PHITZNER & HOLLAS

[2016] FamCA 466

FAMILY COURT OF AUSTRALIA

PHITZNER & HOLLAS [2016] FamCA 466

FAMILY LAW – CHILDREN – interim – where there are final orders but the father seeks an amendment – where the father has not seen the children for some time – where the children’s school attendance is sporadic – where the mother seeks a suspension of the father’s time – where there are allegations of child abuse – where there is a psychiatric report – where there is a pending family report – where the father’s time with the children is suspended during the period of the adjournment.

Family Law Act 1975 (Cth) s 62G(2)

APPLICANT: Mr Phitzner

RESPONDENT: Ms Hollas

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4259 of 2012

DATE DELIVERED: 10 June 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 31 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts

SOLICITOR FOR THE APPLICANT: Coombs & Associates

COUNSEL FOR THE RESPONDENT: Ms O'Connor SC

SOLICITOR FOR THE RESPONDENT: D'Angelo Kavanagh

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

Orders

1. That during the period of the adjournment paragraphs 3, 7 and 8 be suspended provided that the parties be at liberty to obtain at their own expense copies of school reports, school newsletters and school photographs of any school or educational institution at which the children may from time to time be enrolled.

2. That no further affidavits are to be filed other than by the Independent Children’s Lawyer without leave.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phitzner & Hollas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC4259/2012

Mr Phitzner

Applicant

And

Ms Hollas

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are the parents of W born in 2004 (“W”), J born in 2006 (“J”), Y born in 2007 (“Y”) and Z born in 2009 (“Z”) (collectively “the children”).

2. The parties have been in conflict over the parenting arrangements for the children since 2012. 

3. Following a lengthy hearing in February and April 2014 final orders were made on 28 May 2014 summarised as follows:-

   (1)That the parties have equal shared parental responsibility for the children.

   (2)That the children live with the mother.

   (3)That the children spend significant and substantial time with the father including five nights per fortnight, one half of school holidays and at other times as may be agreed between the parties.

4. It appears that the resolution of the proceedings did little to dampen the enthusiasm of the parties for conflict in respect of the parenting arrangements for the children.

5. The father filed an Initiating Application on 4 December 2015 seeking a relatively minor amendment to the final orders to take into account his work roster.

6. The interim orders were drafted in similar form.

7. The benign nature of the orders sought by the father belies the serious conflict as set out in the father’s affidavit filed in support.

8. The parties apparently entered into a parenting plan to give effect to the father’s work commitments.  A copy of the plan is annexed to his affidavit.

9. The father alleges that he has not seen W since 26 June 2014.  He says that access has been impossible and it has now been almost two years since his last contact with W.

10. He also contends that W has not attended school now for more than two years whilst in the mother’s care. 

11. The father has not spent time with J since 20 July 2015.  In a similar pattern to that of W, J also did not attend school and the records show he attended on 29 days out of a possible 99 days in 2015.

12. The father has not seen Y and Z since August 2015 although he did attend their sports day on 18 September 2015.

13. The father received various messages from the mother asserting that she had “deep concerns for the children’s safety and welfare as they are very distressed”.  She alleges that the children were refusing to see the father.

14. The mother filed a Response to the Initiating Application on 14 January 2016.  By way of final orders she seeks that the operative orders of 28 May 2014 be discharged, that she have sole parental responsibility for the children and that the father be restrained from approaching the children, attending their school or removing the children from the Commonwealth of Australia.

15. By way of interim orders she seeks that the operative orders be suspended and that the mother be at liberty to arrange for the children to attend upon child mental health services (CAMMS) for assessment and treatment of the children at the joint expense of the parties.

16. Further the mother seeks to obtain written reports in respect of each of the children.  In her affidavit filed in support of the Response the mother summarises her position in the following terms:

    [12]From my separation from the father until now, despite what the judgment said about the findings in relation to those issues, I have had and continue to have the same ongoing concerns about disclosures by the children and about the safety of the children when living with the father as I disclosed at trial. After the judgment the children reported, as they had done before, complaints about the father’s time with them which caused me to continue to hold the concerns I gave evidence about at trial. I decided to keep contemporaneous notes of their reports and concerning conduct. I have kept most of these notes in various exercise books and on loose sheets of paper and can produce these to the court if requested.

17. The mother records in great detail her interaction with the children in respect of matters relating to their father and their time with him from May 2014 to January 2016.

18. Whilst an inadequate summary of each and every allegation and assertion recorded by the mother, the tenor of her concerns is mirrored in the Notice of Child Abuse filed contemporaneously with her Response.  The mother alleges abuse described as follows:

    (1)On 2 December 2014 the mother alleges that she observed the children Z and Y kissing one another in an inappropriate way whilst seated in the rear seat of the mother’s motor vehicle.  Later in the afternoon on 2 December 2014 Z told the mother words to the effect “dad kisses me, his tongue touches my tongue”.  Z told the mother that this happened at the paternal grandmother’s house.  The father was spending time with the children at the paternal grandmother’s house and the mother believes that the father has sexually assaulted Z.  The mother reported the incident to SAPOL.

    (2)On 9 December 2014 the mother alleges that Z said to her words to the effect “dad touched my vagina under the blankets.  He put his hand in my pants”.  The mother made a report to SAPOL regarding this alleged incident.

    (3)The mother alleges that W told her that the father had assaulted J during time spent with the father in July 2014.

    (4)The mother alleges that on 7 May 2015 J told her that the father had dragged him by the leg through the back garden.

    (5)The mother alleges that on 7 May 2015 W and J told her words to the effect that the father “gets really angry and makes them do what he says or he hurts them really bad”. 

    (6)The mother alleges that on 12 August 2015 Y told her that her father touches her on the bottom with his fingers and that he squeezes her hand really hard when he gets angry.

    (7)The mother alleges that the children are subject to excessive use of force when being disciplined and that they are being physically and psychologically harmed in the care of the father.  Notwithstanding the mother’s concerns she says that she has done the best that she could to comply with the trial direction orders but that both W and J are “steadfast in their refusal to spend time with the father”.  Y is now also expressing increased resistance.

19. The mother seems to accept that she may be causing the children psychological harm by damaging their relationship with the father and that:

    [271]… in doing do I am aware that it may be that the children are making these allegations and exhibiting these behaviours for reasons other than abuse by the father.  In support of this fear of mine I note the absence of injuries consistent with their disclosures.

20. By affidavit filed 8 February 2016 the father now amends the orders sought in his Initiating Application in that the children J, Y and Z live with him and spend time with the mother as agreed but that W continue to reside with the mother and spend time with the father subject to his wishes.

21. For his part the father denies each and every allegation and proffers his own explanation for the children’s refusal to attend school and any alleged reluctance to spend time with his as a clear consequence of the mother’s obsessional conduct and an unwillingness to accept the outcome of the trial proceedings. 

CURRENT POSITION

1. By agreement between the parties a joint letter of instruction was forwarded to Prof JJ dated 11 March 2016 requesting a medico-legal psychiatric opinion in respect of the children.  In response to the joint request a report dated 30 March 2016 is annexed to the affidavit of the mother’s solicitor filed 13 May 2016. 

2. Prof JJ considered the history of the parties and in particular the children and gave weight to the psychiatric assessment of W by three child psychiatrists from 2012 to 2015.  In particular he considered that W’s behaviour was reflective of a diagnosis of “reactive attachment disorder of childhood” reflecting the evident disturbance in parenting. 

3. It is of note that the enquiries of Prof JJ revealed that whilst the concerns for W and J were serious, in respect of Y and Z their anxiety was not unexpected given the family circumstances but in particular was not “suggestive of any specific psychiatric disorder”.

4. In his opinion Prof JJ considers:

   With regard to treatment, no treatment that is directed towards any or all of the children individually has a realistic chance of significant success; it is only through work with the custodial parent as currently being pursued that meaningful psychological change is likely to be achieved for the children.

5. Further, he opines:

   Speaking as a psychiatrist acting in the best interests of the children, I believe that it has been clearly demonstrated that, for whatever reason, the parents cannot work collaboratively to care for the children.  Their ongoing conflict constitutes an unmanageable burden on the children.  Independent of the rights and wrongs of each parent’s claim, it is therefore in their best interests to be entirely in the custody and guardianship of one parent, with that parent making a commitment to ongoing therapeutic support such as currently as being provided by CAMMS.  Based on the information available to me, I am not reassured about the parenting capacity of either parent.  Should the Court concur with my view that one parent should take on full custody and guardianship, it is recommended that an expert clinician carry out a parenting capacity assessment on each parent to help guide the decision about which parent should have custody.

CURRENT APPLICATION

1. The gravamen of the mother’s application is to suspend the orders of 28 May 2014 pending further assessment of the children by CAMMS.  The father resists the interim orders sought by the mother. 

2. The proceedings came before me on 20 May 2016.  The parties were represented by counsel and senior counsel and the Court had the assistance of an Independent Children’s Lawyer (“ICL”). 

3. The ICL reported to the Court that he had only recently received documents on which the father intends to rely.  Proceedings were further adjourned to 31 May 2016.

4. The ICL submitted that he held significant concern as to the parenting capacity of each of the parties.  It was however a matter of practical reality that the children are in the care of the mother and that in any event the father’s application does not seek an enforcement of the final order in respect of W. 

5. The father accepts that W is unlikely to accede to any order that he spend time with the father unless it accords with his wishes.  Whilst that position is regrettable in respect of a child of nearly 12 years of age it is a matter for the father as to whether he presses time with W.

6. There is also difficulty with J and in any event both W and J remain significantly unsettled at school.

7. There is however some reason to hope that W and J may well be able to return to attendance at school on a full time basis.  There is clearly more that is necessary before that goal can be achieved.

8. Y and Z appear less problematic and the enquiries of Prof JJ suggest that they are not troubled or anxious to the level of their brothers.

9. The current status of the children is uncertain.  It is unfortunate that almost 18 months has elapsed between the final orders and the filing of the Initiating Application.  The children’s position may well have become entrenched and I do not think it is possible to understand the presentation of the children from the affidavit material.

10. On 31 May 2016 an order was made for the preparation of a report pursuant to s 62G(2) of the Act noting the advice of the director of child dispute services that the report can be accommodated towards the end of July 2016.

11. I have adjourned further consideration of the interim proceedings to 10 August 2016.  The issue is whether the orders should be suspended during the period of the adjournment. 

12. On balance I consider that there should be a suspension of the orders that provide for the children to spend time with the father.  I do so not because I accept that the mother has successfully argued that the father presents as a risk to the children but because the children need to be given as much opportunity as possible to settle into regular school attendance free from the potential for conflict and anxiety should the father continue to attend the school as the handover venue.

13. I am also mindful of the possibility that the behaviour of the children is significantly influenced by the mother’s anxiety concerning the father’s involvement with the children.

14. The Court is likely to be significantly assisted by the ordered assessment and the submissions of the ICL as to how best to give effect to the concerns of Prof JJ that the development of the children is adversely affected by the ongoing conflict.

CONCLUSION

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 June 2016.

Associate: 

Date:  10 June 2016