Israel and Hilder

[2010] FamCA 138

FAMILY COURT OF AUSTRALIA

ISRAEL & HILDER [2010] FamCA 138

CHILDREN – Living with – spending time with

APPLICANT: Ms Israel

RESPONDENT: Mr Hilder

INDEPENDENT CHILDREN’S LAWYER: Ms Dooley

FILE NUMBER: BRC 9871 of 2007

DATE DELIVERED: 4 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 2-3 February 2010

REPRESENTATION

FOR THE APPLICANT: The Applicant appeared in person

COUNSEL FOR THE RESPONDENT: Mr Jordan of Counsel

SOLICITOR FOR THE RESPONDENT: Anthony Black Family Law Services of Brisbane

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Burridge of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Dooley Solicitors of Southport

Orders

1. All previous Orders of this Court and of the Federal Magistrates Court of Australia be discharged.

1. The child M born … March 2005 live with the Father Mr Hilder.

1. The Father have sole parental responsibility for the child.

1. The Mother Ms Israel spend time with the child for a period of two hours on Saturday and Sunday for the last three weekends of each month on the following basis:-

(a)   The time the Mother spends with the child will be supervised at the premises of Ms R at X Street, P, at times to be arranged with Ms R.

(b)   Subject to the consent of Ms R the Mother is at liberty to have her children and her partner, Mr A, attend with her during the time spent with the child.

(c)  Comply with all reasonable requests or directions of Ms R.

1. If Ms R is unable or unwilling to provide supervision of time as set out in this Order, then each party and the Independent Lawyer have leave to restore the matter to the list on seven (7) days written notice to the other parties and to the Court. The Mother shall not attend at Ms R’s premises or its vicinity before the time that the child is to start and shall promptly leave Ms R’s premises and its vicinity when her time with the child is to end.

1. Upon the Mother undertaking appropriate psychological treatment as arranged by the Independent Children’s Lawyer and subject to the Independent Children’s Lawyer being satisfied that such treatment has been undertaken then after three (3) months from the date of order the Mother then have unsupervised time with the child in lieu of the time referred to in Order 4 as follows:-

(a)   Each alternate weekend from 4:30pm Friday to 6:00pm Sunday.

(b)  The second half of all school holidays with the child to be returned at 3:00pm on the day before school recommences.

(c)  On Mother’s day from 9:00am to 5:00pm.

(d)  From 2:00pm to 8:00pm each Christmas day if the child is living with the Father on such day.

(e)  On the Child’s birthday from 1:00pm to 6:00pm if on a weekend or from 6:00pm to 8:00pm if on a weekday.

(f)   By telephone on three (3) days per week between 5:00pm and 5:30pm.

(g)  That the alternate weekend time referred to in (a) above be suspended during all school holiday periods with the Mother’s time with the child to recommence on the second weekend following the end of the school holiday period.

(h)  That the Mother shall collect and return the child from and to the H Police Station for all occasions.

1. The matter be re-listed for mention before the Honourable Justice Bell on a date to be advised by the Court in five (5) months from the date of Order.

1. There be no orders in respect of punishment of the Mother for costs in respect of the Father’s contravention proceedings determined on the 23^rd of October 2008.

1. The Independent Children’s Lawyer is at liberty to make available to the Mother’s Counsellor the Family Reports and Psychiatric Reports pertaining to these proceedings.

10. That pursuant to s.65DA(2) and s.62B, 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.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9871 of 2007

Ms Israel

Applicant

And

Mr Hilder

Respondent

REASONS FOR JUDGMENT

1. This is an application instituted by Ms Israel, for orders in relation to a child of her relationship with the respondent, Mr Hilder.  The child, the subject of this application, is M, who was born in March 2005.  The parties had a relationship which lasted from about 2003 to about 2006.  At the time of the commencement of cohabitation, the mother had a child named G, and he has lived with her and has little or no contact with his father.  M is a half-brother to G, and during the time of cohabitation he and G were constantly in each other’s possession.

2. As I said, the parties separated in 2006, and for a period thereafter, the respondent father enjoyed spending time, or it may be contact, with his son, M, as well as, he says, he spent time with G.  And he considers that he had a fairly good relationship with them and a consent order was made on 27 July 2006 for him to spend time with M.

3. It is alleged, and subsequently it appears to have been proved before Spelleken FM, that the mother refused to abide by the order.  The first of the applications for contravention filed by the father in November 2007 was withdrawn or was discontinued by the father.  Subsequently, Spelleken FM found that the mother had contravened an order for spending time with on three occasions, or three dates, and that the punishment, if I can put it that way, on the question of costs was adjourned.  It was adjourned to this Court for determination, and is, as I understand, before me, and was before me, during the trial.

4. The mother had refused, for a period of some five, five and a half months, to allow the father to spend any time with M.  During 2008, there is evidence before me contained in the documents that there have been complaints from schools to which G was attending.  One, there was Mr C, the principal of the V School.  He informed the Department of Child Safety that he took out an order restraining the mother from entering upon the school grounds because of her behaviour.  Mr D, acting principal of W School, an area in which the mother resides, reported a history of physical abuse by the mother towards G.  Ms K also, as I understand, supported such report, and Ms K called the police after the mother accosted her and followed her car at high speeds.  Mr T, principal, and vice-principal, Ms S, of the L School, reported to the Department of Child Safety in March 2008 that the mother was very volatile and abusive, and had to get a Court order restraining her access to the school grounds.  The mother denies these matters.  After seeing and hearing the mother, I have no hesitation in saying that that took place.

5. The mother has made numerous complaints to the Department of Child Safety, and I have had the opportunity of reading those files which have been put before me, and the parts which have been flagged, and I’ll be touching upon at least two of the reports at a later stage.

6. On 20 August 2008, Mr B, principal of J School at H, informed the Department that the mother came to school and informed a teacher that if G doesn’t behave, tell him I have a bottle of Tabasco.  This looms large, because it is quite clear that the mother, as a form of punishment, administers Tabasco not only to G, but in particular, to M, at a time when M was about three years of age.  I have asked the parties whether, in fact, I could take judicial notice of the fact that Tabasco is a hot sauce, and it was readily conceded.  Also, G has indicated that he found it somewhat funny, because my brother “pees his pants and looks very scared”.  The mother refused to discuss these disclosures with the Department staff.

7. About 3 October the father recommenced having time with M, and it was subsequent to that date, on 23 October 2008, that Spelleken FM found that the mother had contravened the order on three occasions.

8. There have been allegations of inappropriate conduct on the part of the mother, and I accept the allegations put forward by the respondent father’s legal advisers.  In particular, I think it was disgraceful that the mother, on one occasion, when the child was being returned to a childcare centre, in the presence of the paternal grandmother, threw a lunch which was prepared for the child by the paternal grandmother into a garden, and berated the father by indicating that he was a paedophile, in a loud and aggressive voice.  This was in the presence not only of M, but insofar as the child worker was concerned.

9. In 17 December 2008, the Department of Child Safety substantiated a finding that the children were at risk of physical and emotional abuse, but at that stage, not in need of protection.  On 13 January - I read these out because these are a litany of the mother’s behaviour, which, I might say, she has denied, but the proof is overwhelming as far as I’m concerned, that this has taken place.  Director of A Childcare Centre informs Department of Child Safety the mother has threatened to stab a staff mother with a safety pin.  24 April 2009, the mother alleges to a childcare worker that the father has been on drugs and has caused problems, while M was present to hear these allegations.

10. The Department of Child Safety file, which is extensive, indicates - and I’m referring to the Queensland Government documents forwarded to this Court by way of subpoena, and admitted - when G was interviewed on 5 November 2009 - I refer to the Queensland Government’s documents - it says, Israel A - G mentions to the interviewer all of the things that are set out therein, which could only be detrimental to any relationship the father had either with M or with G.  I refer to and incorporate in these, my reasons for judgment, that interview.  I refer to another interview which is 4 November 2009, where there was an interview with - or rather, a phone call was received from the Y Childcare Centre.  They have also put before me evidence that the enrolment of M was refused or terminated by that Y Childcare  Centre, because of the mother’s conduct.

11. She denies all these things.  She says she is a good mother, that she doesn’t do anything wrong.  The evidence is overwhelming that the mother’s whole attitude towards the children in this case is either (1) grossly inappropriate; (2) that she is attempting to alienate the affections of these children from the father.  I am more than satisfied, in all the circumstances, that her conduct is totally inappropriate.

12. The mother has been subject, as has the father, to, in effect, three reports.  One from E Organisation, by a Ms L, which is before me.  One is Child’s Responsive Program, by Mr R, and an updated family report, which I ordered.  The updated family report has considered, as I directed Mr R to do so, Ms L’s report, and I adopt his conclusions contained therein.  But I wish to refer in particular - the date of this report is 4 June 2009 - to M’s attitude towards the father, notwithstanding I am satisfied that the mother has overtly attempted to alienate the affections of the child, M, from his father, she has failed.

13. Now, I refer, in particular, paragraph 31, wherein inter alia, Mr R says that by way of providing the Court with an opinion on the quality of the relationship between M and his father:

    One of the more salient features of [M’s] attachment behaviour with his father was a good even balance of proximity, or comfort seeking balance with exploratory behaviour.  I noted no insignificant inhibition in either of these functions.  In [M], I notice good confidence, and no observable anxiety or ambivalence about using his father as a source of comfort or reassurance.

    I refer to paragraph 31 of the report.

14. Paragraph 32:

    [M] consistently displayed unrestricted, well organised and confident patterns of engaging his father.

    May I say in passing, I’m more than satisfied that the mother has encouraged the child not to refer to his father as dad, but by his first name.  She has been supported in that by G, who I’m more than satisfied has been, in effect, brainwashed to ensure that the father is looked upon as [first name omitted] and not as dad.  There is evidence from G that he is, in effect, a spy.  He has to look upon the conduct between the father and M to ensure that nothing untoward, in the mother’s eye, takes place.  That is, that M does not call his father “dad”, and that he does not become too closely aligned with the father.

15. I have already touched upon paragraph 32, where M consistently displayed unrestricted, well organised and confident patterns of engaging his father.  He goes on in the same paragraph in the last sentence:

    It is important to state that the behaviour I described as relaxed was not in my mind, the limp, passive type of response one often sees in children who are frightened or in a state of fear.

    Obviously Mr R referred to that since the mother alleges that the child, M, is afeared of his father.  Quite clearly, he is not.

16. Insofar as G is concerned, I commend to anybody else, if it goes to another place, paragraph 35, wherein Mr R starts off:

    [G] was a far different story.  His behaviour and interactional manner with Mr [Hilder] was strikingly different.  The quality ..... the impression I got of him from my interactions with him.

    He goes on and sets out what is obviously some disturbed conduct on the part of G.

17. I incorporate all of those matters to which I have referred in these, my reasons for judgment.  I must, however, briefly refer to the Child and Parents Issue Assessment made by Mr R, which is dated, on the face of it, 16 March 2008, but should be read as 16 March 2009.  I perhaps should have done that before I referred to his full report.  But in his summary, he is of the opinion - see point 2 under the heading “Summary”:

    Based on this initial assessment, it is clearly apparent that [M] (and [G]) are highly confused about their relationship and feelings with Mr [Hilder].  As a consequence of this, both children are at a moderate to high level of risk, being psychologically harmed if their experience continues to be confusing and distressing.  Based on my observations, I am strongly inclined to think [M] has already “learned” that he cannot simply relate to his parents on the basis of his experience with them.  He is a little boy who displays very strong indicators that he carries the awful burden of having to affirm his maternal identity by maintaining a particularly negative view of his father.”

    That is tragic for a child of M’s age, who was, at that time three – perhaps, not even four.

18. We have further, in my opinion, damning evidence against the mother in relation to a psychiatric report of a Dr H, who is well-known to this Court.  Dr H, in his affidavit filed 30 March 2009, at line, approximately, 190:

    This lady told me that she felt she had dealt with issues of her childhood, though, through the, as I understand, relative brief counselling, she had made as a middle adolescent.  My own views are that this is far from the case, and in my view, this lady requires significant psychological treatment over an extended period of time, and needs clear directions and boundaries from the Court in regards to inappropriate involvement of various agencies in looking for evidence of the ongoing alleged abuse to her children.

    Shall I just, in passing, say that she has, notwithstanding an order restraining her from doing so on two occasions, particularly after the children were removed from her - M was removed from her possession in December of last year - called upon the police to do two welfare checks.  She was ordered not to do this by Spelleken FM some 12 months ago.

19. She has had counselling.  It is clear on the evidence before me that she had a most unfortunate abusive relationship, I think, with her father, which obviously had scarred her to a great extent.  She did have counselling when she was about 16, and she herself says that since then, she has not had any form of counselling, other than, perhaps, some ad-hoc counselling with a person she could not remember who it was, nor which department the person was attached to.  Her present partner, Mr A, of whom nothing has been said contrary to him, indicates that he thought she was getting counselling at this stage.  Notwithstanding the strong recommendation by Dr H that she seek some psychological assistance, she has refused to do so.  She has not done anything, in my opinion, to alleviate the stress which is upon her, and which was obviously seen by Dr H.

20. What then am I left with?  I was left, up until the early part of December, with the fact that the mother still had possession of both children.  On 4 December 2009, Angela Filippello PR, after hearing evidence and taking notice of affidavits filed on behalf of the mother, because the mother did not appear, she ordered that M be removed from the possession on an interim basis, and handed over to the father.  I have had the opportunity of reading Ms Filippello’s reasons, only to ensure that she took into consideration a law in relation to interim parenting matters, and she clearly, in an in-depth and quite interesting judgment, has done that.  And she is aware - and she was clearly aware - that the mother, who did not appear, was at a disadvantage, but she did read the material of the mother, and still came to the conclusion that, in effect, the child should be removed from the mother.

21. The mother, of course, now seeks the child be returned to her, that the father’s spending time with the child be supervised until such time as she is of the belief, or some other person is of the belief, that he will no longer be any danger to the children.  She is of the view - and Dr H looked at this, and Mr R did too - that the children, and in particular, M, are at risk of some physical and/or sexual harm with the father.  I’m totally not satisfied that that is the case.

22. What then are we left with?  I’m left with the matters of having to look now at section 60CC.  I must, of course, ensure that there is a meaningful relationship between the parties.  But I am quite satisfied that should M remain with the mother, that there will not be a meaningful relationship between M and the father.  Whether she is doing this knowingly, or as I said, covertly, or overtly, I am sure that that is an endeavour on her part.  I don’t know whether she intends to do it, but it is happening.  She is attempting to alienate the affections of M from the father.  She may have done it with G.  He is not, of course, the biological child of the respondent father.  We have here a case where I am satisfied, on the overwhelming evidence, that that is either her intention, or she is doing it covertly.

23. What then do I have to look at?  I have to look at those section 60CC factors.  I make it quite clear, I do not believe I have to go through each one of these seriatim, but refer to the ones which I consider are important to this case.  I have touched upon the benefit of the child having a meaningful relationship.  He should have a meaningful relationship with both.  I am satisfied, on the evidence before me, that the father will advance the relationship, and I refer to the evidence of Mr R, who was put in the box without having been told that the child had been removed from the mother’s possession, and this necessitated an adjournment whilst he discussed the matters with the relevant parties.  I am satisfied, on his evidence, if only his evidence, that the father will advance the welfare of the child and the relationship between the child and the mother.  The mother would not.

24. It is required for me to consider whether there is a need to protect the child from physical or psychological harm.  I’m more than satisfied that I’d have to remove the child, to remove him from any chance of psychological harm.  At this stage, I don’t believe that he is showing it to any great extent, but Mr R is concerned, as I’ve already referred to, that there is pressure upon him and this could interfere with his relationship in future.  Obviously, at his age, his views are not put before me.

1. I have to look at the nature of the relationship with the child, with either of the child’s parents.  The child loves both parents.  He loves his mother.  He loves his father.  He is put under enormous pressure, as I have said, by the mother, to not love his father.  And as a result thereof, I do not think it’s his best interests to remain with the mother, or to be returned to the mother.

2. I’ve also got to consider the relationship with other persons.  G is his half-brother.  They obviously have a close, warm and loving relationship.  Mr R was asked questions by the mother concerning the affect it may have on either or both of them if they were separated.  And as he said, with his experience, he recognises the relationship of brothers is very important.  The relationship between M and G is established.  It is good, and solid.  There is a bond there, and he does not believe that the removal of M from the family of the mother, Mr A and G, and the new baby which was born in January, would be affected to any extent, because, I would have thought that M will still be seeing G, and will be seeing him, as far as I’m concerned, reasonably frequently.

3. Section 60CC(d), it has been touched upon by what I have just said.  Section 60CC(4) requires me to consider whether or not one of the parents have facilitated, or failed to facilitate the other parent in participating in making decisions, spending time with the child, communicating with the child.  I’m more than satisfied that the mother has failed, generally, in endeavouring to allow the child to spend time with the father.

4. My whole feeling in this case is this child must not be allowed to remain in a family where pressure is being brought to bear upon a child who is not yet four, for him to be alienated from his father.  In those circumstances, I have no hesitation in ordering that the child reside with the father.

5. Insofar as the other matters are concerned, I have before me draft orders made by the respondent, as well as the independent children’s lawyer.  I must look at those now, but I will be indicating that I believe that the mother should have contact, or spend time with the child.

6. The other frequently made orders in relation to denigration, etcetera, will be made, and I will be calling upon either the Independent Children’s Lawyer, or Mr Frew, to put before me a draft order.

RECORDED   :   NOT TRANSCRIBED

1. 8(i), at page 3 of your outline - I will not make that order at this stage.  I make it quite clear that the mother must recognise that her behaviour has been such that schools have been particularly concerned with her behaviour.  It does not advance either her welfare, and particularly M’s welfare.  I will not, at this stage, make that order, but I make it quite clear this matter will be brought back before me five months from now by the independent children’s lawyer, very briefly, to indicate how matters are going.

RECORDED   :   NOT TRANSCRIBED

1. Insofar as the final matter for my determination, is the penalty for the mother’s contravention - being found guilty of contravention of the orders.  The mother is, at present, in, I consider, somewhat difficult circumstances.  She is the mother of a newborn baby, who is very young.  She is living with a Mr A, and notwithstanding the father has sought orders for costs as well, I am of the opinion that the fact of her being here and hearing what I have said is more than sufficient punishment for her failing to comply with the orders.  She may wake up to it now.  I hope she has, because she is, unfortunately in lots of areas, a good mother, but not insofar as the areas that I have referred to.  And consequently I would make no further order in relation to either the costs or punishment upon the mother.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  18 February 2010