Morris and Cain

[2007] FamCA 1571

FAMILY COURT OF AUSTRALIA

MORRIS & CAIN [2007] FamCA 1571

FAMILY LAW – ADOPTION – Proceedings brought by the wife’s present husband for leave to adopt child born of the union of the wife and her first husband – Child’s express wish not to have contact with biological father – Balancing competing considerations and order made granting leave to proceed

Family Law Act 1975 (Cth)

APPLICANT: Mrs Morris

RESPONDENT: Mr Cain

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11508 of 2007

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Mildura

PLACE HEARD: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Toose

SOLICITOR FOR THE APPLICANT: Cynthia A Toose & Associates

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Jonathon Kemp & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bender

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That leave be granted to Mr Morris to commence proceedings for the adoption of N born … May 1995.

2. That all previous parenting orders be discharged.

3. That the Independent Children’s Lawyer be discharged as and from this day.

4. That all extant applications be otherwise dismissed AND THAT the proceedings be removed from the Active Pending Cases List.

5. That the ex tempore Judgment delivered this day be transcribed, placed on the Court file and made available to the parties.

6. That a transcript of the Submissions of the parties this day be made and placed on the Court file.

(7) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

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

FAMILY COURT OF AUSTRALIA AT MILDURA

FILE NUMBER: MLC 11508 of 2007

MRS MORRIS

Applicant

And

MR CAIN  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The proceedings before me were originally commenced by Mrs Morris, the wife, pursuant to section 60G of the Family Law Act 1975 (as amended) (“the Act”), that leave be granted to Mr Morris to commence proceedings for the adoption of the child N, who was born in May 1995.  That Form 2 Application in a Case was filed on 26 September 2007 and is supported with an affidavit filed by the wife on 26 September 2007 and also by Mr Morris on the same date.

2. Subsequently, I have this day granted leave for Mr Morris to commence the proceedings as a “prescribed adopting parent” (see section 4 for the definition), to which the solicitors for the husband have placed no objection.  Section 4 of the Act provides:

   "prescribed adopting parent, in relation to a child means:

   (a)a parent of the child; or

   (b)the spouse of, or a person in a de facto relationship with, a parent of the child; or

   (c)a parent of the child and either his or her spouse or a person in a de facto relationship with the parent.”

3. Section 60G of the Act provides the procedure whereby the court may grant leave for adoption proceedings by a prescribed adopting parent and is as follows:

   “(1)Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

   (2)In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child's best interests, having regard to the effect of paragraph 60F(4)(a) and of sections 61E and 65J.”

4. There is a significant background to this matter, which may be best described as follows. The husband commenced proceedings out of the Federal Magistrates Court by way of a Form 1 Application filed on 15 July 2006 to discharge paragraph 2 of orders made by consent on 10 February 1999 and that he enjoy specified contact with N.  Further detailed facilitating orders were also sought. 

5. The wife filed a Form 1A Response on 25 September 2006 for orders, inter alia, that all previous parenting orders be discharged.  She sought further orders for the appointment of an Independent Children's Lawyer and that she be permitted to change N's surname to that of Morris.  As to the issue of the time the husband was to spend with N, she sought an order that it be “as agreed between the parties” and in default, as may be recommended by Mr B, who was N's treating psychologist.

6. The husband was born in November 1965 and the wife was born in January 1966.  They married in February 1993 and, following what I assume were quite serious elements of disharmony between them, separated on 25 September 1997.  N was the only child born of the parties' union. 

7. The wife commenced cohabitation with Mr Morris in the year 2000 and they married in October 2001.  They have two children of their union, namely J, born in December 2002; and C, who was born in July 2005.  In an affidavit filed by the husband on 15 July 2003 he set out the orders that were made by the court on 9 December 1997 which provided for N to live with the wife and for him to have quite detailed contact with his son best suited to accommodate the child's difficult physical indisposition at the time.  The husband did have contact with N at that time. 

8. Proceedings were renewed by the husband in July 2006 in the course of which he deposed that he had not seen N since orders were made by the court on 19 August 2003.  It was a detailed affidavit, evidencing the position of the husband as he understood it to be.  In his affidavit he sought the preparation of a family report to independently assess the situation and of N’s ability to develop a meaningful relationship with him. 

9. As a result, a very detailed and revealing report and assessment was prepared by Mr P dated 22 January 2007 which has been the foundation stone of the application by Mr Morris for leave to commence proceedings for adoption.  The position now taken by the husband is that he does not oppose the application.  I found that report to be both insightful and complex in its content and assessment, in which circumstances, given the importance of the application, it will be helpful to refer in some detail to what Mr P had to say.  By so doing, it will provide to the reader a narrative survey of the basis advanced on behalf of the parties for the orders sought.

10. Mr P commenced by observing that the wife had formed the view that N's resistance to seeing his father arose from the way he was treated by him.  She maintained that she has tried to support contact and had encouraged N to spend time with his father, but that he had become increasingly resistant to do so.  On the other hand, Mr P observed that the husband claimed that N had been “actively discouraged” from seeing him, that his relationship with his son had not been promoted by her and that the wife had sought to protect her new family unit at the cost of N's relationship with his father.

11. Contrary to the suggestions made by both the wife and N for that matter, according to the husband, N related extremely warmly and showed few signs or symptoms of anxiety.  Mr P reported that N himself had become increasingly reluctant to see his father and, because of concerns regarding his “soiling and incontinence”, had sought extensive medical and psychological treatment.   He said that it was upon the recommendation of Mr B, psychologist that the contact was voluntarily suspended by the husband, notwithstanding that his expectation was that such a course would be a short‑term intervention.

12. It was Mr P's view that the positions adopted by the husband and the wife had done little to effect any kind of meaningful change, and to a very large extent had only served to consolidate the current problems.  He emphasised the importance of the physical problems with which N presented and the psychological interplay with them.  He said the soiling and wetting incontinence was longstanding and apparently involved a period of constipation and faecal overflow over which N had little control.  It was obviously a very difficult circumstance for the boy.  Mr P said there could be many reasons for the establishment of this condition and that very often an interplay of diet, physical vulnerability and psychological factors were involved. 

13. Mr P reported that both the husband and the wife described their marriage as having become “extremely dysfunctional” towards its conclusion and that during the last 12 months their communication and any level of intimacy was virtually non‑existent.  Whilst the reasons each gave for this differed, he said that they did agree that the relationship was “effectively non‑functional, extremely strained and very distant”.  It was that family environment or context that prevailed at the point of separation. 

14. Mr P noted that it was not difficult to surmise that not only was the parental relationship strained and communication between them difficult but the husband and wife embarked upon a contact arrangement against that background at a time that N was at a particularly vulnerable stage for "the mismanagement of a post‑separation visitation regime".  He observed that it was quite common for children of N's age to return home from visitation more "regressed, anxious, aggressive, unsettled around basic routine, clingy and increasingly demanding", and resistant at the point of changeover.

15. Mr P then went on to hypothesise the effect upon N of his parents' disharmony as a basis for understanding his current resistance to spending time with his father.  He said it was his interview with N, however, which was both revealing and valuable to him.  It was Mr P's view that N had enormous difficulty integrating his family and, effectively, "split off father and his father's side of the family".  The child was unable to conceptualise having an “integrated family unit” and psychologically‑managed his situation by diminishing the significance of his father in favour of greater importance placed upon his current family unit, his relationship with his mother and his life generally in north west Victoria. 

16. Significantly, Mr P observed that N justified the “complete exclusion” of his father from his life on the basis of "very trivial experiences" and gave examples to support that observation.  Mr P said that from N's perspective the prospect of seeing his biological father confronted him with "the destabilisation of family life".  He was only able to tolerate very little change and was unable to find the "psychological space to include his father in his life". 

17. Mr P went on to report that N was staunchly aligned to his mother and perceived any attempt by his father at having contact as a "potential disruption to the family unit".  This was viewed by the husband as a sign of manipulation and alienation by the wife.  Similarly, N's wish to be known by the surname “[Morris]” reflected his unwavering desire to be part of a normal integrated family.  Mr P reported that N's presentation was most conspicuous because of a lack of any ambivalence.  Not only, he reported, did N make clear that there was nothing that his father could do to make the situation better but that he had "chosen the family I want to be with". 

18. Mr P reported that N could not conceptualise having two fathers, having two families, having two homes or having his parents equally involved in his life.  Mr P reported that N told him:

    “… having two families is too confusing and too upsetting … if I have two families I won't have a proper life … I will spend all my time going from one family to the next ... … … and it's better in [north west Victoria], and I don't want to go to Melbourne it's too different, it's too far and everything I know is in [north west Victoria].”

19. Mr P recorded that N went on to explain that he became very stressed and worried, overwhelmed with the anxiety of knowing how to integrate two parts of the family and "the greater comfort and reassurance" he felt being a part of just one family.  He went on to say that N referred to his biological father by the name "[his first name]" as a way of "distancing him in an emotional sense". 

20. Mr P said that for N there was much greater simplicity to Mr Morris being his father and him being part of the “[Morris] family”.  Even having a last name accentuated the difference, exacerbated his confusion and intensified the feelings that he had of "being not normal".  N said to Mr P:

    “I just want to be normal.  I don't like the idea of having two families, it's too confusing.  Who do you call dad?  I just want to fit in and I just want to be like a normal person." 

    These were sentiments conveyed by N to his father during their conjoined meetings.

21. Mr P expressed the caveat that extreme caution be applied when considering N's stated reasons for not wanting to see his father.  He said that they reflected the "most accessible justification, albeit the most superficial explanation for [N] and his wishes".  Mr P was of the view that a much more complex psychological understanding entailed, firstly, an historical perspective; secondly, an appreciation of the circumstances and the conflict at the point of separation; thirdly, the introduction of a visitation arrangement which was developmentally inappropriate; and, fourthly, the emotional crisis which was replicated over subsequent visitations. 

22. Mr P emphasised the lack of stability, security and the lack of absolute belonging that N experienced which had as its origin his earliest experiences with his family, the disruption then caused to him and the likely emotional damage created.  He drew attention to "the most obvious feature of the constipation," namely of "extreme physiological control" which was of a heightened level of anxiety.  Significantly, Mr P made what I regard as an important observation:

    “To his credit, [the husband Mr Cain], in an interview with [N], seemed to very quickly grasp the complexity of [N]'s difficulties and distress, and the limited usefulness of a formulation by him which so directly implicated [the wife].  [The husband] seemed to grasp quickly the idea that [N] was experiencing significant problems related to this feeling of integration or lack of integration, and that his wish to have a relationship with his son was exacerbating his problems.  He told [N] directly that he only wanted what was best for [N], that he would respect [N]'s wishes, that he would accept his son's request for name change, and that the last thing he wanted to do was to make things worse for [N].”

    The husband revealed himself capable of considerable insight and empathy and concluded that “I always thought it was his mother but I didn't realise how difficult it was for [N].” 

23. Mr P opined that the situation was now at a point where "constructive intervention" of any sort was difficult.  He said that N completely rejected any prospect of seeing his father, told his father that he did not want him writing to him or ringing, sending gifts or acting in any matter which formalised a psychological connection between them.  He was of the view that:

    “… in all likelihood, the rigidity of [N]'s presentation reveals covertly the enormous sense of loss that he feels in relation to his father's family, something well beyond his capacity to conceptualize or acknowledge now, but which I think is likely to be central to understanding his psychological problems.  Unfortunately, acceding to [N]'s wishes may alleviate his symptoms in the short term but will drive the origins further into the realm of unconscious psychological difficulty, and in this regard, heightens the likelihood of expression in a more pervasive sense later in his life and in other relationships.”

    I regard that as a very important commentary by Mr P and I have every ready expectation that both the husband, the wife and Mr Morris will give it due weight. 

24. Mr P expressed the view that it would not be constructive to oblige N to spend time with his father and that litigation was only likely to worsen the situation by entrenching the child's fears and feelings about his father and the disruption that his father's actions cause to the family.  He went on to observe that both the husband and the wife should look at themselves and their own behaviour, reflect upon N's experience of them as parents and his experience of them as a part of his family unit in order to gain valuable insight into the origin not only of N's problems but the future difficulties he will experience. 

25. In conclusion, Mr P had this to say:

    “Whilst at one level I am extremely reluctant to collude with [N]'s construction of events and in particular his justification for not wanting to see his father, the reality is that he is at a stage in his life that his wishes should be respected, and especially so given the sensitivity and the psychological vulnerability with which he is confronted.  I do however believe that the only likely pathway for N to experience future interpersonal and psychological health may lay with his biological parents.  Striking by the absence is any communication, cohesion, cooperation or parental interaction.  Even them communicating only via their solicitors is a lamentable reflection of what is fundamentally a destructive process in the context of a highly vulnerable child who is presenting with major psychological problems exposing him to greater vulnerability in the future.  Whilst on the one hand I believe that [the husband] should respect [N]'s wishes and not have contact with him, the one area in which work could be done is between [the husband] and [the wife], re‑establishing them as [N]'s parents, working towards establishing a better post‑separation relationship, and for [N] to know about this so as to give to him a different experience of that that has been prevalent throughout his life.  I again refer to the last sentence of Mr [B]'s report that he wished for [N]'s sake that his parents could work together.  Ultimately, these are views I share in totality, and predict that a failure to do so will result in a much heightened likelihood of [N] having problems into the future.”

26. I have earlier said that I found the report of Mr P to be most insightful, and that which he has expressed in his report are words that must be fully digested by all the significant parties in these proceedings. 

27. In support of the application, the wife deposed that N had resided with Mr Morris and herself since January 2001 and that from an early age Mr Morris had been centrally involved in the parenting of N.  They now have, as I said, two children of their own, with whom N shares a close and loving relationship.  She said they interacted well together and participated  together daily as a function of their joint lives.  Mr Morris also deposed to his close and loving relationship with N and his daily involvement in the boy's general nurture.  It is not contested that this is not so.

28. In all of the above circumstances, I propose to grant leave to Mr Morris and make the orders sought.  I do this however primarily because, in the result, it was a communication by Mr P to the Independent Children's Lawyer that he supported the adoption application.  In my view, it is in N's best interests to do so.  I will go through the fundamental reasons for exercising my discretion in favour of such orders. 

    28.1Firstly, the report of Mr P is a significant evaluation of N's dilemma, as he formed the view that litigation in this court would be basically futile and hardly a resolution to the child's difficulties.  He was of the view that N should not be forced by court order to see his father.  He provided a sound psychological understanding of the position of each of the parents and of N, to which no dissent has been drawn. 

    28.2Secondly, the child has a sense of emotional security within the structure and fabric of his mother's household, which operates as a traditional nuclear family.  He has siblings with whom he is closely, indeed intimately, bonded.  He has respect and affection from Mr Morris, who has played a significant role in his nurture, development and maturity for the past six or so years. 

    28.3Thirdly, for the last four years N has not seen his father.  I make this observation without being critical of the husband, for such circumstances have been substantially out of his control. 

    28.4Fourthly, N suffers a debilitating physical dysfunction which requires care, control and professional scrutiny.  It can be agitated by stress.  To dictatorially foist a contact regime upon N contrary to his firmly held and declared wishes must surely be contrary to his general sense of wellbeing and capable of generating unnecessary stress, agitation, tension and perturbation.

    28.5Fifthly, the husband has had the benefit of legal advice and consents to the making of the order.  I regard that as significant. 

    28.6Sixthly, Exhibit “B” to which I have earlier referred, is a communication from Mr P to the Independent Children's Lawyer, asking for his view on the current application with which I am dealing.  I will engross into this judgment his response dated 8 November 2007:

    “Thank you for your letter of 7 November 2007, regarding the issue of adoption.  I understand from your correspondence that the father in this matter has indicated that he would be prepared to consent to the wife's new husband adopting the child, and that the wife is agreeable to this course of action. 

    As no doubt you will recall, [N] has had very significant problems, he presents as an exceptionally vulnerable boy, he has refused contact with his biological father in totality, and appears to have a very good and very strong relationship with his stepfather. 

    In the circumstances, and given the agreement between [N]'s parents on this one issue, I feel there is no other choice but to support the adoption application. 

    If you have any questions or concerns, please do not hesitate to contact me.”

1. To some uninformed observers, such an order may be regarded as Draconian.  However, for all the reasons I have advanced, it is an order clearly in the best interests of N into the medium and long‑term future, for it will offer him peace, security and freedom from unnecessary stress and worry.  This has been a fine line decision by me in the circumstances, but the two most significant reasons for granting the application is the recommendation by Mr P and the consent to the process by the husband, notwithstanding that he is professionally advised.

2. However, I wish to make this final observation.  It is doubtless, from my reading of Mr P's report and the file in general, that the husband has strong feelings of love for his son and that in some measure he has surrendered his parental rights out of respect and understanding of his son's present daunting situation.  It is a case of sacrifice.  The unyielding conflict between the wife and himself is regrettable and I would urge that they each carefully regard Mr P's professional observations in this regard and look to themselves for greater understanding so as to secure N's future.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date: 14 January 2008