PEM & AIM - [2005] FMCAfam 712

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PEM & AIM

[2005] FMCAfam 712

FAMILY LAW – Contact – long absence of father – father ceased previous proceedings 4 years ago – allegations of violence and children’s issues – need for preliminary report.

Applicant:

PEM

Respondent:

AIM

File Number:

MLM 4670 of 2000

Judgment of:

Reithmuller FM

Hearing date:

29 November 2005

Date of Last Submission:

29 November 2005

Delivered at:

Melbourne

Delivered on:

29 November 2005

REPRESENTATION

Counsel for the Applicant:

Mr Schetzer

Solicitors for the Applicant:

Collards

Counsel for the Respondent:

Mr Testart

Solicitors for the Respondent:

Pearsons

ORDERS

The matter be adjourned to 27 January 2006 at 9.30 a.m. for mention.
A preliminary family report as to issues relevant to an introduction of the father to the children be obtained and that:
(a)Each of the parents and children attend upon the report writer Mr Papaleo and that the mother ensure that the children P born …August 1988 and M born …February 1991 so attend on 13 December 2005; and
(b)The children not be required to meet with the father for the purpose of such report unless they provide the report writer with their consent to do so.
The father pay at first instance for the cost of the family report.
Both parties’ costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 4670 of 2000

PEM

Applicant

And

AIM

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application with respect to contact between the father and two children, P, born …August 1988, and M, born …February 1991.
The father proposes in this matter an initial course in the litigation of a conservative nature, that is a preliminary report from a well-known report writer, Mr Papaleo, with respect to potential re-introduction of him to the children. He has not had contact with the children for many years.
There are no orders in place refusing him contact, rather he abandoned a contact application in proceedings before his Honour Kay J in the Family Court of Melbourne on 15 April 1996.
Notably at page 7 of his transcript his Honour said:
I think we might be philosophically different here in that the current referral of the father of an application for access is not an abandonment for all time of a relationship with the children. I do not perceive it to be such.
It is an abandonment for the current time due to the current stresses. In order to be able to, at an appropriate time, if one arises, renew an application for access, the father ought to have some indication of where his children are -
His Honour then goes on to discuss some issues relating to knowledge of the whereabouts of the children and the like.
It appears clear to me that the way in which the proceedings resolved on that occasion should not be taken as the father formally abandoning a relationship with the children, but rather abandoning pursuit of the proceedings at that time.
I am fortified in that view by the terms of the family report which is annexed to the affidavit of the father in these proceedings. It is the family report prepared in 1996 and sets out in the conclusion as follows.
Given the children’s responses the prospect of access, even supervised, seems remote at this stage. It is not clear that the children fear their father, for much of their responses about him lack substance and detail. Indeed their responses seem to indicate that rather than fear him, they do not know him. This may reflect PEM’s lack of involvement with the children over time.
P confirms that his mother does not support any contact with his father and this knowledge of her views would make it extremely difficult for the child, if he did not have some interest in seeing his father. Indeed, AIM’s strong opposition to access appears to lack some substance based in the main on the belief that the family was abandoned by PEM and that he only wishes access for the paternal grandparents.
A further obstacle to access has emerged and that is the children have witnessed years of fighting between the parents. For the children access has, to date, become a replay of this. It is clear that the children are under extreme pressure and it is difficult to imagine how it will work. While AIM remains so opposed to access and the children strongly assert that they do not wish to see their father, forcing the issue will continue to place them under enormous stress.
I note that orders were made that would have enabled the father to at least be aware of the schooling of the children and provide some gifts to them. The mother, in at least her admission from the bar table, has breached at least one part of those orders in failing to tell the father where the children are attending at school. The father alleges that other parts of the orders were breached, such as returning the gifts that he had sent to the school for the children, and not having the children attend at times when their school photos would be taken, which effectively denied him the ability to have photographs through the school photograph regime.
These matters are, of course, still in dispute. They are denied by the mother and are a matter for trial. The mother most importantly sets out her concerns that there will be significant psychological harm to the children if there are even proceedings on foot or a report prepared about whether or not they should have any re-introduction to the father or relationship with him.
The mother set out her case in a brief affidavit, the tenor of which, if it were proved, would show the father in a particularly poor light. However, it is difficult at this time, to make any proper assessment of the nature of the case of each of the parties.
The children otherwise appear to be doing reasonably well, according to the mother's material. It appears to me that after a lengthy period, if there has been serious physical abuse many years ago, this may be a reason not to re-enliven the proceedings if it is likely to cause the children significant harm.
However, some realistic assessment of this must be undertaken, bearing in mind the fact that it is generally be accepted to be of psychological and developmental harm to children not to have some form of relationship with or knowledge of both of their parents.
Whilst it might appear a difficult balance, it appears clear to me that the best interests of the children in this case are served by a preliminary report by Mr Papaleo which can be conducted without requiring them to necessarily be in the presence of the other parent. Recommendations can be made to the court as to the potential harm or risk to the children of proceedings continuing, and the children's desire for proceedings to continue or not. Given the ages of the children, it may be that their views are a practical end to the proceedings in any event.
In coming to this view I also place weight on the fact that the maternal grandmother and the mother's brother both appear to have contacted the father in recent times, suggesting that he have some relationship with the eldest child, and that in this sense it is not unrealistic to see the proceedings as in some way prompted by other members of the mother's family.
This could well be an indication of a situation where a child wishes to have some knowledge of their parents but are unable to express the same to the mother, and alternatively - or at least one of many alternatives - is that it could just show some level of dysfunction with respect to extended family fighting with the mother.
There is no way for me to determine those issues today. However, it seems likely that some insight into those matters might be obtained in a a preliminary report by Mr Papaleo.
I also bear in mind that Mr Papaleo is a particularly experienced report writer who has the respect of the courts and the profession and has done so for many years. He has prepared reports in many complex and difficult matters and it is not realistic to think that the children are likely to suffer significant harm merely by an attendance upon him for the purpose of report writing.
I therefore make orders for a report by Mr Papaleo.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Reithmuller FM

Associate: Melissa Gangemi

Date: 1 March 2006