Miller and Wilcox
[2008] FMCAfam 917
•16 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILLER & WILCOX | [2008] FMCAfam 917 |
| FAMILY LAW – Extensive domestic violence – total alienation between parties – consideration of father’s proposals to maintain relationship with child. |
| Family Law Act 1975, ss.60CC(3)(a), 61DA(2), 61DA(4) |
| Goode v Goode [2006] FamCA 1346 Fooks v McCarthy (1994) FLC 92-450 |
| Applicant: | MR MILLER |
| Respondent: | MS WILCOX |
| File Number: | MLC 6388 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 28 & 29 July 2008 |
| Date of Last Submission: | 15 August 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 16 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr T.J. Puckey |
| Solicitors for the Applicant: | Nancy V Battiato |
| Counsel for the Respondent: | Ms D. Brooker |
| Solicitors for the Respondent: | Peter S Dunn & Associates |
| Independent Children's Lawyer Counsel: | Ms H. Dellidis |
| Independent Children's Lawyer Solicitor: | Victoria Legal Aid |
ORDERS
The mother have sole parental responsibility for the child [S] born in 1996.
The child live with the mother.
The mother and father each keep the other advised in writing of their residential address.
The mother advise the father in writing in the event the child suffers any significant injury or illness requiring hospitalisation.
The mother advise the father in writing in the event of any change in the child’s enrolment at any school.
The mother authorise the child’s school to provide to the father at his request and expense copies of all school reports and applications for photographs.
The mother and father, their servants and agents, be and are hereby restrained by injunction from criticising, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the child, or from allowing any other person to do so.
The mother, her servants and agents, be and are hereby restrained from causing any change to the child’s birth certificate prior to the child reaching 18 years of age.
The mother do all acts and things necessary to ensure the child continues in her counselling with Ms R or her nominee, including making application for further funding for such counselling and in default of same, to personally finance such counselling, until such time as Ms R deems it no longer beneficial for the child to attend such counselling.
The Independent Children’s Lawyer forthwith provide a copy of the report of Ms Barbara Fraser dated 3 December 2007, a copy of these Orders and Judgment to Ms R and thereafter the appointment of the Independent Children’s Lawyer be discharged.
The father be at liberty to forward to the child, via the child’s counsellor, Ms R, letters, cards or gifts, and it is requested that Ms R make these available to the child if deemed appropriate by her to do so.
All extant applications otherwise be dismissed.
AND THE COURT DIRECTS THAT:
Any submissions as to costs be filed and served on or before
23 September 2008.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Miller & Wilcox is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6388 of 2007
| MR MILLER |
Applicant
And
| MS WILCOX |
Respondent
REASONS FOR JUDGMENT
The Applicant father, Mr Miller, wants to see his daughter [S], who was born in 1996 and is thus presently 11 and a half years old. He has not seen her (apart from with the family report writer) since separation in 2005.
[S] presently does not want to see her father at all and has made this abundantly clear to the report writer, Ms Fraser. The evidence shows that any endeavour to force [S] to see her father will be intensely distressing to her.
The major issue in this proceeding is whether the Court should in whatever way keep alive, as it were, a process whereby the father might be reintroduced into [S]'s life.
For the reasons that follow I have determined that it is not appropriate to submit [S] to what I find would be the trauma of endeavouring to maintain her relationship with her father at this time. The father's application accordingly to spend time with her will be dismissed save to the limited extent proposed by the Independent Children’s Lawyer.
I have also determined that it is not appropriate to accede to the mother's claim that [S]'s surname be changed to Wilcox, this being the name of Ms Wilcox's present husband.
Background
The father was born in 1969 and the mother was born in 1959. Their relationship appears to have commenced in about 1996 and continued, albeit with a number of separations, until final separation in September 2005.
During most of the time that the parties cohabited, Ms Wilcox's daughter, [L], lived with them. [L] was 13 years old when Mr Miller came into Ms Wilcox's life.
The mother and [L] have both on affidavit and in their oral evidence given vivid accounts of alleged family violence including serious physical violence inflicted predominantly on [L] but also to a lesser extent on the mother. The father admits that the relationship was one characterised by substantial yelling and screaming between the parties but denies there was any physical violence.
While I made it clear to the parties during the running of the case that I did not think it necessary or indeed appropriate for me to seek to start making findings about the serious assaults alleged one of which, on any view, involved the father stabbing Ms Wilcox's now husband a number of times, it seems quite clear that there has been serious family violence within the meaning of the Family Law Act 1975 (“the Act”).
This is patent from the way in which both the father and the mother gave their evidence. They are both people of poor self-control and immature personality. Having seen them give their evidence, and having read the psychiatric report by Dr K into the father, and the family report by Ms Fraser, I have no hesitation whatever in finding that their relationship would have been characterised by the most appalling screaming matches.
I note that there have been a substantial number of intervention orders made against the father, albeit that he says that these were made without opposition and that the only intervention order application he opposed was dismissed. I also note the father's criminal record, which includes assault. More particularly, I note the very vivid emotions that the father excites in both the mother and in her daughter [L].
As I have said, it is not necessary nor is it appropriate for me in these proceedings to conduct what is in effect something akin to a criminal trial, albeit run on the basis of the civil burden of proof, as to whether or not the father has indeed seriously assaulted physically both the mother and [L]. What is clear is that whatever the father did do has caused the mother and [L] to have the most extreme views about him.
I note that the father admits pouring a bottle of milk over [L]. It is also clear that the father pursued the mother and [S] during the incident which culminated in the father throwing a brick through the windows of the mother’s car. [S] witnessed the entirety of the incident.
It is unfortunately common that litigants in family law matters have strong emotions about one another. I have not yet encountered a case in which an estranged wife and her daughter have had such extraordinarily strong negative emotions.
The father says that [S] has been brainwashed by the mother and [L] into the point of view that she now has, and asserted in his evidence before me that to the extent that [S] is scared of him, her spending time with him was the best way of resolving this difficulty.
I note however that in his interview with Dr K he conceded that (see page 9, Dr K's report):
“He acknowledges that in his last two relationships there has been arguing, fighting, and sometimes in the presence of the child - at least in this last one.”
He went on to say (at paragraph 10 of Dr K's report):
“He also considers that there has been adequate opportunity for [S] to have been rendered more frightened of him than she need be, and understands that there may not be a way to satisfactorily deal with that.”
In his interview with Ms Fraser (see page 4 of Ms Fraser's report):
“Mr Miller himself described being "enraged" and "worked up" about Ms Wilcox's claims in response to his application, and reported that he was taking Valium to try to deal with his feelings. He denied any benefit would come from the parenting course that he has apparently recently commenced, that, "I know how to act around my daughter, I object strongly to all this."
In the light of the materials filed in this proceeding as a whole, and in the light of the oral evidence given by the parties, there is no doubt that there must have been some physical violence between the parties and that some of it at least must have taken place in the presence of [S].
Even if I am wrong in this regard, there is no doubt that the father on occasions screamed and yelled at the mother and at [L] in the presence of [S]. The fear that [S] has expressed of the father is by no means wholly the cause of the conduct of the mother and [L].
Nonetheless I make it clear if I have not already done so that the mother and [L], far from fomenting any relationship between [S] and her father, would go to almost any lengths to calumny him and to try to ensure that [S]'s anxieties about her father are maintained.
It is particularly significant that [S] is, as I find, encouraged to call her stepfather "[B]dad" (his name is [B]), and that the mother is seeking to change [S]'s surname to Wilcox. This application in itself speaks volumes.
Nonetheless, it is clear from the evidence of Ms Fraser in her report, and the evidence of Ms R, that [S] is presently very scared of her father and does not want to have anything to do with him.
The mother and [L] both sought to give evidence of [S]'s fears about her father. While I accept that that evidence is in part correct, I have approached their evidence with more caution, as their evidence was in both instances given to obvious hyperbole and clearly - albeit very understandably - heavily influenced by their hatred of the father.
Although this application raises issues that do not sit altogether comfortably with the pathway described in Goode v Goode [2006] FamCA 1346, I will endeavour to follow it as best I am able.
Parental responsibility
In this case, it is not appropriate to apply the presumption in favor of equal shared parental responsibility. It is clear beyond any possible doubt that the father has engaged in family violence (section 61DA(2)). Further, I am satisfied that it is not appropriate for the parents to have equal shared parental responsibility for the child (section 61DA(4)). The lack of insight shown by the father to Ms Fraser in relation to the parenting course, together with [S]'s present anxiety at having anything to do with her father, makes it inappropriate that there be joint parental responsibility.
In the circumstances, the Court is obliged to consider what arrangements will best promote the child's best interests, including consideration of equal or substantial and significant time with each of the parents.
In the particular circumstances of this case the father is not, despite the terms of his originating application, seeking presently equal shared time or substantial and significant time. What the father is seeking is in effect the imposition, albeit slowly, of measures designed to bring him back into [S]'s life. That issue must be considered in the light of those subsections of s.60CC(3)(a) that are relevant.
I accept the force of the submissions made by counsel for the father that wholly to exclude someone from the life of a child is a last resort and a step only to be taken in the most extreme cases. Here, however, we are dealing with an extreme case. I accept the evidence of the mother that [S] has had heightened anxiety at the prospect of seeing her father at the family report interview. This is consistent with Ms Fraser's observation.
Whatever the extent may be, I accept the evidence of the mother that [S]'s bedwetting has increased at the prospect of seeing her father.
[S] has expressed clear views both to Ms Fraser and Ms R about her position, and at the age of 11 these views must be given force. Regrettably, in the particular circumstances of this case the Court is left with a choice of sundering the relationship completely, at least for present purposes, or of imposing what is clearly going to be a trauma upon the child. It cannot on any possible view be appropriate and in the best interests of a child to force the child to undergo trauma.
It is more probable than otherwise, as a matter of ordinary common sense, that any endeavour now to force the child to interrelate with the father will simply cause her to become yet more alienated together with being distressed.
Section 60CC(3)(b)
[S] has a very close and loving relationship with her mother, [L] and her stepfather whom she calls [Bdad]. Her relationship with her father is as I find presently effectively non-existent and any endeavours to make [S] see her father will, as I have already said, cause her distress. Very understandably, [S] regards her father with fear and that fear owes much to Mr Miller’s own conduct.
Section 60CC(3)(c)
It is quite clear that the mother and [L] will do everything they possibly can to prevent a relationship between [S] and her father. The father, as is clear from Ms Fraser’s report, regards the mother as being the source of his difficulties and made derisive comments about her to Ms Fraser. I note the psychiatric assessment of Mr Miller suggests that he is a person prone to blaming others for problems that he himself may have caused.
Section 60CC(3)(d)
It is clear from Ms Fraser’s report that any endeavour to make [S] see her father is likely to be traumatic for her.
Section 60CC(3)(e)
There are practical difficulties that would prevent the father from spending time with [S] at a Contact Centre albeit that the father has given no evidence of any endeavours to enrol in one.
Section 60CC(3)(f)
The evidence appears to suggest the mother is presently performing well as a parent. She has ensured that [S] has visited Ms R to achieve assistance. She has indicated that she will continue this assistance at her own expense if necessary.
I note the findings by Ms Fraser that the father had limited insight during his time with [S] and that he “did not however convey emotional sympathy for [S]’s level of distress and was not able to effectively sooth [S]”.
Section 60CC(3)(g)
I do not regard the materials as suggesting anything of compelling significance under this subheading.
Section 60CC(3)(h)
In this regard, I accept the submissions of the Independent Children’s Lawyer. The failure of the father properly to co-operate with the request for urine samples, his failure to attend a Post Separation Parenting Course, his failure to undertake an Anger Management Course forthwith following the Orders made by consent on
7 December 2008 that he do so and the delay in seeking psychiatric assistance all count strongly against him.
Section 60CC(3)(l)
I accept the Independent Children’s Lawyer’s submission that this dispute must be determined as soon as practicable. Ms R’s evidence as to the uncertainty that litigation provokes in [S] is compelling. The father’s proposal for time at a Contact Centre does indeed, as the Independent Children’s Lawyer submits, give rise to a greater risk that there will be further proceedings.
The matter has been very well summarised at page 12 of the submissions of the Independent Children’s Lawyer in the following passage with which I entirely agree and which I adopt as part of my own reasoning:
“The father’s proposal to the Court is that the child and her family ought to give him a further chance to meet the preconditions suggested in the Family Report before trialling supervised contact at a Contact Centre. The proposal ignores what the child’s counsellor, Ms R and Ms Fraser described as the adverse impact on the child and the pressure such a process would cause upon, and within, the child’s family. The proposal also contains a presumption that the father will do as he says. His history of compliance with the orders he has previously consented to, suggests he has moved with alarming laxity towards gaining the confidence of the Court, the experts in these proceedings, and in particular, the mother and the extended family of the child.
Overall the evidence indicates the child is presently developing well. It also suggests the mother presently has a high level of competence in her parenting, and to whom the child has a strong attachment. The Court ought not risk this attachment, the mother’s parenting capacity, or the child’s positive development, for an experiment in reconciliation involving a protracted process which Ms Fraser said in her evidence involves a risk of trauma for the child.”
As I have said, that passage in my view sums up very effectively the conclusions that I have reached. For those reasons there will be orders as suggested by the Independent Children’s Lawyer. I note that those orders do keep open as far as it is appropriate to do so, the possibility for the father to be informed about [S] and to communicate with her should Ms R deem it to be beneficial.
The change of name
The mother's application to change the child's name is part of her spiteful and vindictive approach to the father. It shows little insight into her responsibilities as a parent. It has nothing to do with any objective appreciation of [S]’s best interests. As Warnick J held in Fooks v McCarthy (1994) FLC 92-450:
“There is only one principle that is that the welfare of the child is the paramount consideration. It stands above the issues of the parents.”
I find that the child is being actively encouraged to consider the stepfather as her father, and to adopt him in that role, by both her mother and by [L]. This is very unfortunate, but in the circumstances it is beyond the Court's power to prevent. It appears that the child is already being informally enrolled in school and otherwise identified by the mother under the surname Wilcox. It is in my view completely inappropriate to change her surname at this time.
There are real issues about the difficulties that children face if they are completely sundered from a parent for a large part of their childhood. Very regrettably, it is highly probable that the orders that I am going to make will have this effect. The effect should not be compounded, however, by a change of name. If [S] wishes to change her name she will be able to do so in some six and a half years' time.
Conclusion
This is a very distressing and sad case. Both the parents are, very unfortunately, extremely limited in insight and self-control. The father has a number of psycho-social problems, as indicated by the report of Dr K. He is estranged as things presently stand from all four of his children. It is not possible not to feel sympathy for him.
Nonetheless he fails to understand, at least in relation to [S], that the situation that presently obtains is one to which he has clearly contributed in a very significant way.
In the ultimate, the Court is however concerned less with the rights and wrongs of the conduct of the parents but it is required by law to focus first and foremost upon the best interests of [S]. Whether, as I find, [S]'s aversion to her father springs substantially from the father's own conduct, fomented eagerly by the mother and [L], or whether I am wrong and this conduct has indeed been the subject solely of brainwashing - an assertion in my view which only goes to reinforce my impression of the father's lack of insight - ultimately, regrettably, is of little moment.
The evidence points overwhelmingly to the proposition that [S] will be distressed, frightened and in every way seriously disadvantaged if she has any contact with her father as things presently stand. Once that finding is made, it follows inexorably that contact should be sundered.
There will be orders in the form sought by the Independent Children’s Lawyer.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 16 September 2008
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