was asked about the potential for the child to run away, if ordered to live with her father.  She spoke of her own attempts to contain and calm and direct the child, and said that the child was not entirely unresponsive to those attempts.  In Ms W’s opinion, the child clearly wants someone to stop the “out of control behaviour” which she feels expected to provide;  there is “a glimmer of positive communication there”.

23. Ms W spoke of the usefulness, if the child’s residence were changed in the interim, of the father bringing the child back to see Ms W or, if she were unavailable, Ms H, after a couple of weeks in his care.  She also spoke of the need for an interregnum, of no time with the mother, but of the importance of the child spending some time with her mother in the future.  In Ms W’s opinion that would need to be supervised.  That causes problems, having regard to the availability of time at a supervised contact centre.

24. I place weight on Ms W’s expression - a colloquial one, but said with a great deal of warmth - that the child is a good kid.  It is not the child’s fault that she finds herself in this position.  The child needs to be protected;  she deserves stable, secure and consistent parenting.

25. I have in the past summarised the important legal principles.  I do not propose to do that again, save to say the court has to balance the importance of protecting the child from physical and emotional harm with the importance of maintaining a meaningful relationship with both parents.

26. The mother's case has been that the potential for harm lies in the father's house.  The court cannot lose sight of the fact that the mother’s allegations in this case are of sexual abuse.  The father has admitted to physically disciplining the child in the past and conceded this was inappropriate.  He has given evidence of speaking with the child about this as early as March 2008, and of agreeing, after discussions with those more experienced than him, that the child was too old to be physically disciplined or smacked.

27. It is not the time for the court to digress into whether children are always too old to be physically disciplined or smacked.  That is a live issue in the community.  The father has undertaken that he will not behave in that way to the child in the future, whatever provocation may arise.

28. There is also evidence of an occasion when the father masturbated when the child was in his bed.  He conceded that from the outset.  His evidence was that the child was asleep but he has admitted the significant inappropriateness of that behaviour.

29. Since then, the father has married.  I do not suggest that marrying is a panacea in these cases.  The sad reality is that some people sexually and physically abuse children and do so regardless of their personal marital circumstances.  It is a question of balancing the risks.

30. To move a child in the interim is a very significant thing to do, particularly when serious allegations have not been, and cannot be, determined.  However, in my view, the balance has shifted.  In my view the potential damage to the child’s emotional and physical wellbeing in her current situation is very significant.  Ms W’s report gives a graphic picture of a very distressed girl, who could turn into a very damaged girl if this situation continues.  At the moment there is an unacceptable risk to the child if the status quo continues.

31. I spoke at the last hearing of the potential for an undefended trial, if the mother simply refuses to engage with the litigation.  She knows nothing of the hearing today, but that is not because the court has not done its best to tell her.  I proceed on an ex-parte application, of which the mother has no notice.  The court has done everything it can to advise her of the hearing.

32. Balancing the evidence before the court, taking into account the allegations made by the mother, the DHS report which was admitted into evidence earlier, the family report, the evidence I have heard from Ms W and the father, the competing allegations, the support of the ICL for a move, the safeguards offered by the stepmother’s presence in the home (by which I do not suggest her role in life is as a policewoman but the confidence Ms W has expressed in her), I am satisfied that orders should be made providing for the child to move to live with her father.  Only by such orders can her best interests be protected.

33. It would be premature to make orders which require a determination as to whether the presumption of equal shared responsibility applies, or is rebutted.  This is an ex-parte application.  However, the father must have responsibility for decisions relating to the child’s education and health in the interim.  He will need to deal with education authorities and may need to arrange medical or therapeutic interventions for the child.

34. A recovery order will issue to collect the child and deliver her to her father.

1. This case is next before me (pursuant to earlier orders) in May.  That is the first day I will be sitting in the registry after Easter.  If the case needs to be listed after 8 April, it will have to be listed before another judge, whether Bennett J (the other Magellan judge) or a judge nominated by Cronin J who is the case management judge.

2. I will grant liberty to apply.  What is important is to get the case on for trial.

3. Those orders will be expedited and the recovery order will be sent to AFP as soon as possible.  It is unlikely AFP will be in a position to execute the recovery order tonight and it would be better for the child if it can be done in daylight hours.  That may not be possible and the court does not interfere with AFP’s work, which they alone must prioritise. 

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

Dated the           day of            2009.

…………………………………………
Associate.