JOSEPHS & LORENZO - [2019] FCCA 929

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSEPHS & LORENZO

[2019] FCCA 929

Catchwords:
FAMILY LAW – Interim parenting arrangements for child aged eleven – child refuses to spend time with the father – father alleges mother has influenced the child – meaningful level of relationship – best interests.

Legislation:

Family Law Act 1975; s.60CC

Applicant:

MR JOSEPHS

Respondent:

MS LORENZO

File Number:

ADC 4244 of 2018

Judgment of:

Judge Brown

Hearing date:

15 February 2019

Date of Last Submission:

15 February 2019

Delivered at:

Adelaide

Delivered on:

15 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Roberts

Solicitors for the Applicant:

Lachlan McAuliffe

Counsel for the Respondent:

Ms Fuda

Solicitors for the Respondent:

Nikki Ireland

ORDERS

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Until further or other order the time for the father to spend with the child X be suspended.
Further consideration of the matter is adjourned to 10 April 2019 at 9:30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4244 of 2018

MR JOSEPHS

Applicant

And

MS LORENZO

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally immediately following the interim hearing concerned. Given the importance of the issue to the parties concerned, it is appropriate that the reasons be transcribed and provided to each of them.
It is also hoped that they will be of assistance to the Independent Children’s Lawyer, who will be appointed as a consequence of an order which will be made following the completion of these reasons.

Background

This afternoon, I have to deal with an application in which Mr Josephs is the applicant and Ms Lorenzo is the respondent. It is convenient to refer to Mr Josephs as “the father” and to Ms Lorenzo as “the mother” in these reasons for judgment.
The parties are the parents of X, who was born in 2008. So X has had her 11^th birthday last year and at this stage is about 11 years and four months of age.
As such, she is to be regarded as a child who is of an age when she is obviously capable of expressing a preference, but at the same time must be considered as being far from a full degree of maturity.
Mr Josephs commenced these proceedings on 12 October 2018. In his application, he concedes, on both an interim and a final basis that X should continue to live with her mother. The case, from his perspective, concerns what time he should spend with X.
At this stage, he proposes that X spend time with him each Saturday from 10.00am until 4.30pm and on each Sunday from 12.30pm to 4.00pm. He also seeks some time after school and some periods during school holidays.
It is common ground between the parties that the father has not spent any significant or meaningful time with X since his birthday, which was towards the middle of last year.
The father is critical of the mother for not, as he perceives it, supporting his relationship with X. From the mother’s perspective, she is supporting X’s wish not to spend time with her father due to an irreconcilable rift between the two, which the father’s own conduct has precipitated.
Against this difficult and emotionally fraught background, the father commenced these proceedings, seeking the court’s assistance to reinstate his time with X. He believes that if he just sees her he will be able to mend the rift between them.
It is his position that both prior to and after the parties’ separation, he saw the child regularly. From his perspective, there can be no proper explanation for the child’s apparent refusal to spend time with him apart from her mother’s negative influence on X.
The mother, in her answering material, has indicated that the parties began their relationship in 2007, married in 2010 and separated on 14 September 2012. The mother, sadly, acknowledges that she has had significant ill health.
She was diagnosed with cancer in 2017 and had to have extensive surgery and radiotherapy during 2017. So Ms Lorenzo has suffered a significant life-threatening illness, which necessarily must have implications for her level of psychological resilience – a state of affairs of which X must be well aware.
It is the father’s position that he has formed a relationship recently with another person and that it is as a consequence of that relationship that, in effect, the mother has taken to using X as a tool to punish him to satisfy her (the mother’s) own emotional needs because she cannot cope with the fact that he has moved on in his life.
On the other hand, it is the mother’s position that X has of her own volition, resulting from her own experience of him, decided that she does not want to spend time with her father. By necessary implication, Ms Lorenzo considers that it would be psychologically detrimental for X to be compelled to interact, with her father, against her wishes.
Today, Mr Roberts of counsel appears for the father. It is his position that the court needs to adopt a robust attitude to this situation, which in his submission can be easily put right if there is a direction that the child is to spend time with her father, and any problems will be soon resolved by the two interacting together.
The case has been the subject of a number of other court interventions prior to todays. These interventions have been directed towards brokering some form of reconciliation between X and her father. As will become clear in due course, these interventions have not been at all successful.

The proceedings to date

The case first came into court on 27 November 2018. At that stage, Mr Roberts again appeared, as did Ms Fuda, who is Ms Lorenzo’s counsel today.
At that stage, the parties agreed that X would continue to live with the mother and that there would be an order that Mr Josephs spend time with X at the City B Children's Contact Centre. The appeal of that approach being that it would provide a neutral and professional setting for X to spend time with her father.
However, prior to that intervention, it was also agreed to move to some informally supervised time, at either a play café or the McDonald’s in City C, with the time to take place in the presence of Mr D and/or Mr E and/or Ms F and/or Ms G.
No doubt, it was hoped that either such place would provide a child-focussed environment, which would appeal to X, and there would also be present some other persons with whom she was familiar, who would provide some form of emotional support.
I know that Mr E is Mr Josephs’ son. I will come to him in more detail in a moment. There was also an order that there be what is termed a child-inclusive family dispute resolution conference. Such conferences are recognised by section 11F of the Family Law Act.
The aim of such conferences is, in a shorthand way, for an independent and expert person to talk with the child concerned and ascertain what, if any, are the child’s views. That interaction occurred on 6 February and was conducted by Family Consultant Ms H.
Now, at this juncture, I appreciate that Ms H’s methodology has not been subject to any scrutiny and Ms H herself has not been cross-examined. What is clear is that the father does not accept that Ms H has necessarily got it right, so far as she has reported X’s feelings and in addition she has not had access to all the information, which was needed for her to accurately gauge what are X’s true views.
I also hasten to add that, at this interim stage, I am not in a position to conduct any lengthy hearing involving taking evidence from each of the parties. This case arises at the interim stage. Necessarily, it has to take place in a truncated form which requires it to be conducted only on the basis of a reading of relevant documents prepared for the case.
If the case goes to a final hearing – and I do not know whether that will or will not occur – it is at that stage each of the parties will go into the witness box and be cross-examined, which is likely to involve them being asked questions about their motivations. In addition, any expert can be questioned, including about any factors likely to be influencing X and her views.
But at this stage, I am not in a position to make definitive findings of fact about where the truth lies in this difficult case, particularly where it lies in respect of X and her views and what are the specific factors which have led her not to want to spend time with her father.
On the one hand, the father says he is a person who is the victim of the mother’s emotional neediness and, on the other hand, the mother says that the child, for reasons relating to her own preferences, particularly her own personal experience with the father, has said she does not want to do what the father wants and has consistently and vociferously expressed this view.
There can be no doubt that Ms H was aware of that dynamic, because in her memorandum to the court, she reports clearly that Mr Josephs explained to her that he was of the view that X was being negatively influenced by her mother and that her mother was hypervigilant or overprotective of her, and that the concerns that X has allegedly raised, about him, were all manufactured.
To Ms H, Ms Lorenzo reported that her relationship with Mr Josephs had been characterised by coercive and controlling family violence. She had prepared a list of her complaints regarding the father’s behaviour, which she handed to the family consultant. She indicated that she no longer wished Mr Josephs to exercise “control” over her following her diagnosis.
Ms Lorenzo alluded to a booklet which X had prepared, in which she indicated her reasons for not wanting to see her father. Ms Lorenzo indicated that whilst she accepted X should have a relationship with her father, she felt unable to force the child to attend. In this context, Ms Lorenzo wished to have sole parental responsibility for the child.
Ms Lorenzo told the family consultant that she did help X with the booklet but only because she has been concerned about X’s behaviour, which had led her to shut down and become selectively mute. Ms Lorenzo also acknowledges that X has reacted to her illness, which must have been very confronting for a little girl of X’s age, and has become more clingy to her mother.
Ms H alluded to other issues, as yet not fully examined, regarding Ms Lorenzo’s psychological history, and, indeed, Mr Josephs has been reported to have his own psychological issues. But again, at this stage, the evidence in respect of those is limited.
Anyway, to the family consultant, X said her mother was good, and she gave her lots of positives to her about her. She could not think of anything negative about her mum. Significantly, X provided the family consultant with her letter, which contained her reservations about spending time with her father, together with a booklet containing pictures and captions describing the reasons why she did not want to see him.
I suppose, as the case unfolds, that booklet is likely to be central, because no doubt it is Mr Josephs’ view that that is really the product of Ms Lorenzo rather than X herself. Although Ms Lorenzo agrees that she had a part in compiling it, it is her position it came from X.
In this context, Ms H did speak to X, and although there is no doubt that she expressed some difficulty discussing her father, she did attribute some negative emotions towards him describing her relationship with him as not really good because she was scared of him.
The child has also been engaged with a counsellor. That occurred at the mother’s initiative and, as I have already observed, it is the father’s position that he feels that that was a decision that was made without his input.
As a consequence, he is likely to be suspicious of such a process. In general terms, he generally fears that all of this is a self-fulfilling prophecy, and, to use a metaphor, he fears that X is on a boat on a sea drifting further and further away from him, and if something urgent is not done to bring the boat back, she will drift out of his life forever.
It is hard at this juncture to dismiss those concerns out of hand. What the family consultant said was this:
“This is a complex matter, but it seems evident that X is experiencing difficulty emotionally as a result of her family situation. Whilst it is recognised that Mr Josephs believes that X has been negatively influenced by her mother, the information that she provided to the writer was very detailed, and it seems unlikely that she could have created it all from imagination or solely from being coached. In addition, it is also recognised that the family has recently undergone trauma in relation to Ms Lorenzo’s cancer diagnosis and required treatment. As such, it is considered likely that this has also had an impact upon X, including uncertainty and concern regarding her mother’s prognosis, even though Ms Lorenzo has progressed well and is currently in remission.”
So Ms H, as I say, was somewhat cautious and recommended that it might be counterproductive to force X to spend time with her father. In that context, I think the evidence of Mr E is significant. Mr E is Mr Josephs’ 27 year old son. His affidavit has been filed on behalf of Ms Lorenzo.
Ordinarily, of course, the experience is that blood relatives align with blood relatives. I asked and was told that Mr E is not estranged from the father, and I do not think it is said that he has his own axe to grind and is weighing in on one side rather than the other because of his desire for gratification in some way.
Anyway, as I said, Mr E was to be part of the process of supervised time. He says that he was involved in the process. He went and spoke to X, and he says Ms Lorenzo encouraged X to go to see her dad and everyone said, “Look, you will be okay. You will be safe. It will be fun.”
TO which X responded, “No, I just don’t want to go” which was completely different to how he (Mr E) normally experienced her, which is she was happy and he has a good relationship with her. Mr E does not want to spoil his own relationship with X and did not force the issue. So I think that is a significant thing.
At this stage, whatever I do, I have to be satisfied that it is in X’s best interests at this stage. Of course, in the longer term, it may be very detrimental to X to lose the relationship with her dad, but I also have to consider the situation now.
It is essentially an assessment of risk. There are risks of X losing her relationship with her father. There is a risk that I will cause her emotional distress in the short to medium term. Those risks have to be balance against each other to reach an outcome in the child’s overall best interests.

Legal principles applicable

As I observed to Mr Roberts, in determining X’s best interests, I have to look to a long list of matters in the Family Law Act. They are contained in section 60CC of the Act.
I have to bear in mind particularly the benefits that a child will have from having a meaningful level of relationship with each of her parents, and those principles tie in with the objects and principles of the Act, which include that children have a right to know and be cared for by both of their parents regardless of whether their parents are married, separated or have never been married.
I am also to bear in mind that parents should agree wherever possible about future arrangements for the care of their children. So it is a significant thing when one parent decides alone on medical or psychological treatment for a child.
I am also to bear in mind, as a priority, the need to protect the child concerned from being psychologically or physically harmed, from being subjected to or exposed to abuse, neglect or family violence.
It is not asserted, I think, that Mr Josephs would abuse or neglect X. The parties’ relationship is clearly difficult, but there are no current allegations of family violence as I understand it. But it is the mother’s position that there is a risk, a significant risk, of psychological harm.

Discussion

At this juncture, if I do make the order Mr Roberts proposes and the child does become resistant, does become distressed, I am not sure how that can be managed. What is to be done? In addition, there are the additional considerations which are important but are usually given less primacy.
Their importance will depend on the individual circumstances of the case concerned. I have to consider, as I indicated, any views expressed by the child and any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views.
X is not an overly mature child. She is an articulate child. She is capable of expressing a view, but she is, as I say, only just 11. I have to look at other factors, and, clearly, she is likely to be influenced by her mother whom she loves, and her mother has been ill.
Clearly X has aligned with her mother. So I have to be careful about giving undue weight to the child’s views, but I cannot ignore them, I think. I also have to think of the nature of the relationship the child has with each of her parents and other people.
At this juncture, it seems clear that X’s major source of emotional support is her mother with whom she has lived since the parties separated, and, clearly, X, given her mother’s illness, feels highly protective of her.
At this stage, for reasons that are not entirely clear to me, her relationship with her father is under stress. I have to think of her relationship with other persons, and it seems that she does have a relationship with other members of her paternal family.
So it is not a case that she is entirely estranged from that side of the family. I also have to think of the likely effects on the child of a change in her circumstances abruptly, and, as I say, that causes me concern.
At this juncture, the way forward is not clear, and with the greatest respect to Mr Roberts who eloquently put his client’s position and was instructed to do so, I do not know how X will respond to an order that she just has to go, and, as I said to Ms Fuda, I am concerned that X will feel that – if I have arranged for someone to speak with her and she has been going to see a councillor – she will perceive that her views are just totally ignored, and that that will have a counterproductive effect.
At this juncture, I think I can only proceed cautiously. For those reasons, I do not think it would be in X’s best interests just to make an order that time be resumed given the failure of the supervised process and what has come out of the child inclusive report.
So for those reasons, I have come to the conclusion that at this juncture, I should make an order that the child be independently represented. This is to ensure X’s interests are protected and her views independently assessed.
This process will take about six weeks, and at this juncture, given the conclusions I have reached, I think I have no realistic alternative other than to suspend the current time spending arrangements and adjourn the matter until the independent children’s lawyer can come on board. So I will adjourn the matter for that to occur in about six weeks’ time which I calculate to be 9.30am on 10 April 2019.

For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 15 February 2019