MATENSON & MATENSON (No.2)
[2020] FCCA 1316
•19 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATENSON & MATENSON (No.2) | [2020] FCCA 1316 |
| Catchwords: FAMILY LAW – Parenting – undefended hearing – where the father filed a notice of discontinuance – where the Court heard submissions from all parties – family violence – allegations of abuse – risk – sole parental responsibility – children’s views. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC. |
| Cases cited: Collu & Rinaldo [2010] FamCAFC 53 |
| Applicant: | MR MATENSON |
| Respondent: | MS MATENSON |
| File Number: | BRC 2083 of 2017 |
| Judgment of: | Judge Howard |
| Hearing date: | 19 February 2020 |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 19 February 2020 |
REPRESENTATION
| The applicant attended as a self-represented litigant: |
| Solicitors for the Respondent: | Cornerstone Law Offices |
| Counsel for the Independent Children’s Lawyer: | Ms Bertone |
| Solicitors for the Independent Children’s Lawyer: | TLG Law |
ORDERS
Previous orders
That all previous parenting orders are discharged.
Parental responsibility
That the mother have sole parental responsibility for the children X born 2002, Y born 2004 and Z born 2006 (“the children”).
Lives with
That the children live with the mother.
Spends time and communicates with
That the children spend time and communicate with the father at all times as they may express a wish to do so and by any means they choose.
That the father is at liberty to send the children gifts and cards on special occasions being the children’s birthdays, Easter and Christmas, sent only to the mother’s mailing address.
Exchange of information
That:
(a)the parties shall ensure that they each have the other party’s current mailing address, email and mobile phone number and advise the other of any change within twenty-four (24) hours of any change; and
(b)the mother shall notify the father of any emergency relating to the health and wellbeing of any of the children, as soon as practicable.
Passport
That the children shall have an Australian passport and this order is authority for the mother to obtain passports for the children in the absence of the father’s signature or authority.
Overseas travel
That the children be permitted to travel out of the Commonwealth of Australia with the mother.
Other
That all outstanding applications, including the father’s application for contravention filed 25 September 2018, be dismissed.
That the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Matenson & Matenson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2083 of 2017
| MR MATENSON |
Applicant
And
| MS MATENSON |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 19 February 2020 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The matter before the Court relates to three children: X, born 2002; Y, born 2004, and; Z, born 2006. These three children are the children of the Applicant father, Mr Matenson, and the Respondent mother, Ms Matenson.
The parties in this case were married 2001. They separated in October 2016. They divorced on 28 January 2017. The parties reached a property settlement and orders were made in 2017. The parties have not been able to agree on parenting orders.
The father commenced proceedings on 2 March 2017. Between the date of separation in October 2016 and the date of commencement of proceedings in March of 2017, the children did not spend any time with the father.
In general terms, before referring to the various sections of the Family Law Act 1975 (Cth) (“the Act”) and the other relevant issues, I need to make some comment about the procedure for today’s purposes. The matter was set down for a final hearing in November 2019. Prior to the final hearing, the father filed a Notice of Discontinuance. Final orders were sought on the day of the hearing by the Independent Children’s Lawyer and on behalf of the mother, but those orders were not agreed to by the father, and the court heard submissions as to what process and what procedure should be in place, in terms of the final hearing.
The Court gave a decision on 11 December 2019 setting the matter down for an undefended hearing today, 19 February 2020. The Court made various other orders at that time, including an order that no party be permitted to cross-examine the other party or any other witnesses. The matter was to proceed by way of submissions. The father was also granted leave to make submissions, even though he had filed a Notice of Discontinuance. In the decision delivered on 11 December 2019 the Court particularly noted the decisions in Tate & Tate (2000) 26 Fam LR 731; Zane & Allan [2008] FamCAFC 115; and Chranley & Smart [2012] 47 Fam LR 581.
Ms Bertone of counsel, appears for the Independent Children’s Lawyer; Ms Singh-Pillay, solicitor, appears on behalf of the mother; and the father, Mr Matenson, attends as a self-represented litigant.
The proceedings were instituted in March 2017, and the matter came before the Court in July of 2017. An order was made by Judge Turner with the benefit of a family consultant’s memorandum by Ms A, dated 27 June 2017.
X, because of her age, was to spend time with the father and communicate with him in accordance with her wishes. She decided not to spend any time with the father. The next two children – Y and Z, by order of the Court, were to attend for counselling for reunification with the father, to be conducted by Ms B. Unfortunately, the counselling for reunification was not successful.
The matter went back before the Court after Ms C first family report. The matter came before Judge Jarrett in August 2018. By order of the Court, made by Judge Jarrett, the children were to live with the mother and spend time with the father. Firstly, X was to spend time with the father, in accordance with her wishes, noting her age. Secondly, Y and Z were to spend time with the father, supervised by D psychologists. The two children, Y and Z, refused to attend at D psychologists.
I note that, by 2018, Y was 14, and by 2018, Z was 12. The children refused to go. It is very difficult to make children of that age engage in a process that they are refusing to engage in. In any event, Ms C was commissioned to and did prepare a second family report.
The Court notes that, in this undefended hearing, there is before the Court two family reports by Ms C. Both of those reports are annexed to affidavits. Both have been filed in the Court. The first affidavit was filed 23 January 2018. The second was filed 22 November 2018. There is also the affidavit material that has been filed.
In making a parenting decision, the Court must have regard to the various provisions of the Family Law Act 1975 (Cth) (“the Act”). I note section 60B, subparagraph (1), which is contained in Part VII of the Act. Subparagraph (1) states that:
“60B. (1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;”
Certain words in that section are crucial. Those words are:
“…to the maximum extent consistent with the best interests of the child.”
Section 60CA of the legislation states that:
“60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC then sets out how it is that a Court is to determine what is in a child’s best interests. The primary considerations are stated in section 60CC, subsection (2):-
“Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
The children told certain things to the family report writer. They expressed their wishes, and they told the family report writer about their experiences with the father.
This case proceeded as an undefended hearing. The correct approach is for the Court to take account of the evidence that is before it – especially from the family report writer. I cannot see that there is any other outcome other than the Court accepting what is contained in the family reports. In Leone & Cino [2016] FamCAFC 224 from paragraph 61 the Full Court – when dealing with a case where the father had discontinued his application stated, inter-alia:-
“61…The evidence before the primary Judge was accordingly unchallenged…In a comprehensive judgment, the primary Judge dealt with all of the legislative matters required of her and applied the unchallenged evidence to the facts that she was required to determine and which underpinned her conclusion as to the appropriate orders to be made."
Where one party has filed a notice of discontinuance (as in the present case) the evidence of the other party and, for instance, the evidence filed by an Independent Children’s Lawyer, is unchallenged.
In relation to the allegations made by the children to the family report writer concerning harm which they say was done to them by their father, it seems to me that that evidence (because of the filing of the notice of discontinuance by the father) is unchallenged. If I am wrong about that, it makes no difference to the outcome for today’s purposes, because what is certain here is that the Court can have regard to the children’s wishes.
Section 60CC, subsection (3), sets out various additional considerations, and subparagraph (a) is the most important section of the Act for the purposes of these proceedings. It is important for the Court to consider the expressed wishes of the children. Section 60CC(3)(a) states that the Court is to consider: –
“60CC(3)(a) 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;”
In the most recent family report, I note the express wishes of X. In Ms C’s report, filed in November 2018 X’s wishes are stated from paragraphs 34 to 44 of the family report, which state:-
“34. In addition to meeting with the ICL, X chose to meet with me alone at my invitation as part of this updated assessment. X presented to have gained emotional maturity from our initial meeting in 2017, and she was articulate, calm and engaging throughout our discussions.
35. X commenced at E School for 2018. She feels she has settled well and is progressing well academically. Her focus currently is on her school work.
36. Currently, X feels stressed. She relates this to the upcoming trial of this parenting matter. She feels stressed about a possibility of Mr Matenson ‘coming back’ into our lives’, X is having nightmares. ‘I wake with nightmares that I walk downstairs and he’s there’.
37. X advised that she drove Y and Z to one of the visits at D psychologists. They stayed in the car and refused to go in. She noted, 'I saw how distressed they were. I told them to calm down, to do what they want. It was breaking my heart to see them like that'.
38. When asked about Y's toe, X was unaware of the association of his injury. She believes he accidently kicked it at school.
39. X advised that she had received a card from Mr Matenson for her birthday. It was a pink princess card. She offered that even has a young girl she was never into princesses. 'It felt like he picked up the first girly card he saw'.
40. About Mr Matenson, she stated, 'I'm sick of giving him chances. I don't want to keep worrying about him. I want to focus on my education'. X remains focused on going to university. 'I don't want to keep thinking about Mr Matenson'.
41. Regarding her mother, X advised that she has recently been unwell. This was a stressful time, but the family had good supports in place. She notes, 'she's always stressed'. Over the past two weeks, Ms Matenson's health appears to have stabilised.
42. When asked about how much Ms Matenson discusses the proceedings with her, X advised, 'I'd like to know more. I want to read everything. Mum just says when Court's on but that's really all. I want to know because I'm an overthinker'.
43. X was asked how she thought Ms Matenson would react if Y and Z did recommence time with Mr Matenson. She offered, 'When we were seeing him, she always said it was out choice. I think she'd let me see him if they wanted too'.
44. X offered, 'I don't want to see Mr Matenson and I don't want him to have anything to do with me'. X reconfirmed that she appreciated Ms F making the effort to meet them. She 'felt heard today'.”
By the time of that interview, X was aged 16 years and five months. It seems to me abundantly clear from the express wishes of the child, X, that she – to quote her again at paragraph 40:-
“I’m sick of giving him chances. I don’t want to keep worrying about him. I want to focus on my education.… I don’t want to keep thinking about Mr Matenson.”
That is a reference to the father. She said again at paragraph 44:
“I don’t want to see Mr Matenson and I don’t want him to have anything to do with me.”
The wishes of a child of that age have to be given a large amount of weight. Indeed, her wishes override any other considerations in the circumstances of this case.
Y is in the same position. He expressed his wishes. They are contained in the same family report. They are included from paragraphs 45 through to 53 of Ms C’s Family Report filed 22 November 2018:-
45. Y was also willing to meet with me alone. He presented as being engaging and responsive throughout our discussions and issues of coaching were not evident from him.
46. Y discussed his frustration and anger about the ongoing process. He explained that, 'I understand you 're all doing your best but it's very aggravating having to keep being dragged out of my own life just when I feel I'm changing and doing well'. He explained that he should be at school today, talking to his girlfriend, doing the typical things of a 14-year-old. 'But I'm being dragged out for stupid interviews when I've already said no, I don't want to see him. It's very aggravating'.
47. Y explained that the process and his father's persisted application to spend time with him is having a substantial impact on him emotionally. He offered, 'It's a lot considering I have anger issues I'm trying to work on and not become the man my father was'. Y continues to hear the negative denigration his father used to make of him, and this continues to doubt his self-worth and confidence. 'I have his voice in my head telling me I'm a disappointment. It's like a poison killing me until I give up'. The intrusion of the thoughts impacts his daily life at times. Y explains, 'Sometimes I can't focus at class and I get nothing done. The teacher asks, and I just say it's stuff at home'.
48. When asked about his broken toe, Y stated, 'I did it out of frustration with my father. His voice constantly goes in my head. There's these constant interviews and meetings, I let it get to me; I kicked my toe'. Y finds that acts similar to this make it easier to 'let the anger out'.
49. When Y gets things wrong at school, 'I have his voice constantly in my head telling me I'm a disappointment. When he lived with us, if I did not get a question right, I'd get constantly slapped on the head till I did it right. I was constantly told I was stupid and that I won't get anywhere. I don't ask my teachers for help because of what my past has been'.
50. Y also uses videogames, music and showers to feel some relief of his emotions and anger. He confessed, 'I've self-harmed in the past because of him'. He explained that he was required to attend D psychologists two times and he felt that he was being unheard. 'I don't see how many times I have to say I don't want to see him and why people don't understand that no is no. I don't want to see him, talk to him, or think of him. I just want him out of my life'.
51. Y advised that he has a solid range of supports in his life. These range from his therapist, to school mentors, school counsellor, peers, and Ms Matenson. Y advised that he cried and 'broke down in front of mum because of this interview. Mentally I'm exhausted with all the coming and going of Court'.
52. From Y's position, Ms Matenson is 'doing well. She's always been a strong lady. I try and help mum. She's one of my biggest influences with how she manages so much. She's always proud of the small things, Mr Matenson never was. I don't call him dad because he's not a father figure'.
53. Y's message to the presiding Judge is, 'I do not, do not want to see him, want to think of him, want to have any relationship with him because it's just aggravating. I'm missing time out with my friends and the people I love at school and at home because of this. It's time off school, I should be at the beach. People need to understand, "no means no"'.
Y, by the time he was interviewed was 14 years and three months of age. He discussed his frustration and anger about the ongoing process. He explained very clearly that he did not want to see the father, talk to him, or think of him. He wanted the father out of his life. He actually sent a message to the presiding Judge. This is recorded at paragraph 53 of Ms C’s 22 November 2018 report, where, I reiterate, this 14 year old said:
“I do not, do not want to see him, want to think of him, want to have any relationship with him because it's just aggravating. I'm missing time out with my friends and the people I love at school and at home because of this. It's time off school, I should be at the beach. People need to understand, ‘no means no’”
Z, who was then 12 years of age, was unwell on the day and did not want to be specifically interviewed concerning his wishes, however he had already indicated his wishes in a conference with the Independent Children’s Lawyer and the family report writer and his siblings. His views are expressed by the family report writer in paragraphs 55, 56 and other paragraphs of the family report field 22 November 2018. He also is very much against spending time with the father.
The father’s view is that the mother has poisoned the well and that she has manipulated the situation and coerced the children. The family report writer does not share that view. In the circumstances, it is the evidence of the report writer which is accepted.
The parties have put before the Court various orders. As I said to the father during his submissions, the orders he is seeking are not that different from those sought by the mother. The orders sought by the mother and the Independent Children’s Lawyer will be exhibit 2 today. The orders sought by the father are annexed to an affidavit filed on 7 February.
I will make an Order that all previous parenting orders are discharged. The next order will be in relation to parental responsibility. Now, these children have not spent any time with the father since separation. The level of conflict is extreme between these parents. There is absolutely no possibility that the parents will be able to reach any consensus. There is no possibility that the parents will be able to reach any agreement in relation to any important issue concerning these children. Given that the children are going to live primarily with the mother – solely with the mother – it is abundantly clear to the Court that the only order on parental responsibility that can be made, and is in their best interests, is an order for sole parental responsibility, noting, as I do, the strongly stated express wishes of these children not to spend time, or communicate, with their father.
Section 61DA talks about the presumption of equal shared parental responsibility. That presumption is rebutted in circumstances where there is family violence. There is in place a protection order. There is a large amount of evidence, including in the family report, of family violence.
By section 61DA(2), the presumption is rebutted. Even if I am wrong in relation to that view, it makes no difference. The circumstances are such – the conflict is so high – the parents have zero ability to communicate. Hence, the only order that can be made is an order for sole parental responsibility in favour of the mother.
There is no serious contest by the father that the children should live with the mother. So paragraphs (1), (2) and (3) of the orders sought by the Independent Children’s Lawyer are in the best interests of the children. Those orders will state:-
“Previous orders
1. That all previous parenting orders are discharged.
Parental responsibility
2. That the mother have sole parental responsibility for the children X born 2002, Y born 2004 and Z born 2006 (“the children”).
Lives with
3. That the children live with the mother.”
The father’s primary submission is that the children should be given a voice to choose to communicate with him or spend time with him, as they choose. I note paragraph (3) in the father’s draft – which is attachment A to his affidavit, filed 7 February 2020. It is similar to what the Independent Children’s Lawyer has proposed in paragraph (4) of her exhibit 2. The Independent children’s lawyer proposes:-
“…4. That the children spend time and communicate with the father at all times as they may express a wish to do so and by any means they choose.”
By this order proposed by the Independent Children’s Lawyer, the children will have a voice. The order says that the children spend time and communicate with the father at all times as they may express a wish to do so, and by any means they choose. They are old enough to make their own decisions. That order gives them the ability, the voice and the power to make the decisions that they wish to make concerning that issue.
If they decide to go to live with the father, that order permits them to do it. It is said by the father that paragraph (3) could contradict paragraph (4). But when Courts and family report writers and lawyers talk about children voting with their feet – this is what they are talking about. These children have, at this stage, voted with their feet. They are with the mother. They want to live with the mother and they have shown no intention at the moment of wanting to live with the father or have anything to do with the father. But, nonetheless, paragraph (4) gives them the right to do it, the power to do it, and the voice to do it, if they wish.
The father will be at liberty to send the children gifts and cards on special occasions, being the children’s birthdays, Easter and Christmas, sent only to the mothers mailing address. In his submissions today, I understood the father was happy for that order to remain, and I think that is reasonable. That is paragraph (5) of the Independent Children’s Lawyer’s draft order.
Paragraph 6 of the proposed orders states:-
“Exchange of information
6. That:
a. the parties shall ensure that they each have the other party’s current mailing address, email and mobile phone number and advise the other of any change within 24 hours of any change; and
b. the mother shall notify the father of any emergency relating to the health and wellbeing of any of the children, as soon as practicable.”
In relation to paragraph 6(a) the father wanted the children’s contact details, including email addresses and mobile phone numbers. I do not think that is a good idea. The children have expressed very clear views. The power needs to be with the children. That is to say, the decision needs to be with the children as to when they will contact the father. So, if, for instance, one of these children wants to pass on their mobile telephone number to their father, then they can do so. However, having regard to the family reports and the wishes stated and the conclusions of the family report writer – it is not in the best interests of the children to require that their contact details, (including their mobile phone numbers) be given to the father.
Paragraph (6)(a) proposed by the Independent Children’s Lawyer is in the bests interests of the children.
As to paragraph (6)(b), that is not disputed. It will stay as it is.
In relation to the passport for the children, given that there is an order for sole parental responsibility, given the express wishes of the children to live with their mother, given the fact that they will indeed be living with their mother, then they should have an Australian passport. And it seems to me that an order that grants authority for the mother to obtain passports for the children, in the absence of the father’s signature or authority, is appropriate, because it means the parents do not have to communicate about any issue. There is no chance that the mother and the father in this case are able, or will be able, to communicate in a constructive or a civil way. It is just not going to happen.
In those circumstances, the order proposed by the Independent Children’s Lawyer is in the best interests of the children.
As to overseas travel, given the sole parental responsibility order, noting the ages of the children, noting their express wishes, it is abundantly clear to the Court that it is in the children’s best interests that they be permitted to travel out of the country with the mother.
Finally, the other order sought by the Independent Children’s Lawyer (in exhibit 2) is appropriate – namely, proposed order number 9. The father has filed a notice of discontinuance. The father made no submission against the making of an order in terms of paragraph 9 of the Independent Children’s Lawyer’s draft. Paragraph 9 states:-
“Other
9. That all outstanding applications, including the father’s application for contravention filed 25 September 2018, be dismissed.”
Obviously, the other sections of the Act are not relevant. Section 65DAA is not relevant. There is no order for equal shared parental responsibility. It would not be in the best interests of the children. There is no order for equal time or substantial and significant time. Once again, it is not in the best interests of the children.
I have had close regard to all of the other subsections of section 60CC(3). It was made clear by the Full Court of the Family Court of Australia in Collu & Rinaldo [2010] FamCAFC 53 that a trial Court exercising jurisdiction under Part VII of the Act should highlight which of the considerations under section 60CC(3) are given greater weight. Obviously, in this case, it is section 60CC(3)(a): the wishes and views of the children. That consideration far outweighs the other matters referred to in section 60CC(3). It is also the case that the Court has noted and takes into account section 60CC(2)(a) and (b). The contents of the family report are particularly relevant to these two subsections. The other additional considerations contained in section 60CC(3) have been considered in these Reasons for Judgment without a specific mention of the subsection involved.
I am very mindful of section 60CC(3)(l), which requires the Court, in the making of an order under Part VII of the Act, to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. The orders that are least likely are the orders proposed by the Independent Children’s Lawyer. For instance, it would be a minefield if the Court were to put in place non-denigration orders or orders in relation to physical disciplining, etcetera, as sought by the father.
The orders proposed by the Independent Children’s Lawyer, as I said earlier, when one has a close look at them – they are not altogether different from what the father was seeking.
In the circumstances, the orders proposed by the Independent Children’s Lawyer – all of the orders, word for word (save for typographical errors) – in exhibit 2 are in the best interests of the children.
They will be the final orders. This matter is concluded.
There will be an order for the discharge of the Independent Children’s Lawyer.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 26 May 2020
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