Jenner & Zaback
[2022] FedCFamC2F 287
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jenner & Zaback [2022] FedCFamC2F 287
File number(s): MLC 2551 of 2008 Judgment of: JUDGE BURCHARDT Date of judgment: 18 March 2022 Catchwords: FAMILY LAW – Consideration pursuant to s 45A Family Law Act of whether father’s application has reasonable prospects of success – father’s position not wholly clear but seeking some form of reunification with 14 ½ year old daughter – child not having seen father for over 11 years and expressing clear view that she does not want any contact with the father – father’s denial of mental health difficulties and apparent lack of effective treatment being additional concern – clear father having no reasonable prospects of success Legislation: Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Cases cited: Bigg & Suzi (1998) FLC 92-799
Jefferson Ford Pty Ltd & Ford Motor Company of Australia Ltd [2008] FCAFC 60
Lindon v The Commonwealth (No.2) (1996) 70 ALJR 541
Spencer & Commonwealth of Australia [2010] HCA 28
Division: Division 2 Family Law Number of paragraphs: 47 Date of hearing: 4 March 2022 Place: Dandenong The Applicant: Self-represented Counsel for the Respondent: Ms Chia Solicitor for the Respondent: AAB Lawyers Pty Ltd Counsel for the Independent Children's Lawyer: Ms Morkos Solicitor for the Independent Children's Lawyer: CE Family Lawyers ORDERS
MLC 2551 of 2008 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JENNER
Applicant
AND: MS ZABACK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The father’s initiating application filed 31 March 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jenner & Zaback has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT:
INTRODUCTORY
The applicant father, Mr Jenner, has filed an application in the Court on 31 March 2020, in which he sought as final orders that he spend two hours every four weeks supervised at a contact centre with his daughter, X, born 2007. The mother’s position is that he should spend no time at all and not communicate with X.
On 13 April 2021, the matter was set down for trial on 3 March 2022, at a time when the father was legally represented. He has since self-represented. On 28 January 2022, I made orders adjourning the matter to trial as fixed, but that the matter proceed on an undefended basis if the father failed to attend or participate.
The father subsequently filed an affidavit dated 1 March 2022, and he appeared at the hearing and represented himself.
Because it was apparent from the materials that the parties filed that X has not seen her father since June 2011, and as a 14 and a half year old child was expressing a clear disinclination to see the father or have any communication with him at all, I directed on the first day of trial that the matter be adjourned to Friday, 4 March 2022 to hear arguments as to whether or not the father’s application should be summarily dismissed pursuant to section 45A of the Family Law Act 1975 (Cth) on the basis as to whether or not he had reasonable prospects of success.
The mother and Independent Children’s Lawyer’s oral submissions advanced the proposition that the father’s application should indeed be summarily dismissed. Mr Jenner’s submissions, understandably, took issue with this.
For the reasons that follow, I am indeed going to order that the application be summarily dismissed.
THE PARTIES’ AFFIDAVITS
I do not propose to endeavour to traverse the not insubstantial amount of affidavit material the parties have filed. The father’s affidavits, when prepared by himself, are understandably somewhat rambling in style and at times difficult to follow. He has put on affidavit substantial tranches of material going to his mental health treatment some years ago in Western Australia, and it is plain that he has a lengthy psychiatric history. It is not unfair, perhaps, to characterise his material as expressing a profound love of his daughter and deep distress at not having seen her for so long. He has also deposed that he does not have mental health difficulties, notwithstanding contrary diagnoses made from time to time. He is clear that he has never hurt or harmed either his daughter or the mother. It is also clear on his own affidavit material that he is naturally distrustful of authorities, including the Court, and oppositional perhaps to an extent he does not intend.
The mother’s affidavit material paints a very different picture. She concedes her own psychiatric history, which is under appropriate treatment. She deposes to terrible difficulties with the father over the course of their relationship including a period of some two years where they lived in essentially a transient or nomadic lifestyle.
From the affidavit material filed, it is clear that there was involvement by the relevant statutory Child Protection authorities in both Western Australia, Victoria and New South Wales. It appears that the authorities in Western Australia caused the mother to be relocated interstate to get her away from the father, and they lived in Tasmania for some years before returning to be closer to the maternal family in Melbourne.
The mother has deposed to ongoing efforts by the father to find her and X, including an application made to the Federal Circuit Court, which was dismissed by Judge Phipps in 2016, and recent attendances upon her home by private investigators engaged by the father.
On those occasions, the private investigators appear to have given the mother letters from the father to his daughter to be given to her. The letters are in part understandable expressions of affection and commitment on the father’s part, but they are also in part extremely accusatory of, and derogatory of, the mother and her family, and their overall tenor is such that I express no surprise that the mother felt it inappropriate to pass them on to her daughter.
The mother’s affidavit filed 3 February 2022 appends numerous deeply concerning texts and tropes or memes forwarded by the father to various parties, including his own solicitor, the mother’s solicitor and the Court. Just by way of example, at page 32 of 93, on 21 November 2021, the father forwarded a message to his own solicitor, with a copy to the mother’s solicitor, and the subject was expressed as:
U treasonous UN loving Masons will soon backpedal once WE sovereign Australia 1 Party get in office & expose your putrid UN Alliences & scum Chinas communistic secret shelved deeds since the 1950’’s by U evil pedo Freemason Pukes.
Much of the material is stringently critical of freemasons, and the father has not denied the various images and messages ascribed to him, which include at page 37 of 93, “karma is the most patient gangster ever”, and a lurid figure behind it. And a troubling photograph at page 58 of 93, where an armed, masked man is exposed under a heading “FORGIVE ME FATHER, FOR I WILL SIN”.
The mother’s affidavit also appends an email sent to the Court, to which it will be appropriate to return.
THE FAMILY REPORT OF MS B
Ms B’s report dated 10 February 2022 speaks for itself, and I do not propose to paraphrase it in any detail. I note that Mr Jenner did not make himself available for an interview, but sent her an email dated 2 February 2022, which is set out in full at paragraph 43 of the report. On page 16 of 25 of the report, some noteworthy extracts are as follows:
I have been persecuted, had multiple false allegations made via various authorities or by deceptive creative, coercive design, which is bad enough.
Oh I have uncovered a vile putrid rabbit hole full of lies & decorated & corruption to facilitate my complete deprivation & contact with & too my very loved & planned only child, by design from certain authorities too TRY and push me over & hope I act out aggressively etc however that has failed in two.
I do NOT have A or ANY psychological mental illness or disorder as you may have been informed by various & multiple system puppets within the family courts & government departments.
It should be noted that I have taken these extracts because of the way submissions were made at Court. It is fair to say, however, to Mr Jenner that the tenor of much of the rest of his email to Ms B was simply denying matters put against him and expressing his affection for X.
X was interviewed and the gravamen of what she had to say is at paragraphs 68-69, as follows:
She advised that she stopped seeing her father when she was a little girl. She remembers crying when she stopped seeing him because she did not fully understand why she could not see him. However over the years she began to understand that she stopped seeing him due to concerns for her safety. She stated that she cannot remember anything about her father except that they used to travel a lot. She said she does not know him and that she does not miss him because he is a stranger to her.
[X] was informed that her father wishes to see her and that his proposal is for visits to occur for two hours every 4 weeks at a contact centre to ensure her safety. In response, [X] said, “even if I wasn’t worried for my safety, it would be strange to see him because I haven’t seen him for such a long time and I don’t really want to see him.” She was asked if she would be prepared to meet him once and then offer a view as to whether she wished to continue seeing him. In response she said, “at the moment, I don’t feel anything will make me see him.” [X] recalled speaking to the ICL nearly a year ago and informing her that she does not wish to see her father. She indicated that she has not changed her mind since then.
When asked if she had any questions about her father, X said she did not have any questions about him (paragraph 72). At paragraphs 77-79, Ms B opined:
And apart from safety issues, the most critical question is what would be the benefit for [X] of establishing a relationship with her father she has not seen in over 10 years. If orders are made contrary to [X]’s expressed views, it is unlikely she would cooperate with the orders.
The impact on her mental health of any contact between [X] and her father will also need to be factored by the Court. [Ms Zaback] is totally opposed to any type of contact or communication between [X] and her father due to safety concerns for [X] and herself. [Ms Zaback] has endured significant upheaval and stress in the past to move to a different location from [Mr Jenner] to ensure [X]’s and her safety.
On balance, this writer cannot see any compelling reason to support [Mr Jenner]’s proposal to have supervised visits with his daughter.
THE REPORT FROM THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
The Court has a s 67Z response from the department dated 14 August 2020. Under the summary of child protection history, it is recorded:
The information provided by Department of Child Protection, Western Australia, concluded in their last assessment was that the mother, [Ms Zaback] had been assessed as being willing and capable of ensuring [X]’s safety and wellbeing. However, held significant concerns for [Mr Jenner], the father’s mental health and the risk of harm for [X] should contact be allowed. Department of Child Protection, Western Australia, has supported [Ms Zaback] to withhold contact for [X]’s safety and wellbeing.
The report further noted:
In 2012, Department of Health and Human Services, Victoria, received a report that Western Australia Child Protection Services supported [Ms Zaback] to relocate back to Victoria with [X]. Concerns raised were in relation to [Mr Jenner]’s mental health as he was diagnosed with Delusion Disorder and Paranoid Personality Disorder, and not receiving medication for his mental health.
The report noted further:
Department of Children Protection, Western Australia, held the view that if protective services were not involved with [X], given the extent of the father’s delusions, he would abscond with [X], or possibly kill [X] and take his own life ‘in an act of final control’.
The report went on to note that Mr Jenner had committed a serious criminal offence, but was found not guilty by reason of mental impairment. He was to be supervised by a psychiatrist, and he had a criminal history in other states in Australia, including Western Australia and New South Wales. The report concluded:
The information does not suggest that [X] is at risk in [Ms Zaback]’s care, however the information does suggest that [X]’s physical and emotional safety is at risk should she have contact with her father, [Mr Jenner].
REPORT OF DR D
Dr D put his reports on the parties on affidavit sworn 8 April 2021. The report noted that the father had been in the G Institution for several months in 2014. Dr D’s diagnosis was schizoaffective disorder and paranoid and borderline personality traits. On the last page of his report, he noted:
I am informed that [Mr Jenner] is not on a Community Treatment Order and my hope would be that any changes of medication would be conducted with regular monitoring and a safety net of the Mental Health Act. As [Dr C] reports clearly [Mr Jenner]’s level of function has improved remarkably and in that context, in my opinion, it would be appropriate, were his daughter [X] to be in agreement, for him to have supervised contact with his daughter.
It should be noted that when Mr Jenner saw Dr D on 19 November 2020, Mr Jenner was still taking haloperidol, an antipsychotic drug.
In his affidavit filed 1 March 2022 at paragraphs 20-21, Mr Jenner relevantly deposed:
My current psychiatrist, [Dr E], is treating me for my ex-service related issues, namely depression, anxiety and stress management.
[Dr E] does not prescribe me with any type of any antipsychotics or mood enhancers.
THE CORRESPONDENCE WITH THE COURT
On 27 January 2022, Mr Jenner emailed my associate. This email is in fact one of the annexures to the wife’s trial affidavit. Anyone seeking to understand the disposition of this application should read all of it as its terms are deeply concerning. Amongst other matters asserted are:
•I do not consent too any ICL being involved simply because my daughter is 15 years old this year & she can make her own decisions.
•The truth & facts have of course been omitted & kept from her ears & eyes for over 10 years by design.
•God knows this & I know this & it no longer serves me to apply by ur corrupted rule under ur disputable laws of control & devision & profits to suit ur vile system.
•I do not recognise ANY FREEMASON magistrate or judge in ANY COURT as being qualified to dictate or decide & look down upon me, for any coerced or corrupted & organised criminal character assassinated views of me from behind the bar under the counter acts to suit the putrid satanic establishment which will fall on its sword soon enough under the ONLY TRUE WORTHY AUTHORITY OF JESUS & YAHWEH GOD.
•UR PUTRID CORRUPT SYSTEM work for the United Nations corporations & not we the Australian people or loving Australian fathers, more too the valid point all be it to separate & devide by complete design.
•I refuse to place my self before ANY PUTRID FREEMASON AUTHORITY when I have committed NO CRIMES & ESPECIALLY NONE UNTOO MY ONLY CHILD EVER PERIOD.
As I say, these are in fact the opening paragraphs of the correspondence, but they give a very good indication of the general tenor of the communication.
THE SUBMISSIONS MADE AT COURT – COUNSEL FOR THE MOTHER
Counsel indicated that it was not clear what the father was really seeking. His originating application sought two hours every four weeks supervised. Counsel submitted the legal test was as set out in Lindon v The Commonwealth (No.2) (1996) 70 ALJR 541 as cited in Bigg & Suzi (1998) FLC 92-799 at page 874. I note that that decision has, in my view, been overtaken by subsequent authority to which I will come. Counsel submitted that the father had no reasonable cause of action and was bound to fail.
First, it was submitted that the father had not addressed safety concerns. Dr D had diagnosed him as having schizoaffective disorder with paranoia and delusional facets. The father had not filed any updated medical reports and had not complied with Dr D’s suggestions. It was not known if he is taking any medication. He is only being treated for depression and stress, and there was no mention in his affidavit of schizoaffective disorder or borderline personality disorder. The fact that he was not on medication was concerning and sertraline would not be enough. Dr D had said there was a risk of relapse and a risk if the father changed drugs.
The second matter relied upon is the father’s long criminal record and family violence. There have been many intervention orders, apart from those taken out by the mother. He was found guilty by reason of mental impairment and sentenced to a lengthy period of supervision. The current intervention order covers the mother and the child, and there will be a risk if there is any time with the father.
Next, the child has expressed strong wishes and is nearly 15. There has been no time for over 10 years. The supervised time in Western Australia was stopped by Child Protection. Finally, of course, the report writer and the Independent Children’s Lawyer were clear that there should be no time. The mother has sought the orders proposed by the Independent Children’s Lawyer. This outcome was not the mother’s or the Court’s fault. It is clear that the father loves X, but he needs to address the concerns.
Submissions by the Counsel for the Independent Children’s Lawyer
Counsel submitted that the application should be dismissed as having no reasonable prospects of success. The father only sought two hours per week every four weeks and has not spent any time with the child since 2012. In 2014 to January 2021, the father was under a supervision order. His antipsychotic drugs appear to have stopped, and this was a concern. There were concerns expressed by the Western Australian authorities about the father’s mental health because he was unmedicated, and now it is the same situation again. The father does not accept his mental health diagnosis. This was plain from his email to the report writer. Further, in his second email to the Court on 3 March 2022.
Counsel referred to the judgment of Judge Phipps on 16 August 2016. The father has been trying to find the mother using private investigators, and the letters he had in mind are annexed to the mother’s affidavit. X has no recollection of the father, save that they travelled a lot. She does not know him. He is a stranger and she does not want to see him. It is clear from the conclusions of the family report that any orders made for time would not be complied with by X.
Submissions of the Father
The father commenced by saying he had been frank and open about his criminal record, and his drug use was 35 years ago and experimental as to amount. The assault occurred when he pushed someone back after they had pushed him. He had never harmed or hurt X or the mother. He went on to detail alleged and significant assaults on him by the mother. He noted that the paternal grandmother had put an intervention on him. He said he was a strong, Alpha-type person who will say his bit. He said that this tends to rub authorities up the wrong way. He was a good father and a good partner to Ms Zaback (the mother). The mother sabotaged the relationship. He had had no other children by choice.
So far as his mental health was concerned, he had lived in a rooming house and was trying to get his possessions back. He had spent 12 months in prison in 2014 and agreed supervision as a means of getting out of a likely jail sentence. He had a strict regime under the supervision order involving drug tests and antipsychotics. He had sought to have these supervision orders lifted a number of times before finally succeeding in the County Court in February 2021.
He suffers severe depression and anxiety, which are related to his service injury. He is prescribed sertraline. He takes a variety of painkillers to cope with lumbar spondylosis. He has cannabis oil morning and night. He has not been on antipsychotics since he was released from the Mental Health Review Board and referred to Dr F’s report. In response to a question from the Court as to what he had to say about X’s expressed views, he said it hurts that X does not want to see him.
He was kept to the side by the system. He has not committed crimes. X has lost memory of him. She relies on her mother, grandmother and uncle and the system. There has been no Court contact for 11 years. He has missed her every day. It has been beyond his control. He wrote two letters, which he gave to the private investigator. The letters were not distressing. It was his heartfelt plea to regain access. He feels at a loss as he has tried everything.
It should be noted that the above accounts, which were all taken from my notes, do not by any means cover everything that Mr Jenner said. His submissions were at times rambling and somewhat incoherent and hard to follow. The overarching gravamen of what he had to say was that the accusations of criminal conduct made against him were either distorted, exaggerated or untrue. He is now in good mental health and does not need antipsychotics, and, of course, he misses his child very dearly.
THE LAW
The decision of Lindon v The Commonwealth referred to by Counsel predated the introduction of provisions like section 45A into the Family Law Act and section 31A of the Federal Court of Australia Act 1976 (Cth). In Spencer & Commonwealth of Australia [2010] HCA 28, French CJ and Gummow J, when considering section 31A of the Federal Court Act, which is in relevantly identical terms of section 45A of the Family Law Act, said at [24]:
The exercise of powers to summarily terminate proceedings must always be attended with caution.
Their Honours went on to say at [25]:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success.
The plurality of Hayne, Crennan, Kiefel, and Bell JJ said at [51]–[52]:
First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings.
Second, effect must be given to the negative admonition in sub‑s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub‑ss (2) and (3) is that the enquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
At [58]-[60], the plurality continued:
How then should the expression "no reasonable prospect" be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is "no reasonable prospect". The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like "no reasonable prospect" is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
Rather, full weight must be given to the expression as a whole.
The only other reference to authority I would cite is in the judgment of Gordon J, as her Honour then was, in the Full Court of the Federal Court in Jefferson Ford Pty Ltd & Ford Motor Company of Australia Ltd [2008] FCAFC 60. In that case, I would refer by reference to the judgments, particularly of Rares and Gordon JJ generally without setting them out. But the relevant part that seems to me of the greatest assistance is at [132] where her Honour said as follows (citations and authority omitted):
I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences – but only reasonable inferences – in favour of the non-moving party. I emphasise “reasonable” because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between “hopeless” cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.
CONSIDERATION
Although there are a number of additional matters that go to support this conclusion, the overwhelming matter in my view that militates against the father having reasonable prospects of success are the incontrovertible facts that X has not seen her father for over 11 years, and at the age of fourteen and a half, does not wish to do so. In and of itself, this makes his position hopeless. Although I have no doubt that Mr Jenner loves her dearly, and has indeed missed her throughout the period of this absence, it is an established fact. X has no meaningful memory of her father, scarcely at all, and at her age her wishes must surely be decisive. They are not unreasoned. They are a perfectly understandable and common-sense response to the march of events. As I say, in and of itself, this would be enough to dismiss the father’s application.
That is, however, not the end of the matter. I note that I am required pursuant to Justice Gordon’s observations in Jefferson Ford Pty Ltd & Ford Motor Company of Australia Ltd [2008] FCAFC 60 to draw only reasonable, and not plausible, inferences. Here, the independent evidence from the Department of Health and Human Services, as it then was (plainly admissible as a business record), shows major issues in the father’s mental health and resulting safety concerns for the mother and child. These safety issues, contrary to his submissions, cannot be set wholly aside. He has sought to explain away his various convictions, but the fact is that he was placed on a seven-year supervision period in 2014, which only was lifted in February 2021. It is an agreed fact that, during that period of time, the father had to take medicine to control his schizoaffective disorder. It seems equally clear that he has simply ceased now to take such drugs. He does not appear to accept the diagnosis made of him by Dr D, which, once again, is not likely to be plausibly destroyed were the matter to proceed to trial.
The father’s lack of insight into his mental health problems, his concomitant refusal to take necessary steps to regulate his difficulties, and the obvious potential dangers that flow from that to both the mother and to X only go to reinforce the proposition that he has no reasonable prospects of success.
CONCLUSION
Cases such as this are always very unhappy ones. It is no pleasure whatsoever to the Court to make an order that a man who so loves his daughter simply cannot see or even communicate with her. Nonetheless, he has no real prospects of success for the reasons given, and indeed his endeavours to locate his child, while understandable, show that communication must be simply forbidden to the extent that the Court is able to do so. The father’s view of the world is set out very clearly in the deeply concerning correspondence he has sent to the Court. I repeat, he has no reasonable prospects of success and the application will be dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 18 March 2022
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