Miller and Brass

[2008] FamCA 944

FAMILY COURT OF AUSTRALIA

MILLER & BRASS [2008] FamCA 944

FAMILY LAW – CHILDREN – With whom a child lives – Sole parental responsibility – With whom a child spends time

APPLICANT: Mr Miller

RESPONDENT: Ms Brass

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADF 3909 of 2002

DATE DELIVERED: 30 September 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Bell J

HEARING DATE: 22, 23, 24, 25, 26 September 2008

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Klotz of Counsel

SOLICITOR FOR THE RESPONDENT: Mobilelegal, Solicitors

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms L. Turonek of Counsel

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Hume Taylor & Co

Orders

1. The child … born on … January 2001 do live with the mother who shall have the sole responsibility for her day to day and long term care, welfare and development.

2. Both parties do all things necessary to facilitate and participate in ongoing counselling for the child, including any such requested attendance with the therapist, as recommended by the Independent Children’s Lawyer.

3. A copy of the reasons for judgment be made available to Ms M, psychologist and Ms C, psychologist who shall provide their recommendations to the Independent Children’s Lawyer as to whether future counselling for the child should continue at the Child Protection Unit or with another therapist.

4. Each parent and the Independent Children’s Lawyer are at liberty to communicate with the appointed therapist regarding the child’s progress.

5. The father be entitled to communicate with the child by letters or presents, or anything of that nature with such to be communicated to the child through the Independent Children’s Lawyer.

6. A report be obtained from the appointed therapist in relation to the care, welfare and development of the child not earlier than six months of the date of these orders, that provides recommendations with respect to future parental arrangements concerning what time and supervision, if any, should occur between the child and her father.

7. Each party be restrained:

   a.   From denigrating the other, to or within the hearing of the child and from permitting any other person so to do;

   b.   From discussing these proceedings and the allegations made herein with the child, or within her hearing;

   c.   From taking the child to any psychologist, therapist, counsellor or like professional in relation to the allegations of abuse raised in these proceedings, unless directed by this Court or the Department for Families and Communities.

8. The mother shall keep the father informed as to any medical treatment, illness or injury suffered by the child and shall forthwith advise the other of any medical emergency or hospitalisation.

9. The father be entitled to receive from the child’s school by arrangement with the school, copies of all notices, reports and other information ordinarily forwarded to parents.

10. The parties keep each other advised of their postal and residential addresses and telephone numbers for the purpose of facilitating any telephone communications.

11. The parties are restrained and injunctions are granted restraining each of them from removing the child from the State of South Australia without providing to the other party not less than 21 days notice in writing and contact telephone numbers during such period.

12. That a copy of the reasons for judgment herein may be made available to:

    a.   Any medical practitioner, therapist, counsellor or like professional working with the child.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the father’s time with the child be suspended.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 3909 of 2002

MR MILLER

Applicant

And

MS BRASS

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Miller, hereinafter referred to as "the applicant", for orders in relation to a child of his relationship with the respondent Ms Brass.  The child is the parties’ daughter.  She was born in January 2001.  The father in this application seeks sole responsibility for the child's wellbeing, and emphasises such application by reference to a previous trial which took place before the former Murray J and evidence which has arisen subsequent to that hearing.

2. May I say that it has somewhat concerned me about this case, in that there was a full hearing which took place over some 10 or 12 days in late 2005.  Murray J made an order and thereafter great difficulties have arisen in relation to such order and in relation to the father spending time with the child in accordance with the order. 

3. The question of Rice v Asplund was raised, rather peripherally, and everybody seemed to try and sweep it under the table.  It has concerned me because of the difficulty of evidence.  If in fact Rice v Asplund applies, the whole of the evidence in relation to the relationship of the parties and the child comes into force and effect.  If it does not somehow or other, it is an application for variation of an order which was made, as I said, towards the end of 2005, and the evidence would be therefore restricted to something which has arisen since then. 

4. However, doing the best I can for the child and for the parties in this case, I have allowed all evidence to be put before me and notwithstanding it may be that if this goes to another place, the Court of Appeal may be concerned in relation to Rice v Asplund.  I am more than satisfied if, as a result of subsequent disclosures made by the child after the trial in 2005, that the hurdle of Rice v Asplund is clearly overcome.

5. This matter was heard before me last week as a result of my being here on exchange.  It is extremely difficult for the parties and for me to take this matter back to Brisbane and sit on it for weeks.  I therefore have decided to give, in effect, not an extempore judgment but an oral judgment, and I apologise if it does not appear to be very well groomed, but I am doing the best I can at particularly short notice.  I am going to take some short steps which I sincerely hope do not upset the parties or their legal advisers.

6. So far as the history of this matter, I refer to the judgment of the Honourable Murray J, which was delivered on 29 September 2005.  These are purely matters which are not in dispute between the parties.  I read and incorporate in these, in relation to the facts, 3(i), 3(ii) - more of that anon - 3(iii), 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16. 

7. Those matters that I have incorporated in these my reasons for judgment set out in a very clear and concise manner - as was Murray J's wont - the facts up until the hearing of the matter before her.  She found certain findings against the mother in relation to allegations of sexual misconduct on the part of the father towards the child and, notwithstanding that, as she has found, she allowed the child to remain with the mother and made certain, as it was then, contact orders.  It is now orders in which the party spends time with the child.  At paragraph 78 of her reasons she says:

   For all of the above reasons, I determine that residence shall remain with the mother and the father shall have contact.  To protect the father against further allegations by the mother of sexual abuse, I will order that until the child attains five years of age the contact be supervised by either paternal grandparent.

8. As I have mentioned briefly before, since then this has been an absolute disaster area.  It has been war, and Ms Turonek, counsel for the independent children's representative, has created a chronology of contact and related orders, copies of which have been given to the parties, and, whilst I look upon that as an aide‑memoire and I refer to it in my reasons for judgment to show the great difficulty which both parties have encountered since the order of Murray J, nothing has been stable.

9. It is alleged on the part of the father that the mother is going out of her way to alienate the affections of the child from him and that this is intentional on her part; it is malicious and devious.  He is particularly bitter about the lack of consistent contact - if I might use that word, and I use it advisedly - that he has had with the child, and considers that this has interfered with the relationship being built up between himself and his child; the only child of the applicant father.

10. The CPS became involved in this matter as a result, as I understand, of an approach from the child’s school.  They did complain or remarked to CPS - and this was on 8 September 2006 - that they were concerned about the child’s emotional wellbeing.  I am referring to the report of Ms M which is annexed to the affidavit of Mr B and is BMB6.  That affidavit was filed 18 March 2008.  It has also been admitted as an exhibit but I do not know the number.  It says, "At that time" - ie, 8 September ‑

    … the CPS was advised that [the child] had previously raised concerns about physical and sexual abuse by her father while at school, and that the school had made a notification of this.  It was reported that, whilst the school had continued to notify their concerns about [the child’s] behaviour, they had been discouraged by the Child Abuse Report Line to continue to make notifications.  It was the understanding of the school that Families SA did not intend to investigate further allegations of abuse as they held the view that [the child’s] disclosures may have been influenced by the mother.

11. This is in fact the crux of the father’s case.  Murray J was not impressed with the mother's allegations of abuse.  In fact, she roundly condemned her for continuing persevering with the allegations of abuse.  It is of course a matter of grave concern to this Court, as it always has been, that children must be protected, that the Court recognises that children have all the rights and the parents have no rights in relation to them but duties, and that one of the most important things for any young child is to be allowed to grow up without any form of abuse, whether it be physical, sexual, psychological, emotional or otherwise.

12. Regrettably, in this case I am satisfied that the child is showing great emotional distress.  This has been getting worse, and I am referring to, and in effect incorporating, both the reports of Ms M, who is the one who did the original report of the CPS.  I indicate that it was initially therapeutic. The child commenced seeing the CPS in November 2006, as I have said before.  It was therapeutic intervention that came into existence on 3 September 2007 and, as particularised in Ms M’s report, which is annexed to the affidavit of Mr B filed on 18 September 2008, there have been at least 25 individual sessions at the CPS, with the mother having been involved in discussions with the child and the CPS clinician towards the conclusion of some of these reasons.

13. The mother was individually interviewed on 10 occasions at the CPS, in addition to engaging in 28 telephone discussions, at which her observations and concerns about the child were discussed.  It points out that the child also had access to the paediatric medical service, seen by a Dr L, senior consultant in paediatrics and child health, on two occasions, and the CPS, that being Ms M who was the clinician, also had contact with the child’s school on four occasions in order to better understand her presentation, as it says in her report.

14. I am particularly impressed with the reports of Ms M, and I will be touching upon Ms C at a later stage.  She has done an enormous amount of work on this case, and has showed clear and strong professional dedication to the welfare of the child.  She is somewhat criticised by the father, who indicates that in his opinion, and in his submission, she is very much in favour of the mother; that she tends to emphasise the mother's good points and emphasise what she might think are his bad points.  Notwithstanding that may be his view, it is not mine.  I found her to be totally disinterested in relation to this case - "disinterest" is the correct word, not "uninterested" - and that she has put forward very strongly her views.

15. Ms C, who was called and has given evidence by way of two reports, being BMB1 and BMB2, and also has given evidence and was cross‑examined, came to a similar opinion to Ms M after considering Ms M’s reports.  As was said by the father, generally he must say that there is only one expert witness and that is Ms M.  She has done all the groundwork and Ms C has, in effect, considered her reports and come to her own conclusion.  What then is the conclusion?

16. The conclusion is, as the father who is an extremely intelligent man is aware, that the child should not have any further contact with him for a period, to enable her to settle down.  I can say no more than this:  that it is quite clear, on the evidence before me, that for some reason she is exceedingly afeared of her father, notwithstanding as he pointed out quite correctly and I have seen the reports of Anglicare where contact has taken place - "The contact appears to be happy and relaxed".  Notwithstanding that, Ms M and Ms C are of the view that the child is exceedingly afraid of the father and is getting worse.  That concerns me.  I am sure it concerns the father as well, although he does not accept the fact that she is afeared of him and, once again, emphasises what appears to be a happy and relaxed time he has with the child during the limited periods of contact he has had with her, particularly this year and at Anglicare.

17. I am very sympathetic towards the father.  It is regrettable that in this case we cannot go past the fact, notwithstanding his feelings, that the child is afraid.  Is it necessary for me to determine why she is afraid?  The father submits that I should; that he does not wish to have allegations of sexual abuse hanging over his head when, as far as he is concerned, he is innocent of any charge and would not dream of interfering with his child.  I agree with him.  I do not think that there has been any sexual abuse on the part of the father towards his child.

18. However, if I was pushed - and I would prefer not to make any findings, even though he has asked for them - I have some doubts about his general attitude.  I think it is unknowing to himself that he has an authoritarian‑type attitude.  Even in court I have noticed this.  He appears to have a bad temper, and I would think that he was a man who would lose his temper particularly easily, and it may be that he is gruff, overbearing towards the child.  I do not know.  As I have said, I am finding it very difficult to find this, and I would prefer, in all the circumstances, to not find whether his conduct is inappropriate - that it is not sexual but inappropriate; overbearing, domineering, controlling.  I am not going to find that.

19. What I am able to find - unfortunately, I am able to find; I make it quite clear - she is afraid of her father. Why?  Ms C says at page 5 of the transcript at line 25:

    I'm saying that I think it would be the most appropriate course of action at the moment for [the child] to stop having contact with her father because she's formed a perception - whether that's based on real experience or not, and I underline real experience or not - that her father is someone to be feared.

20. She makes these complaints about the father choking her, of the father intending to kill the mother, of the father going to take her away from the mother.  She's exhibited extreme forms of distress.  She has the eye tic, which was seen by Ms M as well as Ms C.  Ms C, I think, also saw the hands shaking.  She did not hear the glottal clicking, which Ms M did, and the mother did.  These are signs of a child in distress.  She is only young.  It is absolutely important that we protect her from what she feels is threatening to her; notwithstanding it might be totally irrational as I have said during the trial.  She has developed this view.

21. What if the mother had in fact gone out of her way to alienate the child to bring about the parental alienation syndrome, wherein a child in effect, by many means, is taught to loathe, despise and fear the opposite partner?  I put that to Ms C.  Ms C was of the view that this had not taken place.  At page 4 of the transcript, line 31, where I say:

    Well, we're not getting into the parental alienation of Dr [G], but it's getting close to it, isn't it?---There are some markers about [the child’s] presentation that don't necessarily suggest that there's been, you know, a deliberate course.

22. She goes on at page 5, line 7:  "I think these two things" - which she referred to - "are inconsistent with being brainwashed."  This was the use of language.  She also considers that the greater risk to the child - and this is page 5, at the bottom thereof - is to continue contact.  The father must recognise that I have agonised over this case.  I feel sympathetic towards him.  He has done everything he can, as he sees it, to be a good father.  He maintains the child well; he endeavours to look after the child; they have fun when they are together.  This question of having fun together has also been considered by the experts, and they are of the view that this is an avoidance‑type behaviour on the part of the child, in that she pretends to be happy - fake happy, I think was the word that the child uses - when she is with her father.

23. I have taken into consideration all of these matters.  I do not believe it is an advantage to any of the parties that I should go into this in depth and, regrettably, I have not had time to do so.  But it is incumbent upon me, as has been set out by the politicians, that I consider the amendments to the Act, in particularly section 60CC.  Insofar as the presumption that there be joint parental responsibility and, as far as possible, equal time, shared time, I make it quite clear that, as a result of what has fallen from me in relation to the child’s emotional wellbeing, the presumption is clearly disestablished.  The best interests of the child require me in these circumstances to unfortunately - and I say unfortunately - deny the father contact.  I will not be making any order for his spending time with the child.

24. Therefore, insofar as section 60CC(2)(a) is concerned, the benefit of the child having a meaningful relationship, at this stage she will not have a meaningful relationship with the father, but - and this is the thing I am most hopeful about - if we give her a period of rest, if we give her a period of becoming safe in her own mind, if we give her assistance by way of counselling, she can be recovered for the father, and that is the only hope that I can hand out to him; that she will be recovered.  I can really see no reason why she should not be.

25. As I have said, I find that there is no sexual abuse on the part of the father.  I am not prepared at this stage to find that there has been no misappropriate conduct.  The child has to be protected from physical or psychological harm and, even as I have said, it is probably irrational on her part, there is that harm there if she continues having time with her father, and I cannot allow it.  I do not believe that it is necessary for me to go through each of the factors as set out in section 60CC, other than to emphasise the matters which have concerned me in this case, and they are already particularised by referring to the reports of Ms M and Ms C, in particular, and in fact exclusively. 

26. Regrettably, I will order in accordance with the independent children's lawyer's draft.  I want the father to be able to be in contact - and I use the word "contact" in its proper form - with the child through the independent children's lawyer by way of letters, presents and anything of that nature.  I order accordingly.

I certify that the preceding  twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  6 November 2008