Reynard and Blair

[2014] FCCA 1699

FEDERAL CIRCUIT COURT OF AUSTRALIA

REYNARD & BLAIR [2014] FCCA 1699

Catchwords:
FAMILY LAW  ̶  Whether children have been subjected to family violence and abuse by father  ̶  whether children have been alienated from father by maternal family  ̶  whether children’s wishes are soundly based.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CC, 60CA, 65DA

Applicant: MR REYNARD

Respondent: MS BLAIR

File Number: DGC 764 of 2011

Judgment of: Judge Phipps

Hearing dates: 11 & 12 March 2014

Date of Last Submission: 12 March 2014

Delivered at: Dandenong

Delivered on: 1 August 2014

REPRESENTATION

Counsel for the Applicant: Ms Ben-Simon

Solicitors for the Applicant: Frid & Associates

The Second Respondent: Appearing on their own behalf

Counsel for the Independent Children’s Lawyer: Ms Jenkins

Solicitors for the Independent Children’s Lawyer: CE Family Lawyers

ORDERS

1. That the respondent maternal aunt have sole parental responsibility for the children X born (omitted) 1999, Y born (omitted) 2000 and Z born (omitted) 2003.

2. That the children live with the respondent maternal aunt.

3. That the children spend time and communicate with the applicant father as agreed with the respondent maternal aunt and in accordance with the children’s wishes.

4. That the order appointing the Independent Children’s Lawyer is discharged.

5. That otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 764 of 2011

MR REYNARD

Applicant

And

MS BLAIR

Respondent

REASONS FOR JUDGMENT

1. The applicant and the respondent are the father and maternal aunt of the children X born (omitted) 1999, Y born (omitted) 2000 and Z born (omitted) 2003.  The children’s mother died on 6 June 2011.

2. The father commenced the proceeding on 16 March 2011 applying for an order that the children live with him.  This was after the mother and the father had separated on 28 February 2011.  The mother was the respondent to these proceedings.  The maternal aunt became the respondent by an order of Judge O’Sullivan made 15 June 2011.

3. At the time the order was made on 15 June 2011 the children were living with the maternal aunt and her husband, and have remained living with them ever since.  They have spent time with their father on four occasions since then, two at a supervised contact centre and Y and Z saw their father once when he attended at Y’s football match.

4. The father’s proposal is that there be an order that the children live with him.  The maternal aunt, unrepresented at the hearing, did not want to participate other than by making herself available for cross examination.  She says she will abide by the court orders although she supports the Independent Children’s Lawyer’s proposal.  The Independent Children’s Lawyer proposes the children remain living with the maternal aunt.

5. The significant issues are the children’s wishes, whether the maternal family, particularly the maternal aunt, have alienated the children from the father and whether the father can provide for the children’s needs.

6. The mother and father married in (country omitted) in 1995 and moved to Australia later that year.  The mother was diagnosed with cancer when she was pregnant with Z.  She was in remission for three years but her condition deteriorated in 2011.

7. Separation occurred on 28 February 2011 when police attended at the residence and obtained a Family Violence Intervention Order against the father which named the mother and the children as protected persons.  The intervention order was made on 3 March 2011 for 12 months.  It did not prevent the father from living in the family home but he moved out because the mother refused to let him return.  The maternal grandparents began assisting the mother with the care of the children.

8. The father alleged that this incident came about when the wife slapped or hit him and he responded by slapping her two or three times.

9. The mother did not file an affidavit prior to her death.  The police report says that the mother said the argument started over ongoing issues in the relationship.  This issues were that the father was not working and did not assist the mother with the running of the household.  The report says that the mother slapped the father once in the back of the neck and the father retaliated by slapping the mother across the face 2 or 3 times in front of the children.  The report says that the mother appeared to be in a fragile and emotional state due to her illness.  The children have been interviewed by child protection workers and family consultants.  The police report is consistent with the statements of the children, although the slap by the mother may have been only a push.

10. On 22 March 2011 interim orders were made by consent for the children to spend time with the father from 10.00am to 5.00pm each Sunday.  The father saw the children in accordance with these orders until 1 May 2011.

11. The following Sunday, 8 May 2011, was Mother’s Day.  The mother was in hospital.  The father says that the children called him from the maternal grandparent’s house and said that they did not want to see him the following Sunday as it was Mother’s Day and they wanted to visit their mother in hospital.  He says he told them he would take the children to hospital to visit their mother.  He says that on the morning of Sunday 8 May 2011 the maternal grandmother called him and said the children would not be spending time with him.  He said that the court orders provided that he collect the children and intended to do so.  When he attended to collect the children the maternal grandparents, the maternal aunt and the children were there.

12. The maternal aunt’s position about this day was that the children wanted to see their mother on Mother’s Day.  It was almost certainly going to be her last Mother’s Day and so the children were not made available to the father and were taken to see their mother in hospital.  She proposed to the father that the children spend time with him on the Saturday rather than the Sunday but the father did not accept.

13. The father, when cross-examined, was unable to see, or at least would not concede, that his proposal that he take the children to see their mother on Mother’s Day was not in the children’s best interests.  It was put to him that the last time he and the mother had been together they had argued and he had slapped her 2 to 3 times across the face, he had been removed from the home by police and the children had seen it all.  It is clear from the maternal aunt’s evidence that the mother did not want to see the father.  Had the father taken the children to see the mother on Mother’s Day 2011, assuming they were prepared to go with him, the children would have had an unpleasant experience.  They might not have seen their mother because she may have refused to see the father.  There may have been an unpleasant scene at the hospital.

14. The Child Protection Service had previously been involved with the children.  The maternal family did not make the children available to spend time with the father after that and a reasonable inference is that this was because of the Child Protection Service involvement.  The maternal aunt says this is the case.

15. On 22 March 2011 Judge O’Sullivan adjourned the application to 12 May 2011 and ordered that the parties attend an appointment with a family consultant on 12 May 2011. The order was made pursuant to s.11F of the Family Law Act 1975 (Cth).

16. The family consultant who conducted the appointment gave an oral report to the court that day.  The mother was in hospital but represented by counsel.  Judge O’Sullivan suspended the order of 23 March 2011 and ordered that the children live with the mother and spend time with the father as agreed between the mother and/or the maternal aunt or the maternal grandparents.  He ordered that the transcript of the Family Consultants report be provided to the parties and the Department of Human Services and requested that the Department intervene in the proceedings.

17. On 15 June, 2011 Judge O’Sullivan ordered that the maternal aunt be substituted as respondent, that the children live with the maternal aunt, that the parties enrol the children with a grief counsellor nominated by the Department of Human Services and the time between the children and the father be as recommended by the grief counsellor.

18. The children attended Mr M.  There is no affidavit from Mr M but Ms D’s family report contains this paragraph:

    The children began attending Mr M (Psychologist) for grief and loss counselling.  Mr M provided a treatment report dated 30 August, 2011 in which he detailed several disclosures made by the children during sessions regarding alleged physical and verbal abuse towards them by their father and other allegations regarding his abuse of alcohol.  Mr M did not support the children spending time with their father as he was concerned there would be a severe traumatic emotional impact based on the children’s disclosures of abuse.)

19. The parties attended a conference with a Family Consultant on 11 November 2011.  On 16 November 2011 Judge O’Sullivan ordered that the father be permitted to contact the children’s grief counsellor as to the progress of the children, that the question of whether the counsellor consult with the father should be at the counsellors discretion and that the applicant and respondent make application for supervised contact between the father and the children at a contact centre nominated by the Independent Children’s Lawyer.

20. The children spent time with the father at Family Life Children's Contact Centre (omitted) on two occasions 4 November 2012 and 16 November 2012 and attended on 30 November 2012 but did not spend time with the father.  The Centre’s report is annexed to an affidavit by the Centre’s coordinator.  The report shows that on 4 November 2012 when the maternal aunt arrived with the children the workers introduced themselves and spoke to the three children about how they were feeling.  X indicated that he was feeling all right but that he didn’t want to go through.  The maternal aunt interjected with “None of them wants to go through but they have to”.  The children saw their father for two hours and the visit went quite well.

21. On the second occasion, 16 November 2012, the visit was shortened to an hour at the children’s request.  On the third occasion, 30 November 2012, X told the worker at the Centre that they did not want to see their father.  The worker attempted to encourage them.  When she asked the maternal aunt what she thought the maternal aunt responded that “It’s only been two visits: I think they should go through”.  A little later the maternal aunt said to all three children “I think you should go through and see him and then you can see how you feel after that”.  The worker observed that the children were becoming upset and explained to the aunt that she would not be asking the children to go through.  They did not see their father and there was no attempt at a further occasion.  The Centre withdrew the service since the children had told its workers they did not want to see their father.

22. On 20 March 2013 Judge O’Sullivan ordered that the father and the children attend a therapeutic counsellor as nominated by the Independent Children’s Lawyer and that the children and father spend time and communicate as recommended by the therapeutic counsellor.  His Honour ordered the preparation of a family report, subsequently prepared by Ms D.  An earlier report was prepared by Dr H.

23. Ms D’s report was released on 15 July 2013.  It included a recommendation that the father be permitted to attend the children’s sporting activities.  The father’s solicitors sent the maternal aunt’s solicitor a letter in late July 2013 requesting that the father attend Y’s football game.  The aunt says that because of the late notice she did not respond to her solicitor before the father arrived unannounced at the football ground in early August 2013.  She was surprised but encouraged Z to kick a football with his father which he did.  The father approached Y and a fair summary of what occurred is that he did not want to talk to his father.  An affidavit filed by the maternal uncle, who was not available for cross examination, alleges that the father’s breath smelt of alcohol.

24. The father and the children attended the counsellor, Mr S from Lifeworks.  He arranged two meetings between the children and the father, one just before Christmas 2013 in one in January 2014.  All three children attended in December 2013 and X and Z in January 2014.  The first occasion was about 3½ hours the second occasion all day.  The father acknowledges that at the January 2014 meeting he spoke to the children about them living with him.  The maternal aunt says that when they returned they were upset that the father had spoken to them in such a way and said that they did not want to see him again.

25. After that the father sent an SMS message asking if they wanted to meet for X’s birthday.  The response from X was that he couldn’t come, he was having friends over for his birthday, he was going away for the weekend and he decided that he did not want to see his father any more.  He said in the message “This is my decision and I’ve made it and that’s it”.  Since then the children have not seen the father.

26. Mr S, as part of the process he was undertaking, spoke to the father about arranging a meeting between the father, the aunt and Mr S.  The father said he would not attend a meeting with the aunt.  The father says he has continued to see Mr S since then.

27. The three children were interviewed by child protection workers on 20 May 2011.  Both X and Y described the father as violent and drinking a lot.  They describe being hit by the father.  X described the incident on 28 February 2011 when all three children were present.  He says that his mother touched his father on the neck, hardly touched him and his father jumped up and slapped his mother three times in the face.

28. Specific incidents put to the father in cross examination were denied by him.  He admitted slapping the mother on 28 February and he admitted hitting Y on the bottom because he stole chocolate at school.

29. Two family reports were prepared, one by Dr H, who was not available for cross examination, and the other by Ms D who was cross-examined at the hearing.

30. It is not necessary to set out in detail what is in either report.  Ms D’s  opinion is summarised in the early part of her oral evidence.  She said that it was very clear to her that the children’s views were consistent with what they had said to the previous report writer.  They were really saying that they wanted to remain living with their maternal aunt.  They were very positive about the care they were receiving from their aunty and uncle.  They felt that the quality of care they received was different from life when they were living with their parents.  Ms D said they spoke about not having enough to eat when they lived with their parents and that issue was addressed with their maternal aunt and uncle.  They were having opportunities to go away on holidays.  Ms D said it was very clear that they did not want to change the living arrangements.

31. As to spending time with the father she said it was very clear there was a lot of resistance about spending time with their father and so Ms D’s view was any time spent with their father had to be supported by some counselling.

32. Ms D considered that any time spent with the father should be conditional upon him not discussing living arrangements with them.  The fact that he had Ms D said flags that the father lacks insight and emotional reflective capacity about where the children are and he is not able to place their needs and feelings ahead of his own desire to have them back.

33. Ms D regards the father’s proposal that the children come back to him almost immediately as totally unrealistic.  She said she could not see the two older boys being part of that and the younger boy was going to be guided by his older brothers.

34. Ms D said that X, at 15, could stick up for himself.  If he doesn’t want to speak with his dad nobody can make him and the same with Y.  She said that with Z she would be concerned about his father having direct communication with Z given how the father had approached the whole issue and she thought the communication with Z should be screened.  She said she thought that the father needed some therapy to understand how to approach the issue.

35. She added that the father had not turned his mind to what school the children would go to save that they would go to a local school.  He had not visited a school and he struggled to name a school for the boys.  She said this in the context of describing the father’s proposal as unrealistic.

36. Fundamental to the father’s case is that the maternal aunt and the maternal grandparents have alienated the children from him, and that the allegations against him that he was an alcoholic and violent and did not care for his family are false.

37. I do not accept the father’s case.  The maternal aunt filed affidavits and was cross-examined.  She dislikes the father and has ever since her sister married him.  She says she was not aware of the father’s behaviour in the home until told by her sister shortly before her sister’s death.  She believes what her sister has told her and so believes that the children were badly treated by the father.

38. The maternal aunt acknowledges that at the time of the mother’s death she could have handled things with the children better.  The father did not attend the mother’s funeral.  The aunt says that was the mother’s wish.  The father was not told that the mother had died.  The aunt says that the children were told the father was not there because their mother did not wish him to be there.  She acknowledges now that she did not handle the situation well but she was grieving her sister’s death.  At around about the same time she told the children that the father in an affidavit denied any violence.  Again she acknowledges now that she should not have, but again says that she was in a very difficult situation, her sister had died, she was grieving for her sister and she had to care for the three boys whose mother had just died.

39. Apart from these two instances I accept that the maternal aunt has cooperated with child protection workers, the Independent Children’s Lawyer and the orders of this court which have attempted to establish a relationship between the father and the children and have the children spend time with the father.  The maternal aunt gave evidence and she said that this was what she had done.  The other evidence shows that that is so.  She encouraged, indeed more than encouraged the children to see their father at the Family Life Contact Centre.  She has ensured that the children have attended the counsellors that have been arranged by Child Protection Service workers and the Independent Children’s lawyer.  She has cared for the children as their very positive description of their lives now compared to their previous lives given to Ms D shows.  I accept that the maternal aunt has the children’s best interests at heart.  I accept that she believes they should see their father if that is possible.  An indication of her honesty is her frankness in stating her dislike of the father and acknowledging mistakes made at the time of the children’s mother’s death.  I accept that she is sincere in wanting the best for the children and I accept that she is a credible witness.

40. The children have consistently said that their father abused them and their mother, drank to excess and there was often insufficient food in the home.  The evidence I have shows they have said so to child protection workers, both family report writers and the counsellor Mr M, all independent and professional.  The maternal aunt says the children’s mother told her the same and so have the children.  I accept the maternal aunt as a credible witness.

1. Except for two instances, the father denies all the allegations against him.  The weight of evidence is very much against his denials.  I do not accept what he says.  He may not be deliberately telling untruths; it may be that he believes in his perception of what happened.

2. There is one specific example of this.  Ms D reports that when the children attended for interviews they did not want to see their father and her assessment was that they should not.  A significant part of the father’s case was that he claimed that the maternal aunt did not bring the children to Ms D’s office to meet with him on the occasion when this was scheduled.  Ms D’s evidence shows that that is wrong.  She conducted her initial interviews and observations on the same day.  She would have observed the children with the father but they did not want to see him.  The children attended on a later occasion but Ms D was clear why this was done.  This was so that there could be a joint interview of the children with Ms D and the Independent Children’s Lawyer.  On that occasion the children were brought to the interview by the maternal grandmother because the maternal aunt was not available, but that was of no consequence because only the children were wanted for the interview.  Somehow the father in his own mind has turned this into a refusal or failure by the aunt to bring the children to Ms D’s office to meet with him.

3. The children’s description of their father’s behaviour explains why they do not want to see him. For the purpose of the s.60CC best interests considerations I accept that the children’s views are soundly based.

4. Independently of what the children have said about their father’s behaviour, generally events at the time of separation and up to the middle of that year when their mother died illustrate why they have the view of their father they have.  They saw their father slap their mother on the face and saw their father removed by the police.  The father introduced his friend Ms V to the three boys shortly after the separation on 28 February 2011.  Whatever term the father used in introducing her to the boys they saw her as the father’s girlfriend.  The father has no understanding of how that might have affected the boys.

5. The father then wanted to take the boys to see the mother in hospital on Mother’s Day.  He saw nothing wrong with this.  He apparently had no understanding of how the boys might feel since the last time they had seen their parents together their father had slapped their mother on the face and then the father had been removed from the home by police.

6. Affidavits by both Ms V and her daughter were filed and Ms V was cross-examined briefly.  They both described the father as a person quite the opposite to the one described by the children.  It may well be that to them the father is a likeable and caring person.  The father and Ms V are now in a relationship but not living together.  Their evidence makes no difference to the conclusion I have reached about the boys’ views of the father being soundly based.

7. Ms D interviewed the children in July 2013 and in her report she says that the two older children said that they did not want to see their father but would go if they had to.  Z did express some desire to see his father.  Since then they have and the results are described above.  The events since she prepared the report were taken into account by Ms D in her oral evidence and I have described her conclusion.

8. This evidence on these findings has to be considered in the context of the relevant provisions of the Family Law Act 1975 (Cth). The presumption contained in s.65DA that it is in the best interests of the children that parents have equal shared parental responsibility may not apply in this case because the maternal aunt is not a parent. If it does apply the presumption is rebutted because there are reasonable grounds to believe that there has been family violence or abuse of the children.

9. Section 60B describes the objects and principles of the children’s provisions of the Family Law Act 1975 (Cth) and s.60CA provides that the best interests of the children is the paramount consideration in making children’s orders. S.60CC sets out the best interests considerations.

10. The first of the primary best interests considerations is the benefit to the children of a meaningful relationship with both parents.  Since the mother’s death in June 2011 orders of this court have attempted to have the children have a meaningful relationship with the father.  None of the regimes attempted have been successful.  The last, the children spending time with the father facilitated by Mr S, failed wholly or at least partly because of the father’s action and lack of action.  On the last occasion in January 2014 he spoke to the children about living with him showing a complete lack of insight into the children’s wants and feelings.  The children then said they no longer wanted to see him and have not seen him.  Mr S wanted a meeting between him and the father and the maternal aunt but the father refused.

11. Both family report writers consider that if the children could have a relationship with their father it would benefit them.  I have concluded that court orders in this case cannot do that.

12. The second of the primary considerations is the need to protect the children from the risk of family violence and abuse.  Given the findings I have made I cannot be satisfied that if I made an order that the children live with the father they would not be at risk of further abuse by the father.

13. As to the first of the additional considerations, the views of the children, I have already made findings.  The children do not wish to see their father and their views are soundly based.

14. The second of the additional considerations is the children’s relationship with parents and other persons.  I accept the evidence which says that the children have an excellent relationship with their maternal aunt and uncle.  I accept that they are happy and well cared for with the maternal aunt and uncle.  They now do not have a relationship with their father.

15. The other additional best interest consideration of significance in this case is the ability of a parent and other persons to provide for the children’s needs including intellectual and emotional needs.  I consider the evidence shows that the father could not provide for the children’s basic needs of food shelter and clothing and certainly could not provide for their emotional needs.  Indeed, any attempt to force the children to live with their father would damage them emotionally.

16. The additional considerations of family violence and family violence orders are relevant.  I have already dealt with this part of the evidence.

17. The best interests considerations point overwhelmingly to the children living with the maternal aunt.  So far as time with the father is concerned I have concluded that it is not possible to make any order other than that they spend time and with their father in accordance with their wishes. Ms D’s conclusion is that the ages of X and Y mean that they will make their own decisions and that the assistance of a counsellor would be needed with Z.

18. Extensive attempts have been made to have the children spend time with their father with the assistance of counsellors.  They have not been successful, and the most recent failed substantially if not wholly because of the actions of the father.  Clearly if any further attempt with Z was possible an essential aspect would be that the father did not talk to Z about him living with the father. Ms D makes that clear.  The father’s actions in the past demonstrate that he is likely to talk to the children about them living with him if he had the chance  A court order would not stop him.

19. Once final orders are made the Independent Children’s Lawyer will not be available to organise a counsellor.  Apart from that I do not consider that it is in Z’s best interests to have him attend yet another counsellor.  I consider that Z attending another counsellor would be unlikely to result in Z spending time with his father on an enduring basis.

20. The conclusions about the father and his behaviour and attitude towards the children show that sole parental responsibility must be with the maternal aunt.  The father does not have the capacity to make decisions about the children’s care.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  1 August 2014