Mertens and Mertens
[2020] FCCA 207
•19 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MERTENS & MERTENS | [2020] FCCA 207 |
| Catchwords: FAMILY LAW – PARENTING – Child aged 10 – where after a trial in 2014 the father was found to pose an unacceptable risk of harm to the child for reasons including but not limited to his conviction for sexually assaulting a child in New Zealand – where the mother and the Independent Children’s Lawyer asked the trial judge to make an order for the child to spend supervised time with the father and such an order was made – where the arrangements for the child to spend supervised time with the father broke down in 2016 and where the child has spent only two hours with the father in the last 3 ½ years – where the mother seeks the discharge of the order for supervised time, the discharge of some of the other orders made in 2014 and an order that the child spend no time and have no communication with the father – where the father opposes this and seeks at the very least re-instatement of supervised time – where the father put forward no practical proposal for how supervised time could occur – where the father is litigious, pedantic and combative and where the mother is fearful of him and worn out trying to cope with his behaviour – where there is no benefit to the child in the court making an order for time in any form and where such an order would place an unacceptable burden on the mother – order made for the father to spend no time and have no communication with the child and for some of the other orders made in 2014 to be discharged. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC |
| Cases cited: Mazorski & Albright (2008) 37 FamLR 518 Mertens & Mertens [2016] FCCA 1837 Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MS MERTENS |
| Respondent: | MR MERTENS |
| File Number: | NCC 2009 of 2013 |
| Judgment of: | Judge Terry |
| Hearing date: | 29, 30 & 31 January 2020 |
| Date of Last Submission: | 31 January 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 19 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mooney |
| Solicitors for the Applicant: | Legal Aid NSW Newcastle |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mrs Kearney |
| Solicitors for the Independent Children’s Lawyer: | NLS Law |
ORDERS
All previous Orders concerning [M] born … 2009 (“the child”) are discharged.
The child shall live with the mother.
The mother shall have sole parental responsibility for the child.
The father shall spend no time with the child.
The father shall have no contact or communication with the child including but not limited to by means of sending her letters, cards, gifts, text messages, photographs, emails or engaging her by the use of any other digital or social media, and the father is restrained from directing, authorising or permitting another person from doing so on his behalf or for his benefit.
Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of the mother and the child, the father is restrained from entering upon or approaching within 50 metres of:
(a)the mother’s residence; and
(b)any school attended by the child.
Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of the mother and the child, the father is restrained from approaching within 50 metres of the mother and/or the child.
The mother is restrained from denigrating the father in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of any other person denigrating the father.
The mother is restrained from discussing these proceedings (including its emotional and/or psychological effect upon her) in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person doing so.
The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.
The mother is at liberty to provide a sealed copy of these Orders to:
(a)the principal of any school attended by the child; and
(b)her current and future employer/s (as may be applicable).
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
IT IS NOTED that publication of this judgment under the pseudonym Mertens & Mertens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2009 of 2013
| MS MERTENS |
Applicant
And
| MR MERTENS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 3 July 2014 final orders were made in the Family Court of Australia which provided for M, born on … 2009, to live with her mother, for the mother to have sole parental responsibility and for the father to spend supervised time with the child for two hours once per fortnight.
An order was also made permitting the father to send the child letters, cards and gifts on three occasions each year.
The order for supervised time broke down in September 2016 and on 14 August 2018 the mother filed an application seeking to have it discharged. She also sought to have the letters cards and gifts order and the order requiring her to notify the father of medical emergencies, illness and injuries suffered by the child discharged and sought an order that the father spend no time with and have no communication with the child.
This remained the mother’s position at the end of the hearing.
The mother said that supervised time had ended in September 2016 because the father picked a fight with the supervisor over the meaning of the 2014 orders. She said that M no longer wanted to spend time with him and there would be no value to M in trying to revive supervised time
The mother said that she was fearful of the father to the point where she had collapsed outside the courtroom after one court event. She said that he had inundated her lawyer with correspondence about the orders and that if orders which obliged her to facilitate time, pass on letters cards or gifts or provide information to the father about M remained in place she would face something similar when her lawyer ceased to be engaged and she could not bear the thought of it.
The father’s proposals have varied during the current litigation.
In his response filed on 31 October 2018 he asked that “a meaningful relationship be re-instated” and sought an order for 50/50 shared parental responsibility and 50/50 time during school holidays.
In the Case Outline document he filed at the commencement of the hearing the father said that he was seeking an order that the child live with him and that he have sole parental responsibility for her. However it became clear during cross-examination that his goal was simply to be able to spend time with her, and while maintaining his live with proposal at the end of the hearing he did not strongly argue for it; the order he argued for was that the child spend time with him supervised by his partner Ms B.
The father opposed the court discharging the letters, cards and gifts order or the order requiring him to be kept advised about medical matters and he also sought the following:
Leave to bring the matter back before the Court upon receipt of a detailed Clinical Psychologist Report after any and all issues of Family Violence and Abuse notwithstanding Parental Alienation which has been outlined during these proceedings file number (P)NCC 2009/2013 in the Federal Circuit and Family Court of Australia at Newcastle.[1]
[1] Exhibit “I”.
The Independent Children’s Lawyer proposed that the existing orders for the child to spend time with and communicate with the father and for the father to be able to send the child letters cards and gifts be discharged and that the child spend no time with and have no communication with the father. She also supported the discharge of the order requiring the mother to keep the father advised about medical issues.
She supported a restraint being placed on the father approaching within 50 metres of the mother and child which would be in addition to the existing restraints on the father approaching the mother’s home or the child’s school.
The Rule in Rice & Asplund
Final parenting orders were made on 3 July 2014 after a three day trial in the Family Court. Comprehensive reasons for decision were delivered and the father unsuccessfully appealed the orders.
A fresh application for parenting orders has now been filed and the following passage from the 1979 case of Rice & Asplund is highly relevant:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as counsel for the appellant submitted, change is an ever present factor in human affairs.
Therefore, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step. Some new factor arising, or at any rate some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require a court to consider afresh how the welfare of the children should best be served. These principles apply whether the original order was made by consent or after a contested hearing. The way they apply, and the factors which will justify the court in reviewing a custody order, will vary from case to case.[2]
[2] Rice & Asplund (1979) FLC 90-725
Nothing had occurred since the 2014 orders were made which would justify the court reconsidering the order that M live with the mother, the order that the mother have sole parental responsibility or the order that the father spend only supervised time with her.
The trial judge was satisfied in 2014 that the mother was capably parenting M and that has not changed.
The trial judge was satisfied that the mother should have sole parental responsibility, saying as follows:
Even if the presumption of equal shared parental responsibility did apply, the parties and Independent Children’s Lawyer all agreed no such order should be made because it would not be consistent with the child’s best interests. Their mutual view was that the residential parent should have sole parental responsibility for the child because the parties were incapable of co-operation over decisions related to her care, welfare and development. The Family Consultant concurred.[3]
[3] Family Report, paragraph 107
Nothing has changed as far as the parties’ capacity to co-operate over decisions related to M’s care, welfare and development is concerned.
The order for supervised time was the result of the trial judge finding that the father posed an unacceptable risk of sexual harm to M. He said as follows:
The evidence which establishes the father does pose an unacceptable risk of harm to the child through her sexual abuse encompasses, in summary:
(a) His sexual intercourse with a child aged 15 years when he was aged 19 years. Even though the sexual relationship was consensual, the child’s immaturity vitiated her consent. The father likely took advantage of his superior emotional maturity.
(b) His brazen home invasion and terrifying sexual attack upon a 12 year old child in the dead of night when he was aged 35 years.
(c) The “possibility” of his sexual impropriety with the children of his second marriage, albeit such allegations found no favour with the New Zealand Court which heard and determined those parenting proceedings.
(d) The father’s honest perception that “young girls and women” are infatuated by him and continually accost him, which self-belief in his physical appeal dovetails with his second wife’s allegations that he is flirtatious with young girls and women.
(e) His refusal to accept responsibility for his past misconduct, which tends to prove his willingness to prey upon those he perceives to be vulnerable or those he feels able to sexually beguile.
(f) The “possibility” of his past sexual abuse of the child.
(g) The father’s immodesty and frequent nudity in his own home, which behaviour is not modified in the presence of the child. As the Family Consultant said in cross-examination, there are different ways to regard that behaviour. On the one hand, it might be entirely normal and benign, but on the other, it might de-sensitise the child to nudity and blur the boundaries of propriety, making her sexual molestation easier to achieve.
The best available evidence is that the father remained a “high risk” of recidivism to the sexual abuse of children shortly before his release from custody and he remains a “reasonably high risk” of recidivism now, since his denial of guilt and lack of contrition for the offences remains unchanged. The father’s bald assertion that he poses no risk of harm to the child at all is unpersuasive.[4] When he was challenged in final submissions to explain why that was so he was unable to offer any cogent explanation.
The only way to satisfactorily avert the risk and protect the child from harm is to ensure she visits the father under professional supervision at a commercial contact centre.
[4] Father’s affidavit, paragraph 260
Nothing has changed in this regard either. The father has not admitted that he perpetrated the child sex abuse offences in New Zealand, undergone a sexual offender’s rehabilitation course of some kind or done anything at all to assuage the concerns raised about him in the 2014 judgment.
There is no justification for me reconsidering the order about the child living with the mother, the order about sole parental responsibility or the order about the child spending only supervised time with the father but there is justification for me considering whether the supervised time order should be discharged given that it has broken down, and the evidence at trial provides ample justification for me considering whether the letters cards and gifts order should be discharged, whether a further restraint on the father approaching the mother and child should be made and whether any of the other 2014 orders which require the mother to keep the father informed about matters concerning M should be discharged.
Within that limited compass I am satisfied that it is appropriate to reconsider parenting arrangements for M.
The evidence
The mother relied on her affidavit filed on 23 December 2019 and the affidavit of her partner Mr C filed on 8 January 2020 and she filed a Case Outline document.
The father relied on his trial affidavit filed on 24 January 2020. It was filed very late but Counsel for the mother and Counsel for the Independent Children’s Lawyer did not object to him relying on it.
The father also relied on the affidavit of his partner Ms B filed on 21 January 2020.
The father sought to rely on the affidavit of his adult daughter Ms D but in the end he was not permitted to do so. Ms D lives in New Zealand and was not available for cross-examination at a time suitable to the court.
Ms D spoke positively about her father and said that he had fought to remain part of her life and had never been violent to her or to her siblings or any other person. She lamented that M had not been able to be part of her family.
In light of the issues I need to decide this evidence would not have assisted me.
The father filed a Case Outline document at the beginning of the hearing and a Minute of Orders Sought at the end.
A family report was prepared by Ms E who was at the time a family consultant employed by the court.
Ms E also prepared a family report in 2013. I did not receive it into evidence as it was before the Family Court in the 2013 proceedings and was comprehensively considered in the 2014 decision. The father was however permitted to ask the family consultant questions about it.
The Independent Children’s Lawyer relied on the report and also filed a Case Outline document.
The mother, Mr C, the father, Ms B and Ms E were all cross-examined.
Background
The mother is 40 and the father 59. They married in Country F, the mother’s country of birth, on … 2007 and the mother came to Australian in April 2008 when granted a visa.
The parties lived in Region G, NSW until they separated on 3 April 2013. M, born on … 2009, is their only child.
The parties continued to live under one roof until July 2013 when the mother left the former matrimonial home with M.
On 15 August 2013 the father filed an application for parenting orders in the Federal Circuit Court. In her response documents the mother raised a concern about whether the father may have inappropriately touched M and on 13 September 2013 the matter was transferred to the Family Court where it was dealt with as a Magellan matter.
On 6 November 2013 orders were made by consent for M to spend time with the father once per fortnight supervised by BB. The orders did not specify that the supervised time was to take place on a weekend and if I understand the mother’s evidence correctly it variously took place on Monday, Wednesday and Thursday.
A trial took place on 16, 17 and 18 June 2014 and on 3 July 2014 a decision was delivered and the following order was made about the father spending supervised time with M:
(4)Each of the parties shall take all reasonable steps to ensure that the child spends supervised time with the father for not more than two hours each alternate weekend on the conditions set out hereunder.
(5)In the event the father fails to attend two consecutive scheduled visits with the child in accordance with Order 4 hereof, unless otherwise agreed, Order 4 is discharged and each of the parties shall instead take all reasonable steps to ensure that the child spends supervised time with the father for not more than two hours on or about the first weekends of March, June, September and December each year on the conditions set out hereunder.
(6)For the purpose of implementing Orders 4 and 5 hereof:
(a) The supervisor of the time spent by the child with the father shall be staff of “BB” or some other person or entity nominated by such staff or agreed between the parties (“the supervisor”);
(b) Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;
(c) The time that is to be spent by the child with the father each fortnight shall commence at the time designated by the supervisor;
(d) The venue at which the time is to be spent by the child with the father each fortnight shall be designated by the supervisor;
(e) The father shall pay all costs due to the supervisor;
(f) The mother shall cause the delivery of the child to, and the collection of the child from, the supervisor at the commencement and conclusion of the time spent by the child with the father;
(g) The mother and father shall comply with all reasonable requests and directions of the supervisor; and
(h) Leave is granted to the parties to provide to the supervisor a sealed copy of these Orders.
The orders made on 3 July 2014 provided for the supervised time to take place on a weekend but it in fact continued to take place on a weekday as had been occurring since November 2013. Immediately prior to the last visit in September 2016 it was taking place on Thursday from 4.00pm to 6.00pm at Suburb J Library.
On 29 September 2016 the father failed to turn up for a visit.
BB cancelled the next visit which was scheduled for 13 October 2016 because despite their repeated requests the father had failed to pay for the two previous visits.
In correspondence with BB the father said that he was unable to pay the outstanding invoices due to their non-compliance with Order 4 which provided for the time to take place on a weekend. He said that this was a purposeful breach which had occurred with regularity over several years and had cost him approximately $187,000.00 being loss of his business income.
The father eventually paid the arrears but he continued to insist that any future visits should take place on a weekend. BB told him that they would not schedule a visit on Saturday or Sunday unless the mother agreed. She did not agree and said in her trial affidavit that time on Saturday and Sunday did not suit her or M due to her work commitments.
BB repeatedly informed the father that he had previously agreed to visits taking place on weekdays. For example in an email to him dated 10 October 2017 they said as follows:
In relation to the weekends, your visits did previously take place on a weekday (Thursdays and Mondays.) This was due to both yourself and [Ms Mertens] making an agreement for this to occur. Order (4) was maintained (up until 29/9/2017 (sic)) on a weekday as opposed to the weekend. You did both sign the agreements for this to occur and you did attend these visits, on a weekday. [5]
[5] Tender Bundle page 84
In 2017 the father attempted to arrange mediation to discuss the issue but the mother declined to attend. In her trial affidavit she said that this was because she found the father intimidating and she would not be legally represented at the mediation.
In 2018 the mother’s solicitor became involved again and in June 2018 a visit supervised by BB was arranged for 7 June 2018. However Order 5 of the 3 July 2014 orders provided that if the father missed two consecutive visits his time would become quarterly. The mother’s solicitor considered the June visit to be a quarterly visit in accordance with Order 5. The father however began sending emails demanding that the time recommence once a fortnight.
BB had to this point been extraordinarily patient with the father. They had responded to his frequent emails and repeatedly explained their position to him notwithstanding the father threatening to bring contempt proceedings against them and to make a complaint about them to a professional body. However on 22 June 2018 they advised the father by email that they were no longer willing to provide a service.
The mother’s solicitor wrote to the father asking him to nominate an alternate professional service to provide supervision. The mother said and I accept in the absence of contrary evidence that the father did not respond.
On 14 August 2018 the mother filed an application seeking the discharge of many of the 3 July 2014 orders and an order that the father spend no time with and have no communication with M.
On 30 November 2018 the father filed a response in which he sought an order “that his meaningful relationship with the child be re-instated.” On an interim basis he sought an order that M spend time with him from 8.00 am to 6.00pm on a Saturday, Sunday or a public holiday and on a final basis he sought “50/50 shared parental responsibility” and an order that school holidays be shared 50/50.
After the matter came before me I suspended the spend time with orders. The father had seen M only once in two years and had previously filed contravention applications and I did not want that to occur again and complicate matters. I conducted an interim hearing on 14 March 2019 as to whether that suspension should continue and made an order that it should.
In due course a family report was prepared and the matter was listed for hearing.
M’s best interests
Any orders I make about M must be orders determined by treating her best interests as the paramount consideration.
S 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine M’s best interests. I intend to start by making findings about the additional considerations in s. 60CC (3) and then return to the primary considerations in s. 60CC (2).
I must consider any views expressed by the child and any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
There is no evidence that M has a clear view about whether she should spend time with her father.
The mother said that from the very beginning of supervised visits M had expressed some reluctance to attend. However the notes of the supervised visits which occurred between 2014 and September 2016 suggest that M had a reasonable time with the father. The family report writer provided some detail from the contact centre records in her report and there is reference in those records to M being excited/happy to see the father and having an enjoyable time with him.
The family report writer’s evidence in this regard was not challenged at the hearing and it is broadly consistent with what M said to her in May 2019. She reported M saying as follows:
…when she was seeing her dad “sometimes before I go over there I feel not very good, scared and worried and I cry a lot”. She said when she did spend time with him it was “sorta fun but at the same time I missed mum a lot”.
The mother said that that M did not miss her father after the visits stopped in September 2016 and cried when she told her that a visit had been organised for 7 June 2018.
The visit on 7 June 2018 did not go so well and the family report writer said as follows about the notes of that visit:
The dynamic in the session was notably different to that observed in 2016. M presented as quiet. The father made numerous attempts to engage M in conversation without any real success. M did become engaged in a game, but most talk was around the game. The father was noted to be upbeat, smiling and engaging. There was some concern that the father tended to converse about issues relating to himself. It is noted for example, that the father proceeded to tell M a long winded story about family, he was laughing and continued telling M about it although it was “clear to the supervisor from her non reaction and facial expressions as well as her keen interest in the book over [Mr Mertens]’s story, she was not at all interested but was listening as though being polite”. In other conversation it is noted “Most of the time M would just look at [Mr Mertens] politely but not respond”. “At times he seemed to continue to talk about things (about himself) when it was clear to the supervisor M was disinterested. The supervisor concluded he may have been filling in the quiet silences”. At the conclusion of the visit the father said to M “Has anyone said when you are seeing me next. I’m not allowed to say anything M. All I can say is I’m trying to see you every week, always, you hang in there. Give us a cuddle. M gave [Mr Mertens] a cuddle”. [6]
[6] Family Report paragraph 21
The father took issue in his Case Outline document with the accuracy of BB report about the visit on 7 June 2018. However the accuracy of the family report writer’s account of it was not challenged by Counsel for the Independent Children’s Lawyer, it is extremely unlikely that the supervisor who attended this visit made egregious errors in describing it and the description of M’s behaviour is credible given that she had not seen the father for nearly two years.
On 25 January 2019 M attended a child inclusive child dispute conference with Ms I, a family consultant. Ms I said this:
The family consultant asked M about the time she use to spend with the father at Suburb J library. M then started to cry and said she use to have a nice time with the father, but initially she would cry because she did not want to go. When asked why she cried, she said she did not know as the father has never hurt her and has never yelled at her. She said she could remember a time when the mother and father were yelling at each other in the office, but other than this one occasion the father has never scared her”. “M was asked how she would feel if she never had to spend time with the father again. She had tears streaming down her face and said, “I’d feel really sad.” [7]
[7] The CIC Memorandum was not before me but this part of the Memorandum was quoted in the Family Report.
On 24 May 2019 M told the family report writer that she would feel “scared and worried” if the Judge decided that it was best for her to see her father.
M declined to be observed with the father at the family report interviews on 24 May 2019 but I cannot read too much into that as she came to the interview with her mother and is finely attuned to her mother’s emotional state.[8]
[8] Family Report paragraph 24
The things M has said over the years (that she did not want to attend supervised visits, that she would feel sad if she did not see her father again or that she would be scared and worried if the court made an order that she had to spend time with him) are indicative of her state of mind at various points of time but they are not evidence of her having a view about future parenting arrangements.
The best that can be drawn from this evidence as a whole is that M is not expressing a wish to see her father but neither is she expressing an absolute opposition to doing so.
I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent or other relative of the child.
M has a close and meaningful relationship with her mother and I have no reason to doubt that she has a good relationship with the mother’s partner Mr C as the mother and Mr C claim. Nothing adverse is known about Mr C and he seemed pleasant in the witness box.
M has had a very limited relationship with her father since she commenced spending supervised time with him in November 2013.
BB notes suggest that during 2014-2016 she spent a happy two hours per fortnight with him which involved craft, games and conversation. They suggest that she tolerated the visit on 7 June 2018 but without real enthusiasm.
M has no relationship with her father at present; she has not seen him for 3 ½ years save for one two hour visit over 18 months ago. There is some force in the following opinion expressed by the family report writer:
Attempts could be made to re-build the daughter/father relationship to one which is meaningful. It is anticipated, however, that the lack of a pre-existing strong and meaningful relationship, the lengthy period of time which has elapsed, M’s older age and the necessity of supervised time into the future would directly impair the ability of a meaningful relationship to be re-built. [9]
[9] Family Report paragraph 134
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support the child.
The father does not pay child support because the mother has exemption from seeking it.
As a result the mother is the sole provider of financial support for the child. It is important that she is able to attend her workplace without fear that the father may turn up and confront her.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the child, to spend time with the child and to communicate with the child.
The father would be spending supervised time with M today if he had not been so stubborn and difficult.
He failed to pay the fee for two consecutive supervised visits in September 2016 causing BB to cancel the next visit.
After he paid the arrears he began to argue endlessly and fruitlessly with BB about the fact that they intended to schedule future visits on a weekday rather than a weekend and no further visits were organised.
Once the mother’s solicitor was re-engaged the father began arguing with her about the weekday/weekend issue.
Finally a visit was organised in June 2018 but the father then began arguing about whether the visits should revert to being fortnightly. BB became sick of it all and refused to be further involved. The mother’s solicitor wrote to the father asking him to propose an alternative supervision service. He did not respond.
The father’s actions have led to the child seeing him only once in 3 ½ years and becoming estranged from him.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
M is 10 years old. The only time she has spent with her father since she was 4 years old is supervised time once per fortnight. She has seen him only once since she was 7 years old. If she continues not to see her father it will not represent a change in her life as it has been for the last 3 ½ years.
M is being well cared for by her mother. Aside from the entry in the Child Inclusive Memorandum in January 2019 there is nothing to suggest that she is grieving over not spending time with him her father.
If the order concerning letters cards and gifts is discharged it will mean that on three occasions each year M will not get a present or a card from her father. However the mother gave compelling evidence in the witness box that M did not show much interest when letters and gifts turn up from the father.
I must consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is a practical difficulty in this case arising from the need for the child’s time with the father to be supervised.
BB, the default supervisor named in the 2014 orders, have now refuse to provide a service and the father did not suggest any other professional supervision service which might be suitable. He proposed that supervision be conducted by his partner Ms B.
In his reasons for judgment the trial judge said that in light of the risk factors the child’s visits with the father should take place “under professional supervision at a commercial contact centre.” However this is not replicated in Order 4 which provides as follows:
The supervisor of the time spent by the child with the father shall be staff of “BB” or some other person or entity nominated by such staff or agreed between the parties (“the supervisor”)
It would not be inconsistent with the order 4 for a named individual rather than a named contact service to supervise M’s time with the father. The mother does not consent to Ms B supervising the time but if I determined that it was in M’s best interests for supervised time to resume and that Ms B was a suitable supervisor I could vary Order 4 and make an order for Ms B to be the supervisor.
I therefore need to consider whether Ms B would be a suitable supervisor.
Earlier in the judgment I set out in full the reasons why the trial judge considered that the father posed an unacceptable risk of harm to M and it is clear from those reasons that the trial judge considered that the father’s time with M needed close supervision to protect her from risk of sexual harm.
However M also needs protection from exposure to the father’s views about his guilt in respect of the child sexual assault convictions and his view that the trial judge was wrong to order supervised time.
The father agreed in cross-examination that he would like M to believe that he did not commit the offences for which he was convicted in New Zealand and said that he would tell her his version of events when the right time came. He was asked when the right time would come and he replied:
Fairly soon
Notwithstanding that his appeal against the trial judge’s orders was dismissed the father insisted at the hearing before me that the trial judge was wrong. He annexed to his trial affidavit the Summary of Argument which he filed for the appeal which included the following:
The result being 3 July 2014 Orders albeit the father having done nothing wrong and everything right being focused on family and career, now being quasi convicted for Unacceptable Risk of Harm with the punishment being quasi community sentence together with their implications notwithstanding total loss of any credibility been gained and or trust and loss of liberty, being direct result from the whim of the mother with having quasi concern for the child.
The child having been stolen away from an extraordinary proactive parent father to co-operate calmly given no choice but to accept a quasi Meaningful Relationship that being considered in the Best Interests of the Child – Go Figure![10]
[10] Page 22 of the father’s affidavit.
It would be psychologically damaging for M to have to deal with the father trying to convince her of his innocence of the criminal charges or convince her that the findings made about him by the trial judge were wrong.
Ms B is not a suitable person to protect the child from either of those risks.
Ms B accepts without reservation the father’s assertion that he did not commit the offences for which he was jailed in New Zealand. During cross-examination she said that the father had explained to her that his fingerprints were on a window at the child’s house because he had been delivering something at that time and had gone around the house trying to see if anyone was at home.
Ms B believes that the judge and jury who dealt with that case got it wrong.
Ms B said that she had read parts of the 2014 judgement and that nothing in it caused her to doubt what the father had told her about the allegations made about him. It is her view that the father was hard-done by at the trial because he represented himself.
Ms B said that she did not accept the opinions expressed by the family report writer in the 2019 report. She said that upon meeting the report writer and having a conversation with her she felt that the report writer was biased in her opinions about the father and his background.
Ms B has a strongly negative view of the mother. In her affidavit she recited allegations by the father that the mother screamed, yelled and threw objects during their relationship and had been sacked from her employment as a result of an altercation with a colleague.
Ms B agrees with the father’s assessment that the mother has alienated M from him. She said as follows in her affidavit:
[Mr Mertens] tried many times to communicate with [Ms Mertens] to arrange visits with M but with no reply. [Ms Mertens] states in her affidavit that she has always encouraged M to continue engaging in a relationship with her father yet she did not respond to any of the communications with [Mr Mertens] to continue with visits. I believe that this was “deliberate and [m]alicious” actions by [Ms Mertens] and she did not want the inconvenience of having to comply with arrangements as set out in July 2014 orders.[11]
[11] Paragraph 46 of Ms B’s affidavit.
Ms B set out in detail in her affidavit why she believed that the mother was not intimidated by the father and was feigning distress at the idea of having anything to do with him. She re-iterated during cross-examination that this was her belief.
Ms B is unwaveringly partisan to the father. She is in no position to protect the child, whether it is in terms of protecting her physical safety or protecting her emotional safety by shielding her from inappropriate views and comments by the father.
Ms B said that she would sign an undertaking promising to faithfully carry out her role as a supervisor but that does not assuage my concerns about her suitability as a supervisor.
Even if I was minded to make an order for someone other than a professional supervisor to supervise the father’s time with M it could not be Ms B. However in light of the 2014 reasons for decision and the risks outlined earlier I consider that the only appropriate supervisor is either a professional contact centre or an organisation such as BB which provides professional supervision.
I must consider the capacity of each parent to provide for the needs of the child including her intellectual and emotional needs.
The mother is doing a very good job caring for M. However she is worn out by the court proceedings and extremely stressed at the thought of having to communicate with the father once the proceedings are over and her legal representation ceases. She said as follows in her affidavit:
I can personally no longer tolerate the process, or the thought of the process, of trying to organise time between M and [Mr Mertens]. I am unable to directly make the communications sought by him or which might be necessary in trying to come to agreements and make ongoing arrangements with [Mr Mertens]. It seems that [Mr Mertens] will agree with virtually nothing that is put to him on any reasonable basis and he becomes fixated on technical or incorrect interpretations of the orders, of legislation and legal principles. I cannot bring myself to speak with him directly because of my fear of him. I am constantly worried that he will come to my home and seek to harm me and M. I feel that I am “looking over my shoulder” all the time and this has impacted on my work when he did attend my workplace on several occasions.[12]
[12] Paragraph 63 of the mother’s affidavit.
Save for the mother’s claim that she feared that the father might come to her home and seek to harm her and M there is ample evidence to support a finding that this is not just hyperbole and that the mother has good reason to be fearful of the father and fearful that he is likely to cross boundaries, quarrel about the meaning of orders and subject her to a torrent of correspondence if the orders continue in force.
There is abundant evidence that the father becomes fixated on technical and incorrect interpretations of the orders and of legislation and legal principals.
The family report writer asked the father why he did not initially pay BB for the two visits in 2016 and reported as follows:
The father stated that he was a “stickler” for the orders and BB “refused” to comply with orders for alternate weekend time and “it snowballed from there”. [It is common ground that BB stated that they could only move the day with the mother’s consent and the mother did not consent]. The father was again asked why his time with M ceased. He said “I refused to pay for a Thursday visit. Because orders say each alternate weekend. BB wouldn’t even acknowledge the orders. They say I missed two consecutive visits but I never did in accordance with order four”. He reiterated that he had never failed to attend two consecutive weekend visits because the orders related to a weekend and not a Thursday. [13]
[13] Family Report paragraph 16.
Order 9 of the orders made by the trial judge provided for the father to send the child letters cards and gifts and in detail it is as follows:
Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:
a) By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to her birthday, Father’s Day, and Christmas Day; and
b) By the mother promptly sending to the father:
i)Written acknowledgement of receipt of the father’s written communication; and
ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.
For the purposes of implementation of Order 9 hereof:
c) The mother shall, within 7 days hereof, obtain and thereafter retain a post office box to which the father may send written communication; and
d) The mother shall, within a further 7 days, notify the father of the address of that post office box by sending written notification to his current residential address disclosed in his affidavit filed on 14 May 2014.
After this order was made the mother obtained a post office box but she is not in a strong financial position (she works 15 hours per at a Suburb J shopping centre) and she found it expensive to maintain a box for the sole purpose of receiving correspondence from the father three times a year. The mother’s partner has a PO Box and he agreed to allow the mother to use that box to receive items sent by the father pursuant to Order 9 and the mother advised the father of that PO Box Suburb J NSW.
The father took issue with this. He said as follows in his affidavit:
The Respondent mother did not provide a lawful post office box in accordance with Order 10 of 3 July 2014 Orders…[14]
[14] Paragraphs 29 and 31 of the father’s affidavit.
The father has sent items to this box but he objected to using it at Christmas 2019 and he delivered items for M to the mother’s solicitor’s officer.
Unfortunately the mother’s solicitor accepted the items and delivered them to the mother and I say unfortunately because such an action only encourages the father in his combative and pedantic behaviour.
The father is wrong; the tenor of the 2014 order was simply that the mother obtain a post office box to which the father could sent items in accordance with Order 2. She was not required to obtain it by renting it. If she obtained it by being given the use of a box by her partner that was sufficient. The father refused to concede this at trial and when pressed about it asked “Isn’t it illegal?”
The father has used alleged non-compliance with the orders as a reason to make complaints about the mother to authorities. On 31 December 2015 he wrote to police seeking assistance with a previous and current family law matter. It appeared to them that his complaint revolved around the mother’s alleged non-compliance with the orders about the father spending time with M which the father asserted was an act of family violence.
The police had difficulty understanding what he wanted and had many conversations with him over a period of a month. The father eventually began talking about an allegation that the mother had sexually abused M in 2013. He said that he wished action to be taken against his solicitor for not pursuing it and also against the mother for sexual abuse. Police noted that after further conversation he became less enthusiastic about pursuing these matters and the police created a report for record purposes only.
The father has made numerous complaints to the Department of Communities & Justice including a complaint on 2 August 2018 that the mother did not arrive for a visit and that denial of visitation was family violence and a complaint on 19 July 2018 that the mother had failed to provide a written receipt in respect of a parcel he sent and that her failure to do so was theft. He has worn out his welcome with the Department who on 31 August 2018 asked him to stop emailing them and told him that if he had significant safety concerns he should ring the Helpline or seek legal advice.
There is a considerable risk that if the order about supervised time (with some refinement to deal with the fact that BB will no longer supervise and no other supervisor can be agreed) and the order for the father to send the child letters cards and gifts remain in force the father will continue to make complaints to authorities and find reasons to argue about the interpretation of the orders and make the mother’s life a misery by deluging her with correspondence some of which may be irrational and threatening.
The mother said that there had been a constant flow of emails from the father to her solicitor which had come in each and every day and sometimes several times a day.
During the hearing the father’s attention was drawn to a trolley full of arch lever folders which had been brought into the courtroom. He was asked to concede that it represented the correspondence he had sent to the mother’s solicitor. He conceded that it very likely did.
Often the correspondence the father sends is rational but on occasions it is irrational and impossible to fathom. An example is the following from an email sent to BB:
When considering my tenacious view on fidelities continue, with the “way” or “path” presently thwarted, to my relief no longer forging ahead to influence the progress and outcome… contemptuously demonstrated by “BB””the supervisor” whose behaviour is not mustahabb can be ruled against by the Judge when not in compliance with the Family Law Act 1975 and/or the Family Law Rules 2004 as required by the Family Court of Australia set down in 3 July 2014 Orders.[15]
[15] Page 73 of the tender bundle.
The mother’s fear that the father might come to her workplace is also a valid concern.
The trial judge made an order prohibiting the father from going within 100 metres of the mother’s home or the child’s school. However the father is not one to abide by the spirit of an order as opposed to its exact technical meaning and although he has abided by the precise order made by the trial judge he has approached the mother at her workplace at Suburb J, tried to make eye contact with her and on one occasion spoken to her.
On 15 October 2015 the mother made a complaint to police after the father walked through the food court area at Suburb J where she was working. She told police that she believed that there was an order preventing him coming to her place of work. Police determined that this was not correct and no action was taken.
The father admitted that after the decision was handed down he attended a Country F gathering which the mother was attending. He said that when he attended the gathering he saw M who was quickly hidden away from him.
When the father was asked during cross-examination why he needed to attend a Country F gathering he said that he still had friends in the Country F community. He was reluctant to concede that it had been inappropriate for him to attend although conceded he would abide by a restraint on him doing so in future if it was carefully worded.
Orders would need to be made with machine precision to remove all possibility of the father encroaching into the mother’s space and inundating her with demands and correspondence and it is impossible for the court to foresee all possibilities.
The mother had a breakdown outside the courtroom on 18 February 2019 after a mention of the matter. She said that she had chest pain, was shaking and had difficulty breathing. She was put on the floor by people who were nearby and an ambulance was called. After the mother received some attention from an ambulance officer and sat in her car for 30 minutes she was able to drive back to Region G where she went to see her GP.
The mother was given a mental health plan by her GP and on 4 March 2019 began seeing a psychologist and had six sessions with her.
During the hearing the father and his partner both characterised what occurred on 18 February 2019 as a stunt. I do not accept this. There is ample basis to be satisfied that the mother was physically affected by the stresses of being in the same room as the father and being required to continue to deal with and think about the family law matter.
M is attuned to her mother’s distress about having to deal with the father and takes on responsibility for keeping the mother happy. The family report writer said as follows:
M said that the mother thought the father “gives her a little bit of hard work” “she says she’s stressed” (about the father). M said that this makes her feel “sad and angry”. She reported that when the mother is stressed about her father she “just goes on the phone to try to relax herself. Sometimes she talks to my Aunt to work it out. Sometimes I try to make her happy as well. I make her coffee every morning in the mug I gave her for mother’s day”. [16]
[16] Family Report paragraph 120
The mother is a good mother and regardless of the stress the father causes her it is likely that she will always be there for her daughter but the prospect of the mother being unable to function for short periods if placed under pressure by the father is real given her collapse at court.
The mother is the only parent available to look after the child on a day to day basis. She provides all of the financial support for the child. It is important that she not be placed under undue stress and pressure by being required to deal with the father’s behaviour.
The trial judge made an order for supervised time in 2014 because the mother and the Independent Children’s Lawyer asked him to do so. The mother has now reached the point of seeking a no time order and this is a matter in which the following passage from Sedgley and Sedgley strongly resonates:
Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.
Whilst the wife is haunted by the prospect of there being a refusal of access, she has elected to choose that option, rather than the one she chose before Smithers J. She has done so because of continued behaviour by the husband which has been reprehensible.[17]
[17] Sedgley & Sedgley (1995) FLC 92-623
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
Discussing this as a separate consideration will not assist me.
I must consider any family violence involving the child or a member of the child’s family.
The mother did not raise family violence as a relevant issue at the hearing before me. However the father did refer to the issue in his Case Outline document.
In correspondence with authorities the father has alleged that the mother is perpetrating family violence because she is denying him time with M and has relied on s. 4AB(2) (i) of the Family Law Act which provides that an example of behaviour which may constitute family violence includes:
Preventing a family member from making or keeping connections with his or her family, friends or culture.
The father’s assertion is simply not correct. S.4AB(2) says that the behaviours listed in sub-section (2) may constitute family violence and I do not accept that a parent who prevents or opposes a child spending time with another parent on rational grounds is committing an act of family violence.
Even if I am wrong, the father is not spending time with M because as a result of his own actions, not because of anything the mother has done.
The father also complained to the police on 13 November 2015 and to the Department of Communities & Justice in July 2018 that the mother was committing family violence because she was unlawfully depriving a family member or any member of the family member’s family, of his or her liberty, a matter referred to in s.4AB(2)(j).
His basis for relying on this subsection as set out in his letter to the police dated 13 November 2015 makes no sense[18] and I reject the father’s claim that the mother has committed any acts of family violence against him since the parties separated.
[18] Tender Bundle page 59
There are no family violence orders in place.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of her parents.
Discussing this as a separate consideration also will not assist me.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
This is an important consideration.
The first round of court proceedings between these parents began in 2013 and ended when judgment was handed down on 3 July 2014 after a three day hearing.
On 29 July 2014 the father lodged an appeal. It was heard on 22 July 2016 and was dismissed. Costs were awarded against the father which have only partially been paid.
On 23 July 2014, 10 October 2014 and 6 November 2014 the father filed contravention applications. On 13 November 2014 two of the applications were dismissed by consent. The third was dismissed by the trial judge and costs were awarded against the father.
On 10 February 2016 the mother filed an application for divorce. The father filed a response opposing the divorce.
The matter was heard on 22 July 2016 and the mother’s solicitor instructed counsel. The father contended that the date of the marriage on the certificate was “false” and that the divorce application should not be heard until after his appeal against the parenting decision was heard. He also submitted that the parties could not have satisfied the documentary requirements to obtain a marriage licence in Country F.
The judge hearing the matter was satisfied that none of the father’s complaints had merit and made a divorce order on 20 July 2016.[19]
[19] Mertens & Mertens [2016] FCCA 1837
The mother filed her current application on 14 August 2018. The father filed a response on 31 October 2018.
On 8 October 2018 the mother’s solicitor issued subpoenas to BB, NSW Police and the Department of Families & Children’s Services. On 19 October 2018 the father lodged a Notice of Objection in respect of each subpoena. Those Notices of Objection were dismissed on 16 November 2018.
An interim hearing was conducted on 4 March 2019 as to whether the existing orders should remain suspended.
On 29, 30 & 31 a second three day hearing was conducted
The mother has been required to attend court for numerous mentions of the matter and had to attend the hearing. She has endured considerable stress as a result and collapsed after one of the mentions.
The desirability of making the orders which are least likely to lead to further proceedings is an important consideration in this matter and given the father’s pedantry and his combative behaviour there is a risk that if orders are made which provide for a continuation of time or for the sending of letters cards and gifts or which place a continuing obligation on the mother to keep the father informed about matters concerning M it will lead to further proceedings.
I must consider any other fact or circumstance which the court thinks is relevant.
The family report writer raised the spectre that for the father this was no longer about M but was about causing the mother maximum grief and I am satisfied that there is a real likelihood that this is the case.
When the father was asked during the hearing about his proposals for the future he said that he would like to spend time with M “any way I can” but his words are one thing and his actions another.
If the father had truly wanted to continue a relationship with M he would have paid BB’s invoices in October 2016 in a timely fashion and taken his argument about the correct interpretation of the orders back to court, perhaps by filing a contravention application. Alternatively he would have accepted that he had tacitly consented to a variation of the orders by his conduct over several years and continued to spend time with M on weekdays.
The father tried to arrange mediation in 2017 but apart from that he did nothing after time ceased in September 2016 but harangue BB, the mother’s solicitor and the Department about alleged non-compliance with the orders. BB had not yet cast him off. At any time between October 2016 and June 2018 the father could have seen M four times a year but he chose not to see her at all.
The matter came back before the court in August 2018 because the mother filed an application and in his affidavit filed on 31 October 2018 the father said as follows:
I request that the court puts [Ms Mertens] on notice that if she does not Comply with an Order [Ms Mertens] will be punished or that the Court punishes [Ms Mertens] by way of a fine or imprisonment.
Or that the Court punishes [Ms Mertens] by way of granting the father Sole Parental Responsibility of M in accordance with paragraph 37 of [Ms Mertens]’s Affidavit sworn at Town K on 9 August 2018 and filed on 14 August 2018.[20]
[20] Father’s affidavit filed on 1 November 2018 paragraph 146 and 147
The father was cross-examined about this at trial and said that he stood by these paragraphs of his affidavit.
I share the concern of the family report writer that this has ceased to be about M and has become a campaign by the father to harass and control the mother and if that is the case making further orders will only allow the father to continue this campaign; he will inevitably find something to argue about no matter how carefully and precisely orders are drafted.
The primary considerations are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from being subjected to or exposed to abuse, neglect or family violence.
The second primary consideration is not relevant given the issues I have to decide but the first is.
If M does not spend time with her father she will not have a relationship with him, let alone a meaningful one.
She will also not have a meaningful relationship with him if she only sees him once each quarter. That would keep alive in M’s mind what the father looked like and sounded like but it would not result in them having a relationship which was significant, valuable and important to the child.[21]
[21] Mazorski & Albright (2008) 37 FamLR 518
It is open to me to vary the 2014 orders and make an order that if supervised time resumes it occurs fortnightly rather than quarterly but even this may not lead to a meaningful relationship being re-established.
In 2014 the trial judge was satisfied that M had a meaningful relationship with her father and felt that this should not be severed completely.
That may have been the case then, when the parties had been separated for only a year and M had been seeing her father regularly, albeit supervised, since separation. However M has seen her father only once in the last 3 ½ years. He knows little about her. Two hours supervised will provide little time for them to catch up and re-establish a bond. It is possible that M will see the two hours she spends with her father as a chore rather than an enjoyable outing. The notes about the supervised visit in July 2018 suggest reluctance and disconnection on M’s part.
If the father was sensitive and empathic he might in time catch up with what had gone on in his daughter’s life over the last 3 ½ years and form a bond with her which was significant and important to her, but the father’s affidavit does not create the smallest confidence that he would take this trouble. His affidavit was focussed on protesting the unfairness of the 2014 decision, severely criticising the mother and urging that M have psychological counselling.
There is also a very high risk that if supervised time continues that the father will continue to behave in ways which harass the mother. M is attuned to her mother’s distress about being required to deal with the father and if the mother is distressed this is likely to undermine her enjoyment of visits and her willingness to engage with the father.
There is a considerable doubt in my mind about whether even the resumption of fortnightly two hour visits would lead to a meaningful relationship between M and her father being re-established.
The use of court resources
Any orders I make about M must be orders determined by treating her best interests as the paramount consideration but they are not the only consideration and in this parenting case the interests of other members of the public who need access to justice and the use of court time and resources is a legitimate consideration.
Proceedings between these parents have consumed a large amount of court resources. Two family reports have been prepared and a child inclusive child dispute conference has been held. A three day parenting trial was held in 2014, a one day trial was held in 2016 in respect of the contested divorce and a three day parenting trial was held in 2020.
Time was taken up in 2015 dealing with contravention applications, an appeal hearing was conducted and in the current proceedings there have been a large number of mentions and an interim hearing.
This court is under pressure to deal with the matters filed in the court in a timely fashion and the appropriate use of court resources is a legitimate consideration.
In Aon Risk Services Australia Limited v Australian National University[22] the High Court was dealing with an appeal from a decision that a litigant be permitted to amend their claim which led to the adjournment of a trial. The High Court allowed the appeal and their decision included the following observation:
…the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account.
[22] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
By analogy I am satisfied that inefficiencies in the use of that resource by making orders which carry with them a considerable risk that parties will return to court yet again in the future can in an appropriate case be taken into account in determining whether to make one order rather than another, and in the case before me that risk exists if I make further orders for supervised time or if the order for the sending of letters cards and gifts or an order requiring the mother to provide information to the father remains in place.
The recommendation of the family report writer
The family report writer recommended that the child spend no time with and have no communication with the father. The rationale for this was:
i)The lack of relationship between M and the father at present and the difficulties in trying to rebuild a relationship given the limitations of supervised time.
ii)The impact on the mother of being required to deal with the father around the interpretation of orders and issues which might arise in organising ongoing supervised time.
iii)The real possibility that the father was not in fact committed to having a relationship with M but was using the existence of orders as a vehicle to harass and control the mother.
The father was highly critical of the report writer but her opinions about the father were soundly based on the information available to her and are valid based on the information available to me. The report writer’s recommendation does not determine the matter but it does deserve weight.
Conclusion
There is an insurmountable practical difficulty for the father in terms of an order being made for him to spend time with M. For the reasons set out at the beginning of the judgment I would only be prepared to make an order for supervised time and the only proposal the father made about that was that time be supervised by his partner Ms B and she is not a suitable supervisor.
The only suitable supervisor would be a professional person or organisation and the father did not suggest any professional person or organisation who might be suitable and prepared to supervise time.
That is really the end of the matter as far as whether the father’s time should resume is concerned but even if there was a professional person or organisation available I would not be prepared to make an order for the continuation of supervised time.
I have a considerable concern that this is no longer about M but is about the father keeping the pressure on the mother. If that is the case the father will find some way to argue about the interpretation of orders no matter how carefully I draft them, he will continue to find reasons to bombard the mother with correspondence about the meaning of the orders or her compliance with them and he may find some way to pick a fight with any new supervisor creating a fertile field for correspondence with the mother or complaints about her to the Police or the Department.
Even if my concern about the father’s motivation is misplaced and his behaviour in bombarding people with correspondence and making unsustainable claims about the meaning of legislation and the meaning of orders arises out of a pedantic combative personality, it is still behaviour which is likely to occur. The father is not well equipped to re-establish a bond with M after a 3 ½ year break and if M is distressed because her mother becomes distressed that is going to make his task impossible.
S.60B(1)(a) of the Family Law Act provides as follows:
(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.
However s.60B(1)(c) provides that another relevant object is:
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential.
The mother is the sole financial provider for M and the only person available to care for her on day to day basis. It is important that she is not placed under stress which might affect her capacity to provide financial and non-financial care for M.
I am not prepared to make any further order for supervised time when it ended only because of the father’s pedantic, combative behaviour; when there is considerable doubt that it will ever lead to M having a meaningful relationship with the father; when it will place unacceptable pressure on the mother; and when there is a considerable risk that it could lead to the matter returning to court because the orders break down again. That would be unfair to the mother and unfair to the other members of the public who need the assistance of the court and who as a result of this matter coming back might have to wait even longer to have their matter properly dealt with.
A complete break between the parties is needed for the sake of peace in the mother’s home and I intend to make orders as proposed by the Independent Children’s Lawyer save for this.
Order 14 of the Orders made on 3 July 2014 provides that the mother authorise the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.
In her Initiating Application filed on 14 August 2018 the mother did not seek the discharge of Order 14.
The Independent Children’s Lawyer proposed that all existing orders be discharged and in the fresh orders she proposed did not include the order about the father being able to obtain school reports and school photographs from the school.
No evidence was given at the hearing that this order had caused difficulties for the mother or for M and the issue of whether it should be discharged was not addressed in submissions.
I am concerned about leaving any orders in place which might cause disputation between the parties but I am loath to make an order which the father was not on notice about in case it attracts a complaint that the father has not been afforded procedural fairness.
This order does not require or permit any direct communication between the mother or the father. I intend to replicate it in the orders I will make.
The orders which I propose to make should not provide any excuse for the father to contact the mother. The mother can take if necessary take some self-protective steps such as changing her phone number or blocking the father’s number. If he finds any creative ways to evade the spirit of the orders then she may need to apply for an ADVO.
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 21 February 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Jurisdiction
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Procedural Fairness
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Standing
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Costs
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