Kimble and Fernandez

[2017] FCCA 3109

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIMBLE & FERNANDEZ [2017] FCCA 3109

Catchwords:
FAMILY LAW – Ruling on application for summary dismissal.

Legislation:

Family Law Act 1975 (Cth), s.11F

Applicant: MR KIMBLE

Respondent: MS FERNANDEZ

File Number: DGC 604 of 2015

Judgment of: Judge Burchardt

Hearing date: 6 December 2017

Date of Last Submission: 6 December 2017

Delivered at: Dandenong

Delivered on: 6 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Chislett

Solicitors for the Applicant: MDL Law

Counsel for the Respondent: Dr Alexander

Solicitors for the Respondent: Women’s Legal Service

Counsel for the Independent Children’s Lawyer: Mr Lynch

Solicitors for the Independent Children’s Lawyer: Peter Lynch

ORDERS

1. The order appointing the Independent Children’s Lawyer dated 2 November 2017 be discharged.

2. The application filed on 15 March 2017 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 604 of 2015

MR KIMBLE

Applicant

And

MS FERNANDEZ

Respondent

REASONS FOR JUDGMENT

1. This matter is, in one sense, strange.  The application presently before the court is a very important one but it is being heard and determined within a relatively narrow compass.  The respondent mother seeks the summary dismissal of the father’s application to spend time with the children with whom we are concerned.  The father seeks that the matter be set down for trial and that the children undergo family therapy to assist them in a reintroduction of the father into their lives. The father’s position is somewhat half-hearted but nonetheless supported by the Independent Children’s Lawyer. 

2. We are concerned presently primarily with three children:  X born on (omitted) 2006; Y born on (omitted) 2008; and Z born on (omitted) 2011.  It has been apparent since the father filed his very first affidavit in the court that an assault took place in 2013 by the father on one of the children and I point out that the elder two children and particularly X would be likely to have some memory of that. 

3. There has been virtually no time between the father and the children since 21 December 2013.  Indeed, Z does not know that the father is her biological father. The children have not seen the father since August 2014.  They have continued to live with their mother who commenced a new relationship with a Mr S and that relationship itself was extremely turbulent.  It was turbulent to a degree that in 2016 all three children were removed from their care by the Department of Health and Human Services, albeit they were not all placed in the same care regime. 

4. The mother has deposed, and Mr S has told various external authorities, that this was a wake-up call to them and they appear to have somewhat got over the difficulties that were attending them at that time.  It should be noted in parenthesis that both of the parents and probably Mr S as well have had difficult lives involving a number of traumatic events.  They must all have their vulnerabilities one way or the other.  A report was prepared for the Children’s Court.  It was provided on 10 October 2016. 

5. I have regard to all the matters in that report.  It noted, as I say, the very turbulent dynamic between the mother and Mr S but insofar as it dealt with the father in this case, it is noteworthy that the father blamed the mother for such family violence as it occurred.  He described himself as the victim.  I also note that the children expressed very clear views to the writer of that report that they did not wish to see their father and, indeed, they expressed a happiness with Mr S in their lives. 

6. On 25 October 2017 Mr M provided an 11F report.  The views of the elder two children remain clear.  They did not wish to see their father.  Mr M recommended family counselling.  He also noted that the children were happy with Mr S in their lives although Mr M drew attention to the fact that he had overheard Mr S describe the father as “the cocksucker” in the court precinct.  Mr M had not had the children’s court report before him.  I caused a copy of it to be made available to Mr M and asked him if he had any further comment. 

7. His further report is dated 4 December 2017.  Perhaps the most significant part of this is towards the end.  I note in passing that Mr M understood that Dr S, the writer of the children’s court report, was not impressed with the father and described him as “lacking any capacity to reflect on his part in the troubles, tended to blame Ms Fernandez’s mental state for those troubles and considered himself to have been the only victim.  He also seemed to resort to violent language and actions as a way of solving problems which tended to support Ms Fernandez and the children’s attitude towards him.” 

8. I note that Mr M expressed some qualifications as to the degree to which the mother and Mr S had sorted their difficulties out but I think, relevantly, for these purposes the passage in his report that I should read onto the record is as follows:

   A further issue in this matter is the considerable period of time since the children have spent time with Mr Kimble.  It was recommended in the early memorandum that prior to any spend time commencing it would be important for family counselling to occur.  This recommendation remains unchanged. 

   However the value of such counselling would require the cooperation of not only the children but also the mother and Mr S.  It could be argued that a positive and successful outcome of any such counselling is likely to be undermined because there is a ‘secondary gain’ for the mother and Mr S for the said counselling to fail as this would leave their (and the children’s) lives uncomplicated by the presence of Mr Kimble. It must therefore be considered whether it would be beneficial to embark on a counselling process that may well be doomed before it is commenced.  Even if the mother and Mr S engage positively in the process it may still fail because the children remain entrenched in their opposition to spending any time with Mr Kimble.  In this context it is worth noting that Mr Kimble stated during interview:  “Maybe I shouldn’t be doing this any more;” that is, he had begun to question whether he should proceed with his application to spend time with the children. 

Dr S stated (page 12) that: “It will take some considerable work with the children and Ms Fernandez, with the input of some creative thinking to find a solution to that problem (spending time with the children) for Mr Kimble.  It is also noteworthy that the children were assessed by Dr S (as well as during the s 11F assessment) as being a close and united sibling group. Although interviewed separately during the Child Inclusive Conference they were united in their opposition to spending time with their father.  Their views have therefore remained unchanged and consistent over a substantial period of time and it seems unlikely that family counselling will result in a change of heart particularly in the absence of any encouragement to do so in the home environment.” 
There are two further issues that give cause to question the value of asking the children to engage in a counselling process they are likely to resist; firstly, Mr Kimble’s parenting capacity remains unknown, particularly his ability to appropriately address challenges the children will undoubtedly present him without resorting to anger and/or violence.  Secondly, by the time any family counselling process is completed X will be nearer 12 years of age and her views may well be even more strident than they are now.  If counselling does not achieve change in her views she is likely to be more angry and resentful towards her father and this is likely to impact on the views of her siblings.

In the event the court proposes to make an order for family counselling it is recommended that CatholicCare may be suitable agency to undertake such work. 

It is proposed however that if family counselling is unlikely to result in change in the children’s views regarding spending time with Mr Kimble, is likely to further entrench their negativity about doing so, exacerbate any trauma they’ve experienced due to past family violence or expose them to probable family violence in the future,  that family counselling should not take place and any spend-time between the children and Mr Kimble should be reserved. 

1. The submissions of the parties were put in commendably economic ways.  Counsel for the father, Mr Chislett, emphasised that his client sought that the matter proceed to trial.  He noted and conceded that there was, however, some prospect arising from Mr M’s most recent report that counselling might be doomed to fail.  Dr Alexander for the mother pointed to the continuing lack of insight on the father’s part, the fact that his parenting capacity is unknown and pointed out that the children needed just to get on with their lives. 

2. Counsel for the Independent Children’s Lawyer, correctly, in my view, submitted that the matter was finely balanced.  He raised the prospect that there might be an interim defended hearing as to whether counselling should occur.  He noted that in the mother’s original response she had been amenable to the father sending cards and the like to the children to a post box. 

3. I clarified that matter with Dr Alexander who confirmed that not only can her client not afford a post box but she is in fact opposed to any further contact on the father’s part. 

4. I do not think that an interim contested hearing as to whether or not counselling should take place is likely to put the court in any better position to advance the matter.  The reality is that the report of Mr M, relevantly to my way of thinking, says this about the children:

   Their views have therefore remained unchanged and consistent over a substantial period of time and it seems unlikely that family counselling will result in a change of heart, particularly in the absence of any encouragement to do so in the home environment. 

1. And he goes on to note that the counselling process itself may revive trauma for the children who at least in the case of the two elder ones firmly believe that they have seen family violence even if that has been largely fomented by the mother and Mr S, albeit that, as I say, given their ages at the times of the conceded assaults I think the better view is more likely that they have at least some real memory of it themselves. 

2. It is no small thing to tell a parent who does love their children that they won’t be seeing them but in the end this case is all about the children’s best interests. 

3. Through no fault of their own they have lived in a number of extremely dysfunctional households.  The household they are in appears to have achieved a measure of stability for the moment and one hopes it lasts.  Like Mr M, I might perhaps slightly doubt whether that will be the case but let us hope for the best.  It’s clear that the mother and Mr S have a very definite view about the father.  Mr S, greatly to his discredit, is unable to avoid using obscene language about him in the court.  One can only wonder what he says when he is not so constrained. 

4. The chances of counselling actually succeeding in the face of Mr M’s qualifications is, in my view, insufficiently good to make it appropriate to proceed.  The children have expressed a very decided view over a protracted period of time.  There is a real risk that any endeavour to reintroduce the father – which will be undoubtedly resisted by the mother and Mr S whether covertly or otherwise – is simply not great enough to make it appropriate.  

5. It’s terribly unfortunate but in the light of all these circumstances and the risk to the children of further discord in lives that have already been all too scarred by all too much discord, is such that I decline to make the order for family counselling really not pressed by Mr M’s most recent memorandum.  In the circumstances the only order the court will make is that the father’s application is dismissed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  12 December 2017