Joseph and Rice

[2017] FCCA 812

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSEPH & RICE [2017] FCCA 812

Catchwords:
FAMILY LAW – Entrenched parenting dispute – mother successful in alienating 13 year old child from the father – clear from expert evidence that at present no orders whatever can be made for the child to have contact with the father – orders made as proposed by the mother.

Legislation:

Family Law Act 1975, s.60CC(2A)

Applicant: MS JOSEPH

Respondent: MR RICE

File Number: MLC 1650 of 2008

Judgment of: Judge Burchardt

Hearing dates: 30 March 2017 and 7 April 2017

Date of Last Submission: 7 April 2017

Delivered at: Dandenong

Delivered on: 10 April 2017

REPRESENTATION

Counsel for the Applicant: Mr Chislett

Counsel for the Respondent: Mr Gates

Solicitors for the Respondent: Bentleys Barristers & Solicitors

Counsel for the Independent Children’s Lawyer: Mr Eidelson

Solicitors for the Independent Children’s Lawyer: Schetzer Constantinou

ORDERS

1. That the mother have sole parental responsibility for the child X born (omitted) 2004 (“the child”).

2. The child live with the mother.

3. The child spend time with the father in accordance with the child’s wishes.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 1650 of 2008

MS JOSEPH

Applicant

And

MR RICE

Respondent

REASONS FOR JUDGMENT

1. In this matter we are concerned with the best interests of a child X, who was born on (omitted) 2004 (‘X’).  The father filed the first application between the parties on 17 September 2004, and it is not an exaggeration to say that, one way or the other, they have been in Court ever since.  Separation took place in late 2003.  The child has never seen the parents not in conflict.

2. The first set of final orders were made by Connolly FM, as His Honour then was, on 18 April 2006.  On 25 February 2008 the father filed a further initiating application in which he sought equal time on a week about basis.  The parties have filed numerous affidavits which contain no shortage of complaints about one another.  Neither party emerges with credit or as a mature child-focused parent when you read the materials. 

3. Final orders were made by Riethmuller FM, as his Honour then was, on 28 November 2008.  A 10/4 arrangement was put in place, essentially with alternate weekends.  A further application by the father about costs was dismissed on 7 August 2009 by Riethmuller FM.

4. Then, superficially everything went quiet, so far as Court proceedings were concerned, until the mother’s present application filed on 11 May 2015, but that is not a true picture of the events.  The mother initially sought to reduce the father’s time on an interim basis.  She said that the extant orders were unworkable.  She alleged family violence and referred to an Intervention Order taken out on 5 May 2015.

5. A major issue took place on Anzac Day in 2015.  There was an argument between the father and X.  Copious affidavit material has been filed and it reflects similarly mutual counter-accusations between the parties.  The mother says the father is threatening, but at the same time says that he has never been physically violent.  There are complaints by the father of the mother trying to stop his time with the child.  There are strong elements of the self-serving and petulant in both parties’ affidavits.

6. The matter was the subject of a family report prepared by Ms G, dated 11 January 2016.  I pass over the section 11F report by Ms C, but I do have regard to it.

7. On 24 May 2016 orders were made for the parties to attend upon Ms L to try and re-establish a relationship between the child and the father.  The father was at liberty to send cards and the like.  Unfortunately, for a number of reasons, the experiment with Ms L did not work out.  There has been no contact between the father and X since at least May 2015.  I note that the mother made various denials in her affidavit filed 21 April 2016 about what was said to Ms G during the family report interviews.

8. The parties were also the subject of assessment by Dr A who is a psychiatrist, and I propose to read several short extracts from his report.  At paragraphs 8 to 9 on page 12 of his report he said the following:

   The ‘incident’ in April 2015 would superficially seem to have become a storm in a teacup, but perhaps the incident was more traumatic to X that I have sensed without having assessed her.  Mr Rice’s emotional response seems to have been at least mildly excessive, and even he admitted deep regret for his management of the situation.  Ms Joseph’s portrayal of Mr Rice locking X in the car gave the impression that she could not exit the car, when it would seem that this was not the case.  Similarly, there appears to have been conjecture as to whether X was sent to her bedroom for an excessive time period.  It is my understanding that law refers to ‘reasonable time’ that a child can be left unattended in a car.  I am unclear if Mr Rice’s decision to leave X (then aged 11?), in the locked car (unable to be opened externally, but able to be opened in internally) for somewhere around 5-10 minutes whilst he attended a shop represented a level of unlawful behaviour and negligence.  Irrespective of the nuances of this incident, it would seem somewhat extraordinary that this alone triggered the outcome that X have no ongoing contact with Mr Rice.  Ms Joseph emphasised that X had accrued ill feeling for Mr Rice, similar to her feelings for Mr Rice, and this incident finally triggered her to verbalise the level of her unhappiness.  I am not confident that this is the full story.  It is critical for children to be able to work through problems and realise that life is not always ideal, including recognising that their parents do not always conduct themselves perfectly.  I wonder if Ms Joseph’s comparatively ‘perfect’ relationship with X has led to the different relationship with Mr Rice being deemed to be terrible.  Mr Rice’s needed to own and take responsibility for any wrongdoing in this incident, and any other incidents, and appropriately apologise and work through residual issues arising with X. I would have expected that this could have been managed reasonably promptly following the April 2015 incident.  The inability of Ms Joseph and Mr Rice to be able to communicate and discuss issues such as this incident is very unfortunate and sadly reflective of potential ongoing issues if contact resumes between X and Mr Rice.  It is possibly more problematic now, given X has not had any contact with her father for over one year for this historical issue to be worked through, as she has presumably consolidated her view that she does not want to have any ongoing contact. 

   Mr Rice’s presentation and history, both self-reported and that provided by Ms Joseph, does not correlate with a diagnosis of bipolar disorder.  Ms Joseph seems to have spuriously raised this diagnosis without foundation.  Mr Rice unlikely has a personality disorder as per DSM V criteria, but he might have some underlying personality difficulties, including emotional dysregulation, that requires evaluation and intervention with a clinical psychologist.  I note X referred to Mr Rice as an angry and aggressive man (point 62 of the Family Report).  If this is accurate then it is clearly concerning.  However, it seems to be obvious that Ms Joseph has “assisted X to recall negative events and traits of the father”(Point 66 of Family Report) that might be considered inappropriate and reinforcing of X’s adopted position.  As mentioned in the Family Report (point 67) X has strongly aligned with Ms Joseph’s negative views of Mr Rice.  This alignment is concerning if X has not acquired this position independently.

9. And that brings me to the family report of Ms G.  I am going to read out quite a number of paragraphs from it.  I will start with 19 to 21 on page 10.  Ms G wrote:

   Significant time was spent during Ms Joseph’s interview discussing how these previous legal orders were detrimental to X’s physical and emotional health.  She reported that X was frequently distraught at kindergarten and early primary school as a consequence of being forced to spend time with her father.  Ms Joseph stated that on the days she was due to spend time with Mr Rice, X would experience difficulties in separating from her to attend school.  Ms Joseph recalled working closely with X’s primary school to assist her during these emotional and distressing transitions.

   As a consequence of X’s stressful parenting arrangements, Ms Joseph reported that X has experienced ongoing difficulties, both academically and socially at school, particularly throughout early primary school years. 

   Ms Joseph has recalled, throughout the year X has been spending time with her father, Ms Joseph has held ongoing concerns about Mr Rice’s ability to adequately provide for X’s physical and emotional wellbeing.  She claims Mr Rice has been unable to provide X with adequate meals, has been neglectful of her medical needs and has not been attuned to X’s emotional needs.

10. At paragraph 23 Ms G continued:

    Ms Joseph has reported that Mr Rice has suffered from mental health issues over the last thirteen years. However, she is unsure whether there has been any previous diagnosis.  Ms Joseph stated that this issue was not explored during the previous legal proceedings in 2006 - 2008.  Ms Joseph believes that Mr Rice suffers from both bi-polar disorder and a personality disorder that has exacerbated his propensity for violence. 

    I note, in passing, that Ms Joseph is a qualified (occupation omitted).

11. At paragraph 30 Ms G continued, and I will read through to the end of paragraph 32:

    Ms Joseph indicated that her family had been engaged in both family law proceedings and intervention order proceedings for many years which have caused her and her husband considerable stress.  She described Mr Rice as “a cancer in our relationship” and now she wishes to “just move on” and “just get on with my life.”

    Since X’s time with her father has ceased Ms Joseph reported that X has expressed more confidence and her self-esteem at school had considerably improved.  Ms Joseph also believes that X is beginning to deal with stress more appropriately and she would be concerned if the Court ordered that X was required to spend time with or communicate with her father in the future as this may further affect her emotional health.

    In relation to issues of parental responsibility Ms Joseph stated, “as far as I am concerned, he has no say.  He has taken no responsibility for years and he should have no say.”

12. At paragraphs 34 and 35 Ms G recorded:

    Mr Rice expressed concerns for X’s long-term emotional health as a consequence of moving between her parents.  He reported that X had been exposed to her mother’s relentless denigration of him throughout the years, and he believed that she had only been permitted to report negative aspects of her time with him, which her mother would record. Mr Rice stated, “my daughter was grilled every day she got back”, and expressed concern for X who needed to report all aspects of her life with him back to her mother. 

    Mr Rice expressed sadness that X was not permitted to discuss any aspect of her family with him which he felt restricted his knowledge of X’s life and people that were important to her.  For example, Mr Rice stated he was only aware that X had a third sibling through Ms Joseph’s affidavit material, and yet he suspected that X was not permitted to disclose such information.  Mr Rice stated that “X shares a close relationship with her siblings and is disappointed that she X is not emotionally permitted to express her joy over the birth of a new sibling in his presence.

13. At paragraph 45 Ms G wrote:

    Overall, Mr Rice believed that he had acted inappropriately with X stating that he finds her adolescent attitude and disrespectful interactions frustrating.  However, he denies harming X either physically or emotionally.  He reinforced that he loved X and that he misses her and desperately wished to re-establish his relationship with her.  He is concerned, however, that X may not have emotional permission to re-establish a relationship with him by her mother, particularly following the statements she had given to the Department of Health and Human Services regarding her allegedly poor treatment in his care.

14. At paragraphs 47 to 50 Ms G reported:

    X presented as a quiet girl with low observable expression.  She understood the purpose of her interview was to discuss her relationship with her father.  She provided a wholly negative account of her father and described an absence of a relationship between them.  She said that she had never talked to him when she had to spend time with him and that she is happier now that she never sees him.

    X stated that her father has never changed “since I was a baby” reporting that he has always been verbally and emotionally abusive towards her.  She stated that her mother had reminded her that when she was younger her father banged on the window of her maternal grandmother’s home “for no reason.”

    In discussing positive and negative aspects of her father, X was unable to name any positive memories or traits of her father, however, stated she did not want to spend time with him again “for my safety”. X recalled that her father had slapped her when she was younger and is now fearful that he may slap her in the future. 

    X said she had no message to pass on to her father and stated she did not care about her father and was not concerned that her rejection of him would upset him.  X stated that she had no sympathy for her father.  She summarised her interview by saying that she no longer wanted him in her life and, a similar manner as her mother indicated that she wanted to ‘move on’ with her life without her father.  X felt that her mother was supportive of her decision and her views concerning her father.

15. At paragraph 60 in the evaluation section Ms G wrote:

    Ms Joseph raised a number of concerns for X’s emotional wellbeing in the care of her father.  These concerns commenced from X’s initial introduction with her father, her early childhood, up until recent events in April 2015.  Ms Joseph reported that she had documented her concerns for X in her father’s care throughout her life as she anticipated that when X was old enough to express her concerns about her father’s poor treatment of her, that Ms Joseph would support X’s views and wishes.

16. At paragraphs 65 to 67 Ms G continued:

    Ms Joseph during her interview raised concerns regarding Mr Rice’s significant mental health issues, claiming that he suffered from both Bi-Polar Disorder and Borderline Personality Disorder.  Ms Joseph had been employed as a (occupation omitted) and, therefore, would be familiar with these mental health disorders.  Again, it is unsure whether Mr Rice’s alleged mental health issues were raised back in 2008 or whether these are new concerns raised by Ms Joseph.  If this matter continues to a Final Hearing, a psychiatric assessment of both parents may assist the Court.

    This assessment has raised concerns for X’s emotional wellbeing while exposed to intense conflict between her parents that may have inhibited her ability to enjoy a relationship with both of them.  Ms Joseph openly discussed that she has recorded all of her concerns regarding X in her father’s care as she intended that this matter would return to Court in the future.  It also appears that Ms Joseph has assisted X to recall negative events and traits of her father.

    It is noted that Ms Joseph has not made any suggestions regarding how X’s relationship with her father may be improved in the future but strongly advocates that this relationship is now severed.  X is currently strongly aligned with her mother’s negative views of her father and is requesting to sever this relationship.  It is common for children to reject one parent and align with the other parent in circumstances where they are exposed to significant parental conflict.

17. In paragraph 68 she went on:

    X has spent significant time with her father from November 2008 until April 2015.  Despite the incidents described by X and Mr Rice on Anzac Day 2015, it does not seem to be in X’s best interests for her relationship with her father to be severed.  However, it is unlikely that X’s relationship with her father can be re-established without professional assistance.  Consequently, it is suggested that X and Mr Rice engage with a counsellor/therapist who has extensive experience in family law, as directed by the Independent Children’s Lawyer.

    That ends the extracts from the report.  Of course, I point out that the endeavours to engage with Ms L were unsuccessful.

18. In the case before the Court the mother seeks three orders.  First, that she have sole parental responsibility.  Second, that the child live with her, and third, that the child spends time with her father in accordance with her wishes. 

19. I do not propose to paraphrase the evidence in great detail.  The mother did not even forward a letter sent by the father to the child.  She said the child did not want it.  The mother has not told the child that the father loves her in the last four years.  She says that all the aggression is from the father.  The mother has, in fact, recorded all the bad things X has told her about the father and took these notes with a view to exhibiting them in a legal proceeding.

20. She blames the father entirely, but, at the same time, she says there has never been physical violence by the father to her.  The mother does not accept Dr A’s view that the father does not have a psychiatric condition.

21. I propose to paraphrase from my notes of the cross-examination of the mother by counsel for the Independent Children’s Lawyer.  The mother said that they had been at odds since the child was born and the child only knows disputation between them.  “This will not change.  It is all his fault.”  She has done her best not to contribute and says it is no responsibility of hers.

22. The father was never directly physically abusive to her.  She accepts what X tells her.  The father has been physically abusive to X and she is not safe.  She has had this view for many years, indeed, since the relationship and since the child was born.  The Anzac Day incident was not a storm in a teacup.  X was definite about not seeing the father.  She cannot discuss issues with the father.  “If contact resumes, it’s on again.  If so, X’s mental health would deteriorate again.”

23. She expressed suicidal ideation to a counsellor in 2015 and Catholic Care on several occasions, but this has now ceased.  They then went to another counsellor.  She could not remember when this stopped.  The support was deemed counterproductive, and the second counsellor said so.  She had not told Ms G that the child had expressed suicidal ideation, but had told Ms L.  There has been no suicidal expression for over a year.  She will never support time with the father.

24. I should make it clear that it is quite apparent from what the mother said and how she said it in Court that the mother really hates this man.  It is poorly concealed.  She was evasive as a witness and had a strong tendency to answer questions with questions of her own.

25. The father was not much better.  He clearly has a temper.  He handled the Anzac Day 2015 incident extremely poorly.  He blames the mother, but perhaps not as rigidly as she blames him.  He said that conflict will not be from him if X spends time with him.

26. Ms G was called, and once again, I will paraphrase her evidence from my notes.  She was first questioned by Mr Eidelson for the Independent Children’s Lawyer.  Ms G confirmed that the mother wants the father out of her life.  She is not surprised that the mother wholly blames the father.  She was aware that the mother had recorded anything negative that X said about the father.  This gives a message to the child about what information the mother wants to hear from her.  Ms G had not received any further documentation since her report in January 2016, and had not seen the report of Dr A.

1. The April 2015 incident was a typical incident between a parent and a child of that age.  She agreed with Dr A that this was not the full story.  Over time, the child and mother would feel similar negative feelings for the father and the views have become similar.  It is important for children to work through problems, but the issue was also embedded when she interviewed the child 15 months ago.  It is likely still the case.  There will be no support from the mother for the relationship.  The father does not exist in the mother’s home.

2. The father showed some measure of insight, as set out in paragraph 34 of her report, but the mother’s attitude was thoroughly negative from the beginning.  The parties have been in conflict since the child was born and this has a major impact on the child’s wellbeing.  The child mirrors the mother’s image of the father.

3. Alignment is common where there is conflict, and X has pulled herself out of the conflict.  She has done so to preserve her sanity.  Further conflict was likely if time is ordered.  Ms G can understand why the father wants to see the child, but re-establishing time again will place even further stress on the child.  Her views are cemented in the negative.  She should not be compelled to see her father.  She is in high school.  She is an adolescent.  She needs to focus on her education and other things that are important in her life.

4. It is likely she will reconnect with her father later.  It would be detrimental to resume with the father now.  She was not aware that the parties had seen Ms L, but she agreed with Ms L’s recommendations when put to her.  I do not propose to deal with those in any detail, I should say.  I think they have been overtaken by events.

5. Under cross-examination by counsel for the mother it was put to her that the mother had not referred to the father as a cancer in her life.  Ms G’s notes did confirm that this was the case.  She was very specific that the mother made notes that would be used in Court.  She diarised things.  One day something was bound to happen.  The mother was proud that the child was assertive with the father.  Ms G had not recorded how long she spent with X, but remembered her as an intelligent child who is emotionally burdened. 

6. Locking the child in a car was typical of the sort of thing that would happen to a child of this age.  She was concerned that the mother was discussing with X what X had told Ms G during the interview.

7. Under cross-examination by counsel for the father it was put to Ms G that there was a video, which indeed the Court has seen sufficient of, showing the father with X, from a toddler until early 2015.  It was clear that those matters recorded were entirely happy.  It was a normal family video.  The father had said it was a good relationship between 2008 and 2015, but he over-reacted on Anzac Day.  Ms G thought it shocking that X had said she could not tell her father about her new siblings.

8. Contrary to criticisms advanced by the mother, Ms G had programmed a two-hour gap between the mother’s and father’s appointments.  The child did not wish to see the father, so that did not happen.  X was under pressure not to have a relationship with her father.  This was not one instance, but a build-up over 13 years.  The father was not a risk to X.  He loves her.  The mother did not give the father’s letter to X.  Ms G was concerned that the mother did not accept Dr A’s opinion of the father, particularly as she was a social worker.  The mother believed the father has psychological problems and the child who was emotionally unsafe in the conflict between the parents.

9. The child, that is to say X, told Ms G the mother heard/ informed/reminded her of things that had happened to her when she was younger.  When it was put by counsel that it might be appropriate that the father spend three hours per fortnight with the child and contact by email, Ms G said that the mother would not support any time.  X is 13 and is intelligent.  She would be likely to see this as the father challenging her own decisions.  The father would do better to respect her wishes for now.

10. It could be the case, however, that it would be helpful that the Independent Children’s Lawyer explain the outcome of the case and the fact that the father loves her to her.  Even email would be too much.  Cards and Christmas presents would similarly be a problem because the mother would not deliver them.

11. I propose next to read the notes of the submissions of the parties.  Mr Eidelson submitted that this was a very sad case with an inevitable outcome.  He was critical of the evidence of the mother who has a very blinkered view.  She sees the father as a cancer to be cut out of her life.  This was an accurate assessment of her views.  The child is 13.  There had been intense parental conflict throughout her life.  She had no knowledge of the parents having a good relationship.  It was not surprising that she had rejected the parental conflict.  Children’s self-help and wipe the slate.  It is just self-preservation.

12. The mother holds very negative views of the father and the father likewise of her.  The father might have more insight, but it is all too late.  It is not a matter of blame.  The mother has removed the father from the child’s life and is determined to keep him out of it.  There is no alternative realistically to the child remaining with the mother.  The child is now totally non-cooperative and 13.  It is important that she not feel attacked. 

13. Ms L asked the father to be patient, and so did Ms G.  There should be an order for sole parental responsibility, no time with the father, and even gifts and cards were problematic.  It was submitted, the Independent Children’s Lawyer should meet the child to explain the outcome of the case.

14. Counsel for the father’s submissions pointed to section 60CC and, in particular, subsection (2A).  He conceded that there should be an order that X spend time with the father according to her wishes.  He also sought an order that the mother not denigrate the father and that there should be notification to the child of the father’s desire to see her. 

15. It was noted that the mother takes notes of every incident and counsel pointed to the video that the Court saw at the commencement of the case.  He submitted there was clear parental alienation and the father would seek any orders at all in his favour.  It was submitted that “tragedy” was not too strong a word to describe the situation. 

16. Mr Chislett, for the mother, submitted that the child’s views were clear.  The mother has sought time in accordance with X’s wishes throughout the case and seeks an order for sole parental responsibility.  Counsel for the father sought finally an order that the father be informed of any major illness that X might have the misfortune to suffer.

17. I come to my conclusion.  Every word said by Mr Eidelson was correct.  It is as clear as it is sad.  The risks to the child in the long term, in the event that her relationship with her father is severed, are clear, but the child is wholly aligned with the mother.  Ms G’s evidence is that any contact whatever with the father would be likely to be detrimental at this stage, and I have described in my recitation of the evidence and submissions why that is so.

18. Although Ms G’s evidence has been the subject of criticism in affidavit and, to an extent, in cross-examination by the mother, I accept Ms G’s evidence entirely.  She was an excellent professional witness giving evidence within her area of expertise and was not moved one inch in cross-examination.

19. I accept that the mother told Ms G those things that Ms G recorded, despite her denials.  It is a very depressing result.  It is clear, on the materials, that the only orders the Court can make are the three sought by the mother.  There will be an order for sole parental responsibility in her favour.  There will be an order that the child live with the mother.  There will be an order that the child spend time with the father in accordance with her wishes.  I will request the Independent Children’s Lawyer to try and meet the child to explain this to her.

20. There has been a lot said as to whose fault all this is.  It is important to remember that the Court is not concerned in the ultimate with blame as such.  It is a matter of the best interests for the child, as assessed, pursuant to the statutory pathway, and it cannot have all come from the mother, but I am not prepared to leave the bench without saying what an important outcome this is. 

21. The mother will have the spiteful satisfaction of removing the father totally from the child for the foreseeable future in the circumstances where Ms G’s evidence suggests that this is likely to be detrimental in the long term.  She has given evidence that is certainly inaccurate and I suspect wittingly so, about what was said to Ms G.  This stands wholly to her discredit.  She is in one sense the winner, but I very much fear that everyone is a loser in this case, but the orders that I am making are the only ones on the materials that can properly be made.  It is a very sad outcome, on any view.  So there will be the three orders I have described.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  10 April 2017