Heimat and Heimat

[2013] FamCA 628

FAMILY COURT OF AUSTRALIA

HEIMAT & HEIMAT [2013] FamCA 628

FAMILY LAW – CHILDREN – With whom the child lives – Parental responsibility – s 60CC – Views of the child – Where the children, aged 17 and 12, have expressed strong views that they not have contact with the Father – Where relationship between the Father and the children has broken down – Where contact between the Father and the children would not be Ceficial to the children – Where Father poses risk of psychological harm to the children – Children to live with the Mother – Mother to have sole parental responsibility for the children – No contact Order.   

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Heimat

RESPONDENT:	Mr Heimat
INDEPENDENT CHILDREN’S LAWYER:	Ms O’Reilly, Solicitor

FILE NUMBER: BRC 7987 of 2007

DATE DELIVERED: 22 July 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 22 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Mother appearing in person

COUNSEL FOR THE RESPONDENT:

No appearance by the Respondent Father

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Kirkman-Scroope of Counsel

MTM Lawyers

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

1. The children, B born … 1996 and C born … 2001, live with the Mother.

1. The Mother have sole parental responsibility for the children.

1. The Father spend no time or communicate with the children.

1. The within Orders hereby authorise the schools attended by the children to provide to the Father, upon his request and at his cost, copies of school reports, school newsletters, applications for class photographs and the like AND FURTHER to provide information to the Father in relation to the children’s educational and social progress.

1. The Mother inform the Father as soon as reasonably practicable of any serious medical condition, serious health issue or serious illness suffered by the children. 

1. Pursuant to s 62B and s 65DA(2), 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 document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

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FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7987 of 2007

Ms Heimat

Applicant

And

Mr Heimat

Respondent

REASONS FOR JUDGMENT

1. This is a most unfortunate matter in that two children of the relationship between the applicant, Ms Heimat and Mr Heimat, are born with Asperger’s and as a result thereof they have been somewhat difficult to manage and this has caused a great deal of stress and angst in the marriage.  I refer to the ages of the boys, the child, B, was born in 1996 and C was born in 2001. 

RECORDED    :    NOT TRANSCRIBED

1. I have read the material which has been put before me by the mother, the independent children’s lawyer and the short affidavit to which I have referred of the respondent father.  It is quite clear that not only has the unfortunate illnesses of the boys caused a great deal of stress and emotion in the relationship between the parties, but it does appear as though it was not a marriage made in heaven and it is alleged by the mother that the father was aggressive towards her and there have been mutual DVOs, if my memory serves me correctly. 

2. The father’s DVO has expired, and the mother’s will expire in about the month of October.

RECORDED    :    NOT TRANSCRIBED

1. I do not intend in a case such as this to go into any matters in great detail.  I am mindful of the provisions of section 60CC but I have read in depth the family report of 14 February 2013.  I have made several notes.  In particular I am looking at B’s attitude towards having contact with his father.  It is quite clear at paragraph 89 of that report that B does not want to see his father.  He did not want to see him at the interviews and when it was suggested to him that he see his father he called out “No”, and curled up with his head on his lap when this was first mentioned.  He related that he was worried that Mr Heimat would try to take him and C away that day.  That was the day of the interview.  He says his attitude is built up over several years.  He described his father as bullying him.  He had not dealt well with his father’s behaviour, “We had a fight.  We had so many fights”, and they are quotes from B himself. 

2. There are other matters in there which cause me grave concern and which, notwithstanding the protestations of the father that he is opposed to the Family Court process and considers that the family report is insulting, etcetera, I am of the view that since he has not seen fit because, as he says, of his illness to appear before me and contest such allegations, that I can do nothing else but accept what was said by B.

3. At paragraph 105 of that report it follows when asked about seeing his father as part of the interview process C, reacted strongly and asserted he did not want to see Mr Heimat “today or ever”.  C explained, “If I see him he will try to take me”.  He was distressed by events early 2012, which I will not deign to even consider since I think it happened – a brawl between the mother and the father in which the mother and one of the boys suffered some injuries which necessitated them going to hospital. 

4. This supports C’s view and his view.  At 107 C said, “Dad’s done stuff that scares the daylights out of me”.  He says he was kidnapped from school, 6 February 2012, “I was absolutely petrified.  I didn’t think I’d see mum or B again”.  And at paragraph 108 he says “I don’t to sound mean [sic] but I don’t miss him”.  He deletes any communications by the father, particularly emails, without even reading them. 

5. It is a tragic case.  It appears to me that the relationship between the father and the boys is totally broken down and that there is, in effect, no way at this stage that we can resurrect such a relationship.  B is almost an adult and within 12 months he will be entitled to find his own way.  At this stage he does not wish to see his father.  I sincerely hope that the bitterness between the mother and the father will diminish to a great extent to enable some encouragement for the boys to see their father again.  Boys, in particular, I believe, deserve to know their father and they have the right to know their father but only if, in fact, all things are equal and that the father is able to adequately support and encourage the boys to turn out to be good, old-fashioned, as far as I am concerned, young men. 

6. This appears at this stage to be impossible.  I note the recommendations and I have no hesitation in saying that the children, the mother will have the sole parental responsibility.  I say sole for obvious reasons.  I incorporate in this my reasons the whole of the family report of Ms D to which I have hereinbefore referred in part.  I do not believe that any form of contact between the boys and the father ordered by this court would either (a) be carried out, or (b) be of any benefit to anybody.

7. Otherwise I have to consider the provisions of the case of MRR v GR (2010) 240 CLR 461. I cannot in this case quite clearly order there be joint parental responsibility or shared parenting.

8. I am quite satisfied that the material before me as particularly contained in Ms D’s report clearly shows there would be no advantage.  They are unable to agree, in effect, on what day of the week and I am always of the view that notwithstanding parents hate each other, if they can agree insofar as the welfare of the children are concerned, there is a possibility of joint parental responsibility being carried out.  In this case they cannot and I am not satisfied that any order to that effect would be proper.

9. Also, of course, there appears to have been some domestic violence directed towards the child, C in particular, by the father.  Insofar as contact is concerned I do not believe that the children’s welfare will be advanced, not only is there psychological harm within the meaning of section 60CC but also physical abuse perpetrated upon the sons by their father.  This would not be in the interests of either the children, in particular the children, but also in the father.  If we give the father and the children a rest from each other we can only hope that in the future they may resurrect whatever love and affection they had for their father and become close with him again.

10. I note the recommendations contained under the subheading, Recommendations.  I am of the view that there should be an order for sole parental responsibility with the mother, that the children live with her, that there be no contact by the father other than the mother authorise the schools to forward to the father copies of their reports and, further, should the children suffer any serious medical condition that she inform the father of such medical condition.

RECORDED    :    NOT TRANSCRIBED

1. Order accordingly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 22 July 2013.

Associate: 

Date:  22 July 2013