DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & JAKERMAN

[2019] FamCA 212

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & JAKERMAN [2019] FamCA 212

FAMILY LAW – CHILDREN – Parenting – where there are two children – where it is agreed by the parties that the father shall have sole parental responsibility for the younger child and that she will live with him – where it is agreed by the parties that the Minister for Family and Community Services shall have sole parental responsibility for the elder child – where the father’s position at trial was that the elder child engage in a course of reintroduction therapy with him – where, during the course of submissions, the father accepted the force of the reasoning underpinning the submissions made on behalf of the Applicant and the Independent Children’s Lawyer – where the Orders intentionally make no provision for the elder child to spend time or communicate with the mother or father – where the Independent Children’s Lawyer will explain the Orders and accompanying Reasons to the elder child.

Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637
Donnell v Dovey (2010) FLC 93-428

APPLICANT: Secretary, Department of Family and Community Services

RESPONDENT: Mr Jakerman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: LEC 587 of 2007

DATE DELIVERED: 9 April 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 1 and 2 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Life Law Solutions

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous parenting orders are discharged.

2. The Minister for Family and Community Services (“the Minister”) shall have sole parental responsibility for the child, X, born … 2006 (“X”).

3. The father shall have sole parental responsibility for the child, Y, born … 2008 (“Y”).

4. X shall live as directed by the Secretary, Department of Family and Community Services (“the Secretary”) or his delegate.

5. Y shall live with the father.

6. Subject to Order (7), Y shall spend time with the mother on one occasion per month for a duration as agreed between the mother and the father, or in default of agreement for a duration of two (2) hours. Such time will be unsupervised and changeover shall take place at the Town E Courthouse or a venue agreed between the mother and father.

7. Not less than 24 hours prior to spending time with Y in accordance with Order (6), the mother shall email or text message the father confirming her attendance.

8. The Secretary’s delegate will use his or her best endeavours to support the relationship between X and Y and will facilitate that they spend time together.

9. The Secretary or his delegate will not encourage or support any future involvement of X with the B Organisation.

10. The mother and father are each restrained from denigrating the other parent, any member of that parent’s family or any aspect of the other parent’s spiritual or religious belief in the presence of or within the hearing of either of the children and each parent will use their best endeavours to prevent any third party from doing so.

11. Unless otherwise agreed to in writing by the Secretary or his delegate, the mother and the father are hereby restrained and an injunction is hereby issued restraining each of them from:

    (a)       entering or approaching:

    (i)within 200 metres of the residence of X;  and

    (ii)any educational institution attended by X;  and

    (iii)any venue where X is participating in extra-curricular activities;  and

    (b)contacting X or her carers by any means other than in accordance with these Orders.

12. The Independent Children’s Lawyer shall explain the Order made today and the Reasons for Judgment delivered today to X as soon as reasonably practicable.

13. In order to give effect to Order (12), the Independent Children’s Lawyer shall liaise with X’s caseworker to arrange a time when the Independent Children’s Lawyer can meet with X and her caseworker via Skype or other agreed means.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT

(A)These Orders intentionally make no provision for the child X to spend time or communicate with the mother or the father. If, when, and how the child may do so are decisions the Minister or his delegate shall make as an incident of the Minister’s sole parental responsibility for the said child.

(B)The Secretary or his delegate will provide the mother and father with information relating to the care of X, including issues relating to her educational progress and major medical treatment.

(C)Nothing in these orders prevents any incidental interaction between the father and X when the father is delivering Y to, or collecting her from, the maternal grandparents.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Jakerman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 587 of 2007

Secretary, Department of Family and Community Services

Applicant

And

Mr Jakerman

Respondent

And

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These Reasons need not traverse the lengthy history of litigation involving the children the subject of the proceedings. This is because, during the course of making his submissions, the father outlined that he accepted the force of the reasoning underpinning the submissions made on behalf of the Applicant and the Independent Children’s Lawyer and, in essence, acceded generally to the orders proposed by the Applicant.

2. Even if this had not been the position, the evidence before the Court persuades that, subject to matters discussed below, such orders are in terms that are proper[1] and in both children’s best interests.[2] In arriving at this conclusion I have, as required, considered each of the relevant s 60CC considerations[3] in the manner required where there are parenting proposals by a ‘parent’ (the father) and ‘non-parents’ (the Department).[4]

   [1] s 65D of the Act. 

   [2] s 60CA and s 65AA of the Act.

   [3] That is, I have taken note of them, given heed to them, thought over them and reflected upon them; that I have done so does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion: Banks v Banks (2015) FLC 93-637: whilst said in the context of a consideration of interim proceedings, there is no reason to think that the underlying principle does not apply to the final disposition of proceedings.

   [4] See Donnell v Dovey (2010) FLC 93-428, where the Full Court considered the manner in which Part VII of the Act is to be applied in such a situation; I note that any intermingling in the discussion of the relevant evidence and the considerations should not be regarded as demonstrative of any confusion as to the appropriate application of these binding principles.

3. It is accepted that it is in X’s best interests to have the orders and these accompanying Reasons explained to her by the Independent Children’s Lawyer during a time she meets with the caseworker assigned to her by the Applicant. That being the case, these Reasons are intended to serve two purposes: obviously, to provide sufficient appreciation of the bases on which I have determined that the orders to be made are in the children’s best interests and – almost more importantly, given the facts of this case – to provide to X an understanding of the context within which the decision was made, in the hope that, in the future, she may choose to commence a relationship with her father and members of the extended paternal family in whatever way she determines best meets her needs.

4. Whilst the father’s position was, ultimately, as outlined, I accept that the process he underwent in order to be able to voice his acceptance of this position was a difficult one for him; I accept that this difficulty arose because of his steadfast wish to be involved in X’s life. I accept that he desperately wants to be able to commence a process of renewing a relationship with her. I also accept, though, that he ultimately accepted that, if he did not decide to step back from his desire to have X (who was born in 2006) participate in some form of re-introductory therapy with him, the prospects of her ever deciding that she wanted to re-engage in a relationship with him and members of her extended paternal family was even more remote than it currently is.

5. As Mr C (a Family Consultant who prepared four Reports in this matter, dated: 29 November 2013, 1 April 2015, 12 October 2016 and 11 February 2019) said, if orders sought by the father were made and X continued steadfastly to refuse to engage with her father, there would be nowhere else to go after that.

6. I accept that the father’s decision not to press for orders that X be somehow required to engage in a course of re-introductory therapy with him now does not reflect any disinterest on his part in renewing the relationship between them; I accept that he would gladly take steps to renew such relationship. I accept that his motivation in seeking the orders that he originally did was primarily because he considers that it is in both children’s best interests to be able to have the opportunity to have ongoing relationships with each of their parents. I accept that he also genuinely considers it important for X’s future development, as she approaches her teenage years and then into her early adult years, that she does not grow up thinking of him as all “evil”, as he fears she does or might because of her mother’s influence.

7. I accept his evidence that he is very proud of X’s achievements. I accept that he knows she is a very intelligent child, who has excelled academically and who has demonstrated significant sporting prowess. He told Mr C he was pleased she had obtained a scholarship to the school that she attends; during his cross-examination, he accepted that X is a bright girl who had been the dux of her primary school last year; he noted that she had every reason to be happy with and proud of her academic and sporting achievements. He also readily accepted that she has the intellect to pursue a degree at University J; he was definitive in saying that there was no question that she is an extremely bright child.

8. I consider it more likely than not that, when asked to look at a photograph of X in her current school uniform during his cross-examination, he was overcome by feelings of pride in her.

9. Whilst the father accepted that the Applicant should have sole parental responsibility for X (albeit that he sought to be able to provide input into any major long-term decisions to be made in the exercise of that responsibility – a matter I am not persuaded is in X’s best interests given her current attitude to her father), the Applicant’s presence in these children’s lives is not the consequence of a particular decision on his part.

10. Rather, it was a role thrust upon the Applicant by the decision made by the children’s mother, in March 2016, to surrender them into the Department’s care.

11. Such decision was made after the parents agreed to final orders being made in December 2015. The lengthy and detailed December 2015 consent orders contain a record that the findings of fact noted by the Court included that the children were not at an unacceptable risk of harm due to sexual abuse in the care of their father.

12. The December 2015 consent orders provided, amongst other things, for the mother to have sole parental responsibility for the children; for the children to live with her and for there to be re-introductory therapy between the children and their father. That is, re-introductory therapy was something agreed by both parents as being in the children’s best interests.

13. In broad summary, the relevant aspects of the December 2015 orders provided for the Applicant to organise a referral to a named psychologist (or another if he was unavailable) who would act as the reintroduction therapist “to engage with the mother, father and the children for the purpose of reintroduction of the children to the Father”; that, within fourteen days of being notified of the reintroduction therapist’s details, both parents were to do “all acts necessary to commence engagement with the therapist”; that the mother and the father must engage with and attend upon and comply with the recommendations of, and cause the children to attend upon and use their best endeavours to cause the children to comply with the recommendations of the reintroduction therapist at such times and at such frequency as is required by the reintroduction therapist and/or directed by the Applicant until the reintroduction therapist formed the view that the therapy was no longer required; and that the parents would share equally in the costs associated with the reintroduction therapist.

14. The December 2015 orders also made it clear that, once the reintroduction therapist formed the view that therapy was no longer required, the Applicant was to obtain a report from that person certifying attendance and completion of the therapy and, thereafter, would consider whether unsupervised time between the father and the children would commence in the manner specified elsewhere in the order.

15. There is no doubt that the agreed terms of the December 2015 order contemplated the children re-engaging with their father if reintroduction therapy was successfully undertaken; there is also no doubt that the mother consented to these terms, which clearly imposed on her various positive obligations to support the process of reintroducing the children to their father, in the context that at least one of the possible outcomes was that they would resume spending time with him.

16. I consider it much more likely than not that the mother’s decision to place the children voluntarily into the Department’s care came just as it appeared that the process of re-introductory therapy was poised to begin. Her decision meant that such process was interrupted by the much more pressing need to place the children; I accept that, for X, her mother’s decision meant that she was first required to live in a placement that ultimately failed, before she was placed with her maternal grandparents. I think it much more likely than not that the reality of their geographic distance from where X and Y were then living resulted in a further disruption to the therapeutic process that had – at least ostensibly – been agreed to by the mother, as reflected in the terms of the December 2015 consent order.

17. The reality though is that, despite the ostensible parental agreement for re-introductory therapy between X and her father, she has not seen him or spoken to him since about November 2015, other than on occasions of incidental interaction associated with him collecting Y from the maternal grandparents’ home.

18. The mother’s decision also meant that X and Y (who was born in 2008) were separated. I accept that, from about late 2016 until earlier this year when she started to attend a boarding school in Sydney, X lived with her maternal grandparents.

19. I accept that, after a process implemented by the Department, Y (who is cognitively delayed, and has multiple medical conditions) has lived with the father since late 2016. I accept that the Applicant agrees to orders which will accord to the father sole parental responsibility for Y and that she live with him. I note that, in his February 2019 report, Mr C did not identify anything to indicate Y is at risk of harm or neglect in her father’s care.

20. Given the agreement between the Applicant, the father and the Independent Children’s Lawyer that it is in Y’s best interests for there to be an order about her time with her mother, I am prepared to make the same. However, I record that, given the mother’s decision to discontinue her involvement in the proceedings in the lead up to the hearing (she filed a Notice of Discontinuance on 16 January 2019), absent such agreement I would have considered it in Y’s best interests simply to permit her father to make the decision about her interaction with her mother in the exercise of the sole parental responsibility accorded to him.

21. I accept that the father considers it to be in Y’s best interests for her to have ongoing time with her mother and that it is in both children’s best interests that they have the opportunity to spend time together. Such opportunities are limited by the fact that X will be living in Sydney at school during school terms and, during school holiday periods, will likely stay with her maternal grandparents who live in Town D, whilst Y lives with her father in Town E.

22. I accept that the Applicant intends that X stay with her maternal grandparents during school holiday periods. I also accept that the Applicant has previously supported X in spending time and communicating with her mother, who now lives in Brisbane. I accept that it appears that X has contact with her mother on a monthly basis (for varying lengths of time) and that she more recently spent nine consecutive days in her care in January 2019.

23. Whilst the father maintained his very strong concerns about X’s exposure to the tenets of the B Organisation during any time she spends with her mother or during any other communications with her (and certainly did not resile from his position that it is a cult and that it is not in X’s best interests to be further exposed to its tenets), he was equally strident in disavowing any suggestion that orders should be made to prevent X from communicating or spending time with her mother: I accept that he considered that it would not be in X’s best interests for her to be prevented from communicating or spending time with her mother.

24. I accept that it was really as a result of his insistence that the Applicant first proposed that a notation be made in terms that “the Secretary or his delegate will not encourage or support any future involvement of [X] with [the B Organisation] teachings” and later agreed to such notation being an Order. I consider that an order about how the Applicant will approach the issue of X’s future exposure to the tenets of the B Organisation, in the terms initially proffered as a notation, is an order in X’s best interests.

25. I also note that the father accepted that the maternal grandparents had not provided X with any encouragement to maintain any involvement in the B Organisation; he also said that members of the extended maternal family resident in Sydney, with whom X might spend time during school terms were not involved in such beliefs and, in fact, did not maintain relationships with the mother. I also note that he accepted that it was highly unlikely that the boarding school at which X now attends would support her in maintaining any connection with the B Organisation or its tenets and that, given the school’s focus on educating its students to apply analytical thinking in their lives, attendance there may well ensure that X is able, over time, to form her own views about the B Organisation, as well as other aspects of her care to date.

1. I accept the evidence given by Ms F, X’s caseworker, to the effect that, if X said that she wanted to communicate with her father or spend time with him, she would facilitate the same; I accept that Ms F is in possession of the father’s contact details and that these can easily be made available to X if she wants to access them in the future.

2. I accept that the father considers that, to X’s benefit, the maternal grandparents provided her with many opportunities to engage in activities during the time she lived with them; I also accept that, generally speaking, he considers them to have been generally supportive of his relationship with X, in that they have previously had polite and friendly conversations with him in front of X when he collected Y from spending time with her. He said he was grateful to the maternal grandparents for giving X stability and refuge.

3. I accept that, in reaching the position he expressed during his submissions, the father accepted the tenor of the evidence given by Mr C in his Family Reports and during his cross-examination.

4. I accept Mr C’s evidence. In particular, his most recent report (February 2019) contains his assessment of, and opinions about, X.  I consider the essence of these to be as follows:

   a)she is a child who, for years now, has been burdened with a level of emotional responsibility well beyond her capacity; and

   b)she described her enrolment at the boarding school she started to attend this year as being a “fresh start” for her; and

   c)whilst still very pleasant in confidently and clearly expressing her views and thoughts to him, she demonstrated some underlying frustration (which he considered entirely appropriate) which was best captured by her comment that “I’ve been saying things for a long time now and still no one listens to what I want”; and

   d)she is extremely worried about the father or his family attending at her school and did not want him to have her phone number, as she wanted to keep all “that stuff” (which I take to be a reference to the matters associated with her past parenting arrangements) separate from her “new start”; and 

   e)she had previously felt uncomfortable when her father started to talk to her during her past Skype communications with Y; and

   f)when Mr C explored with her the father’s hope that he would like to try and do something that might help them get along with each other, she said “I think I’ve made it pretty obvious that I don’t want to see him. I just think he needs to let it go”; and

   g)she feels like she has consistently said that she does not want to see her father, but no-one has listened to her; and

   h)she has a strong need to remove herself from her parents’ conflict; and

   i)she is able to consider how others perceive her father, independently of how she perceives him.

5. I consider the father’s ultimate position to amount to a reluctant acceptance of the reality that he cannot impose his wish to rebuild a relationship with X on her.

6. I think it highly unlikely that the father will ever let his love for X “go”.  I also think it highly likely that he will maintain his hope that she might, over time, open the door to some sort of relationship and/or interaction with him and her extended paternal family.  Whether she does or not will, I think, likely depend on X’s capacity to form her own views about her past parenting arrangements and parental interactions – a capacity that is likely to develop further as she matures.

7. At present, though, what I consider most important is that X appreciates that her comments have been heard and that her long expressed wishes have been accepted – not only by the Court but, more importantly, by her father.

8. However, the decision to prioritise what I regard as X’s clear current need to be insulated from parental conflict and to have the “fresh start” she has so eagerly embraced does not mean that I have positively concluded she would not likely benefit from future interaction with her paternal family:  it simply means that I accept that her best interests are now served by being accorded the opportunity to take all the positives and benefits she can from her “new start” as she embarks on her journey to adulthood.

9. I also accept the thrust of the evidence given by Ms G (a social worker engaged by the Applicant and with whom X previously had eighteen counselling sessions[5] between April and December 2016) to the effect that:

   a)whilst without beginning a process of contact with the father, X would remain alienated from him, continued counselling for the purposes of modifying this dynamic was unlikely to result in any change in X’s belief system given it then appeared that she had been indoctrinated into the belief structure of the B Organisation (which apparently included that all in the group are elites and all non-believers are ignorant and unawakened); and

   b)she thought then that X would react negatively to any planned contact and would sabotage any planned arrangements but, as she became more secure in her placement with her maternal grandparents, she might relax and, in essence, be more accepting of the incidental interactions with her father that accompanied him transporting Y to see her and such incidental contacts could then increase in frequency and duration; and

   c)she then thought that X might need further counselling as she moved into adolescence and began to develop her own identity and differentiate further from her mother;  and

   d)she then thought that the Applicant could review X’s incidental contacts with her father with a view to gradually increasing the same over a two year period; and

   e)she currently thought that, given that X is quite strong-willed, if she was required to do something she did not want to do, she would likely dig her heels in and “go the other way” and say that she did not ever want to see her father again; and

   f)she thought that, at her age, X was likely to fight all the way if required by the Court to do something she was clearly opposed to doing and that the Applicant could not force her to attend counselling and that it would be too much for her maternal grandparents to attempt to have her attend the same.

   [5] Independent Children’s Lawyer’s Tender Bundle p. 251-6.

10. Ultimately, it will be for X to determine if she chooses to have any future interaction with her father and/or members of her extended paternal family. 

11. I consider that, in the interests of historical accuracy, it is pertinent to record that X previously thought fondly of her father: for example, at nearly 6½ years of age, when asked about her favourite things about her father, she said, “basically everything” before also saying that she wanted equal time with both of her parents – she also said her father let them have anything they wanted, got them lots of toys and would not do anything if she and her sister were naughty;  further, when about seven years of age, her interactions with both her mother and father were positive and encouraging and she was not anxious or avoidant with either of her parents;  when she was nearly eight years old, she told her psychiatrist, Dr H that her father was really nice but “the oldest dad ever” – she also told a supervisor at the local Contact Centre that she liked to spend time with her father and, later, that, whilst he had not done anything during that visit to upset her, she felt uncomfortable after not seeing him for four months.

12. Whether X ultimately determines that the potential benefit to her of re-commencing a relationship with her father, on her terms, outweighs what likely now is a very significant discomfort for her, is a query only the passage of time will answer.

13. For the reasons outlined above, I consider that the orders set out at the commencement of these Reasons are orders which are now in the children’s best interests and proper and I order accordingly.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 April 2019.

Associate:

Date:              9 April 2019