Ressel & Morath (No 2)
[2022] FedCFamC1F 1028
Federal Circuit and Family Court of Australia (DIVISION 1)
first instance
Ressel & Morath (No 2) [2022] FedCFamC1F 1028
File number(s): BRC 12043 of 2020 Judgment of: CAREW J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the father’s Application in a Proceeding seeking time and communication with the child was heard on an urgent basis – Where the mother and the independent children’s lawyer oppose the application – Where the family report and the material more generally identify risks to the child of exposure to conflict and family violence – Where the final hearing of the substantive matter is imminent – Where the Court cannot be satisfied that it is in the child’s best interests to recommence communication with the father when ultimately an order may be made for future contact not to occur – Application dismissed. Legislation: Family Law Act 1975 (Cth) Cases cited: Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
M & M (1988) 166 CLR 69
Number of paragraphs: 26 Date of hearing: 19 December 2022 Place: Brisbane For the Applicant: Litigant in person Solicitor for the Respondent: Damien Greer Lawyers Solicitor for the Independent Children's Lawyer: Queensland Legal Practice ORDERS
BRC 12043 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RESSEL
Applicant
AND: MS MORATH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 9 December 2022 for the father to spend time with and communicate with the child, X born 2014, pending the final hearing listed on 6 March 2023 for three days is dismissed.
2.Subject to any objection, which is to be determined first, the independent children’s lawyer has leave to inspect and copy all documents produced pursuant to subpoena by Queensland Police Service and to provide copies of that material to the legal representatives for the parties after first redacting any information that might identify the current residential address or employment details of the mother or her associates or that might identify the school attended by the child in the proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J
Contested parenting proceedings are listed before me for final hearing commencing on 6 March 2023. The proceedings concern a little boy, X, who is 8 years of age. Sadly, for X, his father has spent no time with him since about April 2020 and has not spoken to him since about June 2020, apart from a supervised video call conducted for the purposes of preparation of a family report on 18 May 2022.
The father’s application, which has been listed urgently, seeks to have weekly video or telephone calls with X, a video call on Christmas Day and on X’s birthday in 2023, and to spend time with him for one day every second weekend. Sensibly, given the admissions made by the father about his conduct towards the mother in the past, he does not press anything other than a video call or telephone call on Christmas Day and X’s birthday.
background
By way of background, I note that Mr Ressel (“the father”) is 44 years of age and describes himself as self-employed. Ms Morath (“the mother”) is 35 years of age and employed as a manager. The mother and father were in a relationship from 2013 until early 2020. They were never married. They have one child, X born in 2014 (“the child”).
The mother has since re-partnered and has another son.
The child lives with his mother and as earlier noted has not spent any time with the father since April 2020.
The father is highly critical of the mother and accuses her of making up allegations of family violence as part of her strategy to exclude him from the child’s life. There is a final protection order in place, which was made without admissions by the father, in late 2020 and it will remain in place until late 2025.
While the father maintains his belief that he has been effectively set up by the mother and her lawyers, he admits that he has committed some serious offences against the mother for which he pleaded guilty in early 2022. The charges against him were numerous for which he was sentenced to imprisonment. The father was already in prison at the time of his guilty plea and was immediately released on parole having served several months on remand.
During the family report interviews, the father acknowledged that he had done the wrong thing by harassing and threatening the mother and her partner, but justified his behaviour as resulting from his frustration as a father being denied contact with his son. The father contended to Ms J, the report writer, that the mother had “deliberately provoked his angry behaviour”.
The father informed the report writer that after serving several months (in prison) he knew that he was stupid to do what he did to the mother. He described his mental health at the time of interview with Ms J as “very low”.
The child told Ms J that his parents did not live together because “they fighted all the time” and he said he missed his father and estimated this feeling at 8/10. He said he would like to spend some time with his father and suggested three hours. If he had a magic wand the child said he would wish for his dad to come back.
During the family report interviews, the father was observed while he engaged with the child via a video call for almost 20 minutes. I note that the father contends it was closer to 40 minutes.
Ms J noted that the father spoke to the child lovingly and assured him that he loved him several times during the call. In her opinion, the father “mostly managed the call extremely well”. In her observation, the child became restless after the first 5 minutes although he remained relatively calm for the first 10 minutes of the conversation. After about 15 minutes, the child began to make silly noises and laughed loudly and strangely and when the report writer suggested the call might soon come to an end, the father initially responded that he would like to talk for longer, “up to a day”, but agreed to bring the call to a close. After the call, Ms J noted that the child’s behaviour changed significantly. He returned to the waiting area where his mother was seated, paced crazily making strange noises, and thrust both of his hands on the glass screen at the reception two or three times, with quite some force, frightening the receptionist who was seated behind the screen. The mother was noted to be able to calmly and skilfully respond to the child’s behaviour by encouraging him to breathe the way his psychologist had taught him. The child slowly calmed down.
Ms J noted that the child has had several significant personal stressors and challenges in his short life, including the loss of his previous family structure and time with his father, and the grief associated with this, the need to adjust to having a step-father and baby brother in his life and the associated loss of his mother’s time. Additionally, Ms J noted the child’s professed dislike of school. Ms J opined:
94. In my assessment, the ease with which [the child] spoke about his father's importance to him strongly suggests that [the mother] has not spoken about [the father] in a negative way in [the child’s] presence, and as she stated, has kept [the father] alive in [the child’s] mind, as his father, and an important part of his family.
95. While I appreciate [the child’s] assertion that he wishes to have his father return to his life, and believe he is likely to miss him, I do not believe he has the emotional maturity to consider the various risks that his father has posed to the safety of his mother and her loved ones, and to him remaining in his mother's care in Australia. Additionally, I believe [the child] is unable to consider the potential negative impact of his exposure to his father's inappropriate behaviour towards his mother and step-father, on him. Therefore while I believe the court needs to consider [the child’s] connection with his father and the fact that he misses him, I do not believe the court should place a high degree of weight on his wishes.
risks identified
The risks identified by the family report writer, and in the material more generally, relate to the risk to the child of exposure to conflict and family violence. The father may have every reason to be frustrated with the mother but he needs to focus on himself and what he can do differently in the future. Unfortunately, even during this hearing the father was unable to contain his frustration and agitation. He presents as very angry with everyone, not just the mother, and as I observed during the hearing, that may be entirely understandable, but it does not excuse or justify the angry responses that he persists in conveying even to the mother’s lawyer and the independent children’s lawyer (“ICL”).
The father has written abusive emails to the mother’s lawyer and the ICL as recently as 14 December 2022 when, in response to receiving the ICL’s case outline, the father told her to keep her opinions to herself and instructed her never refer to the child’s mother’s “lover” as his step-dad. The father told the ICL to “get out of my and my son’s life”.
On 14 November 2022, the father sent an email to the mother’s lawyer in which he said among other things to “stop being a cold heartless professional liar” and called him a “cold heartless prick”. The email also contained what may well be interpreted as threats in that he said, among other things, that “if I lose my son that will be the last straw … so think very carefully ok Harry [being the first name of the mother’s solicitor] and everyone else that thinks I did wrong by my son, steals my son from me. Last straw … come to some reasonable agreements and conditions, otherwise it is all on you! Have a wonderful day cold heartless liars!!!”
On 24 November 2022, the father sent an email to the case manager at the Court expressing his pleasure that the previous family report writer had resigned and urging the mother’s lawyer to do likewise.
The father has an alleged history of threatening to harm the mother and those close to her and of abducting the child. The father has allegedly sent the mother hundreds of messages containing threats and abuse.
The risk identified on behalf of the mother and the ICL concern the impact of a reintroduction of the father into the child’s life, even if limited to two phone calls, when the orders being sought at trial by the mother are for there to be no time or communication; a position supported by the ICL in the event the father is found to pose an unacceptable risk of harm to the child.
The child was impacted by the video call in May 2022. That may have been because he realised how much he missed his father and could not understand why he did not see him. It may have been for other reasons e.g. bringing back memories of the conflict to which he was exposed when his parents were together. The child certainly seemed to be distressed.
The other reason for opposing even the limited contact proposed by the father is that the father may not be able to contain himself and may say something to the child by way of threat which cannot be, in effect, unsaid. Finally, the other risk identified is the impact of such communication on the mother. The mother describes considerable anxiety about the child perhaps unknowingly saying something that might alert the father to her whereabouts. The mother also has to deal with the aftermath of the communication between the father and the child as she did in May 2022.
Applicable principles
In any consideration of what parenting order is proper, even on an interim basis, Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) applies and sets out the objects, principles and matters that must be considered when determining what ‘parenting order’ is proper,[1] but such consideration will focus in particular on issues that will be determinative at an interim hearing. [2] The Court is not required to make findings of fact on every factual dispute raised by the parties.[3] The paramount issue for the Court is to determine what is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” on each and every factual dispute.[4]
[1] See: Family Law Act 1975 (Cth) s 65D.
[2] Goode & Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637 (“Banks & Banks”).
[3]Baghti & Baghti [2015] FamCAFC 71.
[4] M & M (1988) 166 CLR 69 at 76.
As the Full Court of the Family Court of Australia (“the Full Court”) observed in Banks & Banks[5] at 80,116:
48. … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. …
49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(Emphasis in original)
[5] (2015) FLC 93-637.
Conclusion
I am of the view that to reintroduce the father to the child’s life when a final hearing is imminent, and when a possible order may be that the father not spend time with or communicate with the child, seems ill advised as it will put the child through what may be a very confusing and grief provoking event in speaking to his father to only have that discontinue after a final hearing.
The father will have his opportunity at the final trial to address how the Court could be satisfied that he has developed insight into the impact of his own behaviour on others and most importantly his son. At this time, I cannot be satisfied that it is in the child’s best interests to recommence communication with the father when ultimately an order may be made for future contact not to occur.
I have also been asked to facilitate documents produced by the Queensland Police Service to be redacted to remove all identifying information about the mother and child before being made available to the father. I note that there is no opposition to my so doing.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 19 December 2022
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