Prantage & Prantage

[2011] FamCA 481

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE [2011] FamCA 481

FAMILY LAW – INTERIM ORDERS - Urgent need to change residence

Family Law Act 1975 (Cth)

APPLICANT: Ms Prantage

RESPONDENT: Mr Prantage

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11263 of 2008

DATE DELIVERED: 22 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Benjamin

SOLICITOR FOR THE RESPONDENT: Gadens Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr T J Mulvany

Orders

1. That paragraphs 4 to 9 inclusive of the orders made 24 December 2010 are discharged.

UNTIL FURTHER ORDER:

1. That the wife have responsibility for making major long term decisions concerning the health and education of the children M born … December 1998 and D born … June 2002 (“the children”) provided that at all times she notify the husband of such decisions in writing care of his lawyers.

2. That commencing forthwith the children live with the wife.

3. Save as provided in paragraphs 8 and 7(c) of these orders, the children spend no time nor communicate with the husband (and without the husband admitting the necessity for such order).

4. The husband by himself, his servants and agents (such expression to include the husband’s parents) be and are hereby restrained from communicating or attempting to communicate with either or both of the children in any manner including but not limited to text messages, email, Facebook or any other form of social communication.

5. That the wife be at liberty to remove the children from their respective schools forthwith until the commencement of Term 3 2011.

6. That for the purposes of resumption of the attendances of the parents and the children upon Dr NZ pursuant to paragraph 3 of the orders made 24 December 2010:

   (a)    the mother, father and the children shall attend upon Dr NZ as and when requested by Dr NZ;

   (b)    the cost of appointments with Dr NZ be borne equally between the husband and the wife but be subject to review in any future proceedings; and

   (c)    unless otherwise directed by Dr NZ, there be no meeting between the father and either or both children prior to 30 September 2011 and thereafter, as directed by Dr NZ.

7. That the father be at liberty to forward cards and presents through Dr NZ and the mother be at liberty to deliver cards and messages from the children to the father through Dr NZ with Dr NZ being at liberty to withhold all or any such cards and messages.

8. The parties have liberty to apply on formal application.

9. That the Independent Children’s Lawyer be at liberty to provide a copy of this order to any other person or persons he considers ought receive a copy of same.

10. That as soon as practicable this day, a family consultant appointed by the Director of Child Dispute Services attend upon the children to explain to them the terms and conditions of these orders AND IT IS REQUESTED that the principals of the respective schools of the children do all things necessary to assist in enabling the family consultant the opportunity to explain these orders to the children.

11. That in the event that either or both of the children contact the father and/or attend his home and/or attend the home of the paternal grandparents, the father do all such things required to ensure that the children and/or child are immediately returned to the home of the mother.

12. That until further order each party Ms Prantage born … 1970 and Mr Prantage born … 1965 their servants and/or agents be and are each hereby restrained from removing or attempting to remove or causing or permitting the removal or attempted removal of the said children M born … December 1998 (female) and D born … June 2002 (male) from the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said children’s names on the Watch List until the Court orders its removal.

13. That all interim applications be otherwise dismissed.

14. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

AND THE COURT NOTES

A.It is noted that the father does not consent to these orders and it is further noted that no representation will be made to either or both children by the mother or her family and friends or the Independent Children’s Lawyer that the father did not oppose these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11263 of 2008

Ms Prantage

Applicant

And

Mr Prantage

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 22 June 2011, I made orders changing the residence of the children of Ms Prantage (“the wife”) and Mr Prantage (“the husband”). The husband did not consent to that arrangement but he also did not oppose it. I said I would give reasons setting out why I considered the orders were in the best interests of the children M born … December 1998 and D born … June 2002. These are those reasons.

2. On 24 December 2010, I made orders after a contested hearing. Those orders may be summarised on the basis that the children were to live with their father and spend some time with their mother each week. Importantly for the reasons today, I also ordered that the parties participate in a family therapy program to endeavour to re-establish the fractured relationship between the children and their mother. I otherwise adjourned the parenting proceedings until December 2011 to consider then what to do. My reasons then were portentous. I observed and I quote from a number of passages from my reasons:

   It will be obvious that unless there is a radical change brought about by a therapeutic intervention, [M] and [D] have little prospect in the immediate future as children of enjoying any of the aspirations so defined.  But it must also be remembered that there is a community expectation that parents will be significantly involved in the lives of their children for the purposes of assisting in the care, welfare and development of them.  A positive approach by both parents in this case is fundamental for those objects and principles to be met.

   I am very concerned about the nature of the relationship between the children and the husband.  He provides daily sustenance and living but watching him giving evidence indicates that he is not coping emotionally and it would appear that the children have become embroiled with him in a distaste of the wife.  I have earlier referred to the expert evidence and social science literature about enmeshment.  Time will tell whether these children have simply picked up the persona of the husband.  That would appear to be very unhealthy.

   I have significant doubts about the husband’s capacity whilst in his current emotional state to facilitate a relationship between the children and their mother. 

   Part of the problem in this case is the question of the capacity of each of the parents to provide for the needs of the children.  Those needs include the emotional and intellectual needs.  All of the evidence would indicate that the children are coping with the daily activities save for having a meaningful relationship with their mother and her extended family.

   …

   If the husband cannot convince the children that it is important for their emotional wellbeing to have a relationship with their mother in a meaningful way, it is conceivable that I could find he does not have the capacity to provide for the children.  At the moment, his psychological state shows that he is unable to find the solution.  The orders that he proposes place much of the responsibility for finding that solution on experts. 

   Whilst those experts will endeavour to resolve the problem, the husband must use his responsibilities as a parent to ensure that the children see their treatment as positive for their future.  If he conveyed to the children what he conveyed in court which was a resigned nature to the inevitable failure of any such relationship or he fails to step in and stop the negativity as was evidenced in the taped conversation in the car with the children, it is conceivable that I may find his capacity lacking as a parent.

3. On 23 May 2011, the wife filed an application seeking to discharge the relevant orders of December 2010 and for the children to live with her.

4. On 14 June 2011, the husband filed a response seeking to continue at least the residence component of the December orders but otherwise asked to be excused from setting out what orders he wanted pending the outcome of an investigation by Department of Human Services.

5. The proceedings in 2010 had Mr Mulvany as the Independent Children’s Lawyer and on 25 May 2011 at a preliminary hearing, I requested Victoria Legal Aid to consider extending financial assistance for his involvement which had otherwise ended.

6. The Independent Children’s Lawyer supported the wife’s position.

7. The evidence upon which the decision was made on 22 June 2011 was very limited and also untested by cross-examination.

8. The most significant witness was the family therapist Dr NZ. Dr NZ had prepared a report which was annexed to an affidavit and I was informed that she had made herself available for cross-examination. Ultimately, that became unnecessary as no party asked for her to give evidence.

9. I do not need to set out in any detail the evidence of the parties. It is reasonable to say that the time that the children have spent with their mother and the involvement of the family therapist has been largely unsuccessful to date.

10. In the proceedings culminating in the orders in December 2010, psychologist Mr O expressed concern about the mental health of the children. Their behaviour was bizarre.

11. The husband continued to maintain that the children did not want anything to do with their mother and maintained they were being ill-treated.

12. The wife continued to persevere with the children. At times they simply sat for hours looking at a wall, refusing to talk to her, eat or even go to the toilet. None of that could be seen as normal for children of the ages of M and D. They continued to claim that no-one believed them. I heard the evidence last year and made findings. I am satisfied they did not see what they allege nor that they are in any physical danger.

13. The Department of Human Services has been involved with this family. The representative of the Department declined to intervene but went further and said they would not take proceedings in the Children’s Court nor protective action. They said that they would leave the issue to this Court. Curiously, the affidavit material referred to discussions with a representative of the Department whose name was not mentioned in the formal communiqué with the Court. The representative seemed to have a different approach to that of the official line.

14. The Victoria Police have also been embroiled in this dispute. They have been called and have attended as they must. However, they have had to listen to adults and children with very subjective views about what was going on. That places them in the invidious position of having to interfere in the private lives of two children who should be protected by their own parents from the conflict. I had the benefit of observing many days of adult behaviour in the witness box and although some might consider that a sanitized version of the truth, I am satisfied in this case that, as was once wisely said, “the curtains momentarily parted and the world was able to look inside”. Victoria Police have much more important things to do than quell inappropriate parenting behaviour.

15. Dr NZ was a critical witness. She had not been involved in the proceedings before this. She had read my December reasons and interviewed the relevant people. She described the children as not easy to engage and resistant to therapy but she too persisted.

16. It is sufficient for me to focus on the opinion of Dr NZ having regard to the fact that her evidence was not challenged. She said:

    ·the visits had not stretched the children’s determination to reject their mother;

    ·D seemed less emotionally involved (than M) in perpetuating untruths and his position was one of loyalty to his sister and father rather than dislike of his mother;

    ·The children did not want to live with their mother;

    ·The husband appeared to have little insight such as would enable him to change his behaviour towards making any relationship between mother and children work;

17. Dr NZ opined that the children’s psychological and emotional future was very bleak with the husband. That is a damning statement and very worrying having regard to the stance adopted by the husband. Again I stress, this evidence was untested but also unchallenged in the context of the orders I made.

18. Dr NZ also thought that there were risks of the children running away if they went to live with their mother and that there would be a heavy emotional toll on M in particular.

19. Dr NZ’s view was that the children should live with their mother and not see their father to ameliorate his influence. Whilst that would be difficult, Dr NZ thought that they would quickly adapt and their long-term prospects would be much better.

20. The wife and the Independent Children’s Lawyer promoted the concept suggested by Dr NZ. The husband did not support it but he also did not oppose the orders. The parties asked me to note that the children would not be told by either side of the husband’s position. The husband’s counsel said that the husband wanted me to know that he was carrying out the wishes of the children.

21. It is appropriate in this case to make the orders sought by the wife and the Independent Children’s Lawyer.

22. Nothing has changed in the evidence since I gave my reasons in 2010 other than the therapy has not seen much more than a flicker of light in the relationship between the children and their mother. Conversely, the relationship between the children and their father seems more intense.

23. All of the matters that I am required to consider in Part VII of the Family Law Act 1975 (Cth) (“Act”) have not only been considered in December 2010 but reconsidered here and nothing has changed.

24. Section 60CA of the Act requires a Court to make an order that is in the best interests of a child. Any orders of any nature in this case are tainted with difficulty and I have no confidence that the parents have the capacity to effect change by themselves. The children will be affected by the change but the short term pain may give effect to some long term gain. I am very conscious that Mr O said in the substantive proceedings that radical approaches such as removing children in cases like this did not usually work successfully.

25. Here, I have a strongly articulated view from Dr NZ. It is important that I try something different. Suffice to say, I consider these orders in the best interest of M and D.

26. At my suggestion, a family consultant was ordered to attend the schools of the children to explain to them that they were going to live with their mother. The children had attended school obviously not knowing the outcome. I considered that a social scientist was the best person to explain that the children were not empowered to make decisions for their own future and that their parents had that same right removed because of the positions that the children faced.

27. The husband’s role and that of his family will be reviewed by the parties in the months ahead. I have given liberty to apply.

28. Because of the highly controversial nature of this case, I have made orders that the Independent Children’s Lawyer may send copies of the order to persons concerned with the welfare of the children. I think the Department of Human services and Victoria Police should be made aware of these reasons as well as the orders.

I certify that the preceding Twenty Eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 June 2011.

Associate: 

Date:  23 June 2011