Pietersen and Pietersen

[2016] FamCA 1029

FAMILY COURT OF AUSTRALIA

PIETERSEN & PIETERSEN [2016] FamCA 1029

FAMILY LAW – CHILDREN – Interim Proceedings – Application by father for the child to engage in therapy to re-establish her relationship with him – Where child is estranged from the father – Where the father lives in Europe and has telephone and face-to-face contact with the two other children of the marriage – Where the child has expressed a desire not to spend time with the father – Where the father’s application for family therapy is dismissed.

APPLICANT: Mr Pietersen

RESPONDENT: Ms Pietersen

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 6038 of 2015

DATE DELIVERED: 1 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 29 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kearney

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

SOLICITOR FOR THE RESPONDENT: Morton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jennifer Weate & Associates

Orders

IT IS ORDERED

1. That the father’s Application in a Case filed 15 August 2016 (as amended on 9 November 2016) be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6038 of 2015

Mr Pietersen

Applicant

And

Ms Pietersen

Respondent

REASONS FOR JUDGMENT

1. B (“the child”) who is 11 years old is estranged from her father.

2. B and her two younger siblings, C aged nine and D aged four and a half, live with their mother Ms Pietersen (“the mother”) in Sydney.

3. The children’s father Mr Pietersen (“the father”) lives in Europe.

4. The current arrangements are that the father sees C and D during school holiday periods. the child has chosen not to spend time with her father other than on one occasion in October 2016, when the child agreed to spend some time with her father but made an excuse and left early.

5. There are competing applications between the parents in relation to the substantive arrangements for the children.

6. The father’s interlocutory application before the Court seeks orders that the family engage in therapy. He proposes to come to Australia for the first school term in 2017 to see the younger children each alternate weekend and each Wednesday overnight and to spend time with the child if she will agree. The father proposes that the family attend upon Dr E who is a clinical psychologist for the purpose of family therapy. He will pay the costs of the therapy. The father also acknowledges that the family therapist might discontinue the therapy at any time if she is not of the view that it is in the child’s best interests to continue.

7. Counsel for the father has made it clear that, if the order in relation to family therapy is not made, the father will not come to Australia for Term 1 of 2017 but will continue to spend time with the children during holidays pursuant to the current Orders that are in place.

8. The mother opposes the father’s application. It is her view that the child is more likely to re-engage with her father if a cautious approach is taken and arrangements are made between the parents. The mother does not believe that orders compelling the child to attend family therapy will have a positive outcome.

BACKGROUND

1. The parents married in 2004 and lived in Europe until 2008 when they moved with the child and C to Australia. D was born in Australia. The family remained in Australia until May 2013 when they returned to Europe. The parents separated in July 2013. Orders were made in Europe to allow the mother and the children to return to Australia and for the children to spend time with the father during school holidays. As part of those proceedings, the children were interviewed by a court appointed counsellor and by a Judge. The father appealed the Orders and the mother and the children were stopped at the airport and prevented from leaving the country. The appeal was ultimately dismissed and the mother and the children arrived in Australia in October 2014 where they have remained since.

2. The father visited the children in Australia in December 2014 and at Easter 2015. An incident occurred during the 2015 visit as a result of which an Apprehended Violence Order was made on 8 April 2015, against the father. That order was extended on 2 September 2015 for a further six months.

3. The father visited again during the 2015 June/July school holidays and spent time with the children in the presence of a supervisor.

4. Interim orders were entered into on 20 April 2016 which allowed the father to spend time with the children during school holidays in two seven night intervals of each school holiday period at the end of Terms one, two and three with the children returning to their mother for two nights in between. The Orders also provide that the children spend three weeks with their father in Australia over the Christmas school holiday period in seven night intervals with the children returning to their mother for two nights in between.

5. In the 2016 June/July school holidays, C and D spent time with their father but the child did not accompany them.

6. In October 2016 the child refused two opportunities to speak to her father but agreed to see him once at the movies. the child made an excuse to cut that visit short.

FAMILY THERAPY IN 2015

1. In 2015, the mother and the father, with the children, engaged in family therapy with Ms F. Ms F was the therapist chosen by the father.  Ms F saw the child on 12 separate occasions. The father had two face-to-face appointments with Ms F and a number of Skype sessions. Ms F prepared a report dated 28 October 2016, noting that the child had attended for 12 sessions between 27 October 2015 and 30 April 2016. Ms F reported that at the time the child presented for treatment in October 2015, she was suffering from anxious and depressive feelings. Ms F suggested that the child was suffering from an anxiety disorder and her condition was mild to moderate.

2. In her report, Ms F stated:

   Formal assessment (questionnaire) and observation as well as interviews with her revealed that she was scared of her father … in general. In particular, when visits with her father are due, her anxiety would skyrocket just prior to arranged visits with him. She informed me of incidents where her father allegedly abused her, including an occasion when he pulled down her underpants when she was younger and smacked her on the thigh in front of other relatives who then laughed. She also talked about an incident where her father threatened to hit and roll a car over a man over an incident which happened in plain sight of her and her siblings, which she reported frightened her immensely. She was also extremely worried that her father would one day hurt her mother … whom she lives with, and I found that she had unconscious thoughts that her mother might die as a result.

3. Ms F reported:

   During the course of treatment, it eventuated that the court had ruled that [the child] does not have to see her father again until a time to be decided. I noticed her moods and presentation immediately became much more comfortable and relaxed and she told me that not seeing her father was ‘the best birthday present’ she received at that time.

4. Ms F stated:

   At the last session with [the child], I felt that she was doing relatively well, although she was still in a fragile and vulnerable position considering her past experiences and the nature of the ongoing custody battle between her parents. I feel that she will never be able to forget the negative experiences she had with her father, but given that she has learnt useful strategies and is still very young, she has a positive future ahead of her.

5. Asked whether the child would benefit from further treatment and, if so, of what nature, Ms F reported:

   As per the last time I saw [the child], I felt that she was in a relatively good space and she was healing well from her negative experiences with her father. I feel that the major contributor to this was that she did not have to meet her father anymore. Assuming that this is still the case, I feel that [the child] does not need any further treatment and she will continue to go from strength to strength.

CHILD RESPONSIVE MEMORANDUM

1. On 19 July 2016, the family met with a Family Consultant, who prepared a report.

2. The Family Consultant, in relation to her interview with the child reports:

   [The child] … is a determined, vocal and straight-talking child. She was unfazed by having to be interviewed for this assessment, saying this was because she has spoken to a lot of people about her thoughts and feelings in relation to her father. [The child] said ‘I’ve seen a lady like you so many times’. She said that she has learnt strategies to deal with her worries and concerns.

   [The child] told the family consultant that she does not want to spend time with her father and is unwilling to do so. She said she holds this opinion because of the things her father has done to her mother and to her. [The child] said that she has seen her father threaten, hit and push her mother. She spoke about her father having ‘kicked us out’ and said that she was scared when he had them arrested at the airport.

   [The child] noted that her mother had not told her these things; saying she had witnessed them for herself. Some of her language seems unusually mature (such as ‘he’s got a very cold family’) but is consistent with her overall manner seeming mature for her age. [The child] expressed some ambivalence about her father, such as noting that she wants her parents to be together again and be happy, noting that this is unlikely and ‘not what I think now’. She also said that she is willing to talk to her father for a short time at the changeovers for her siblings which take place at [Suburb G]. [The child] said ‘the Judge said this was OK’. She said ‘I can go if I want to but I don’t want to after what he did to my mum’.

   [The child] noted that her brother and sister do not want to hurt their father’s feelings. She said ‘I think they’re OK going. I don’t want to go at all.’

3. In relation to the issue of family violence which seems to be at the heart of the difficulties suffered by this family, the Family Consultant reported:

   The parents give opposing accounts about the nature of their relationship. [The mother] said that [the father] was verbally and, at times, physically aggressive throughout the marriage if he did not get his own way. She said that he was physically violent towards her and her mother in Europe in 2010. [The mother] said that she pressed charges against her husband but withdrew them because he was so furious with her for continuing her claim. She said that the last occasion that [the father] was physically violent towards her was in April 2015 when he came to Australia to spend time with the children. This occasion was witnessed by the children who, she said, were very frightened.

4. The father gave a different version of events to the Family Consultant. In relation to the father the Family Consultant reported:

   [The father] describes himself as the subject of [the mother’s] bitterness and anger. He described [the mother’s] verbal abuse of him. He acknowledged ‘smacking’ [the mother] on the face during an argument when they were holidaying in Perth in 2012. He said that he apologised to [her] and insists that this was the only occasion he physically hurt her. Of the incident that lead to the Apprehended Violence Order being made in 2015, [the father] said that [the mother] brushed past him and fell over, refuting [the mother’s] version of events.

5. The father had no explanation to the Family Consultant for the child’s unwillingness to have anything to do with him other than his belief that the mother has negatively influenced the child. The father told the Family Consultant that he had met with Ms F and the child but he believed that Ms F has sided with the mother and he would like the child to be referred to another independent counsellor. The father told the Family Consultant that he was very keen to participate in counselling so that things could improve between him and the child.

6. The mother told the Family Consultant about her attempts, during the last holiday visit, to organise an activity that the child would agree to attend. The mother said that on the last holiday visit the child agreed to go to a movie with her father but the father would not accept that suggestion. The father told the Family Consultant that he did not know the suggestion had come from the child.

7. The mother has continued to suggest to the father ways that he could spend time with the child. On 7 November 2016, the mother sent an email to the father proposing some short periods of time with the child over the Christmas holiday period and inviting the father to attend at her home on Christmas Day to collect the children so that the child could play a piano piece for him. The father rejected that proposal.

8. On 11 November 2016, the mother made a further  proposal which involved the child spending short periods of time with the father in each of the weeks when he has C and D over the Christmas period.

EVIDENCE OF THE FAMILY CONSULTANT

1. The Family Consultant was cross-examined in relation to the father’s application that the family once again engage in family therapy.

2. She gave evidence of the likely risks attendant upon family therapy and the risks attendant upon taking the approach which is urged by the mother.

3. The Family Consultant said, starkly, that the best thing the parents could do for the child and the most effective way to ensure that the child’s relationship with her father improves, is for the parents to improve their own relationship.

4. The Family Consultant said that the child would probably engage quite quickly with a therapist but that, if the child felt that the father was unable or unlikely to address what the child perceives to be his part in their estrangement, then she will probably refuse to participate further in the counselling. The Family Consultant predicted that if that were to happen then the child’s relationship with her father would worsen and probably be irretrievable.

5. For family therapy to be effective, the Family Consultant said that both of the parents would need to acknowledge his and her role in the breakdown of their family relationship.

6. She also said that the family therapy would only be effective if both parents willingly engage, make concessions, and acknowledge their contributions to the difficulties that the family now experiences.

7. She said that one advantage of family therapy would be to give the child a safe venue to vent her anger against her father.

8. In relation to the father’s attitude to the family therapy in 2015, the Family Consultant reflected that sometimes a parent perceives that a therapist has failed, or aligned themselves with the other parent, because the parent does not want to hear what the therapist is telling him or her.

9. The Family Consultant said that the father’s proposal to live in Sydney and see the children weekly while engaging in family therapy might make the child feel pressured and that the current arrangement where he comes to Australia for holidays might give her some respite.

10. The father’s proposal to live in Sydney for one school term is probably unrealistic. The Family Consultant said that family therapy may take longer than the ten weeks of Term 1.

11. The Family Consultant acknowledged that the mother’s approach might be successful for the child. She acknowledged that the October visit was an improvement. She also said that, if nothing improves, she would have concerns about leaving things as they are. I inferred her to mean that the mother’s option should at least be given an opportunity before taking the step to family therapy.

12. The Independent Children's Lawyer submitted that the child is in danger of losing one of her parents if there is no intervention. She submitted that if, at the end of the final hearing, an order is made for family therapy, then a year will have been lost when the relationship between the child and her father might have been repaired had therapy been attempted now.

13. There is merit in that submission.

14. However, in my view, the risks attendant on further family therapy, against the child’s expressed wishes, are significant.

15. There is no evidence that the father is willing to engage in therapy with the child on a platform which includes acknowledging her perspective. It may be that the father needs to engage in therapy himself to enable him to do so.

16. I accept the evidence of the Family Consultant that, if the father is unable to make some acknowledgement to the child of his responsibility for past actions, the family therapy will not be successful and the child’s relationship with her father is likely to be irrevocably terminated.

17. While the course suggested by the mother has no certain outcome, it also has no significant risk.

18. On balance, the option with the lesser risk of harm is that proposed by the mother.

19. The father’s application will be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 December 2016.

Associate: 

Date:  1/12/2016