RILEY & FLAMEL - [2011] FMCAfam 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RILEY & FLAMEL

[2011] FMCAfam 361

FAMILY LAW – Parenting dispute – autistic five year old child has never met father – father with serious criminal record including serious assault of the mother – mother wholly opposed to child seeing father – recommendations of family consultant considered.

Family Law Act 1975, ss.60B, 60CC(2), 60CC(3)

Applicant:

MR RILEY

Respondent:

MS FLAMEL

File Number:

MLC 8475 of 2009

Judgment of:

Burchardt FM

Hearing date:

24 March 2011

Date of Last Submission:

24 March 2011

Delivered at:

Melbourne

Delivered on:

21 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr Cronin

Solicitors for the Applicant:

Not disclosed

Counsel for the Respondent:

Mr Cantwell

Solicitors for the Respondent:

Jeanne Gorman

ORDERS

The mother have sole parental responsibility for the child, [X] born in 2005.
The child live with the mother.
The father’s application be dismissed.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 8475 of 2009

MR RILEY

Applicant

And

MS FLAMEL

Respondent

REASONS FOR JUDGMENT

Introductory

This case is about the best interests of [X], who was born in 2005. [X] has lived all her life with her mother, the respondent in this proceeding, and has never met her father. She is autistic and her autism is moderately severe.
[X]’s father, Mr Riley, wants to spend time with her and to be a part of her life. He believes that, although it should be introduced gradually, this would be a benefit to her. The mother is adamantly opposed to any such contact, not least because she is, herself, very scared of the father.
For the reasons that follow, I think that [X]’s best interests will be served by not having her father introduced into her life.

The facts

The father was born in 1962 and the mother in 1979. Their relationship commenced, according to the father’s first affidavit, in 2002, but it is agreed that it finished in May 2005. On any view, it was a brief and troubled relationship.
The mother’s life has not been without its troubles. She has two older children, [Y], 12, and [Z], 14, who apparently live with her own mother following Department of Human Services (“DHS”) involvement. The true nature of the history regarding these children has not been revealed to the Court, not least because the mother refused to tell the family report writer, Mr S, anything about them.
The mother said at paragraph 2 of her affidavit filed on 7 March 2011:
“I have had difficulties in the past with my children from previous relationships and I am adamant that I will protect [X] from abuse and violent behaviour as occurred in those previous relationships.”
The mother makes very serious allegations of violence committed by the father during their 18 months or so relationship. These allegations are plainly, at least in large part, true. Following a violent assault on

29 August 2004, following which the police attended the parties’ former home and arrested Mr Riley in handcuffs, he was convicted on 21 July 2005 at the Sunshine Magistrates’ Court for reckless conduct endangering life, serious injury and unlawful assault on the mother; he was sentenced to an aggregate of six months’ imprisonment of which he served three months.
Subsequently, in 2005, the mother obtained a five-year intervention order against him. Her evidence before the Court was that she was unaware that this had expired in 2010 and that she is applying to extend it.
The mother was pregnant with [X] at the time of this assault. The father admits, as the mother alleges, that he occasioned damage to their former home by punching holes in the walls, although he says this arose out of frustration with the mother’s inappropriate conduct. He also admits throwing an orange at her.
It is quite clear that the mother’s assertions of the father’s violence are made out.
Following the intervention order, the parties had very little contact. The father had no contact whatever with [X]. To paraphrase his oral evidence in Court, he left it and did not bother. Thus matters remained until his application filed in this proceeding.
In his affidavit accompanying his initiating application the father said, inter alia:
“I recall an incident where the mother and I had a verbal dispute and the police charged me with assault. The police then applied for an intervention order against me on the mother’s behalf.”
This statement is, in my view, a wilfully dishonest misrepresentation of the events that emerged from the mother’s evidence and the police records.
The father’s affidavit went on to say:
“As deposed to above, I understand the difficulties that [X] might experience if she was to suddenly spend time with me on a regular basis.
I understand also that I have not had the opportunity to bond with my child.
I would propose that any time I have with [X] be on a graduated supervised basis until such time as [X] is comfortable enough to spend unsupervised time with me.”
The proceeding was characterised in its early phases by the difficulties of engaging the participation of the mother. Numerous attempts at service were made, some of which were clearly evaded by the mother, and in the ultimate a warrant for arrest had to be issued to compel her to participate. Thereafter she protracted the proceeding by a challenge to paternity, a challenge she ultimately withdrew through her counsel. At all times during all hearings of the matter the mother appeared to be in considerable fear of the father, notwithstanding that security was in Court.

The evidence and demeanour of the parties

The applicant, who was in the ultimate represented by counsel, gave evidence. He made a number of complaints of the mother’s parenting style in which he was highly critical of the mother, notwithstanding that his complaints were all based on hearsay evidence provided to him by third parties. He confirmed that he wanted to spend time with his daughter and that he would do any counselling that might be required to enable this to occur. He confirmed that he does not get on well with the mother. He has contacted the [Suburb P] Contact Centre where not only supervised time but counselling would be available.
As earlier indicated, he conceded that he had punched holes in the walls of their dwelling through frustration but denied that he had pointed a gun at her or been frequently violent. Nonetheless, he confirmed that he served three months for his assault in 2004 and he was additionally ordered to do 80 hours of community work. He conceded, as was inevitable given the subpoena material, that he had an extensive criminal history involving serious offences for violence.
He denied that it was he who had recently damaged the mother’s car and said words to the effect that she had plenty of lovers who would blow up her car for her. He confirmed he had a poor opinion of her. He also confirmed that he had not told the proposed contact centre at [Suburb P] the whole of his criminal record.
The mother gave evidence and, as I have already said, her whole demeanour was consistent with a vivid fear of the man who had previously assaulted her so severely. She confirmed that although her daughter has been diagnosed with autism, she is engaged in appropriate activities such as golf and swimming. She confirmed that she was going to seek to continue the intervention order.
The mother was adamant that she did not want the father in her life or her daughter’s life. She said that she would not undertake any counselling that might involve the father. She denied, as had been asserted by the father, that there had been any DHS involvement with respect to [X].
The first witness to be called, however, was the report writer,

Mr S. His evidence was compelling. The family report confirms (and there is no dispute as to this) that in November 2010 [X] was diagnosed with autism spectrum disorder, but that she is commencing her preparatory year at a mainstream school in 2011 (where the mother’s evidence is she is doing satisfactorily).
Mr S’s written report confirms that the mother was evasive when questioned about her two elder children, [Y] and [Z], and that the mother had informed him, as she subsequently informed the Court, of the father’s violence.
The father had confirmed to Mr S not only his extensive drink-driving history, but also his criminal record and the fact that he was dishonourably discharged from the army. The father revealed to

Mr S during the interview that he had a number of other children, including a 14-month-old child.
From information provided by Ms C, [occupation omitted] at [organisation omitted], it is plain that (see paragraph 20 of

Mr S’s report):
“Ms Flamel had a very problematic engagement with multiple professionals at this service and has more successfully engaged with a private speech therapist and consultant paediatrician towards the end of 2010. Ms C stated that [X] had a history of poor attendance at kindergarten until the Department of Human Services were engaged and were quite directive resulting in [X]’s attendance becoming more consistent. Ms C stated that Ms Flamel struggled greatly with accepting the severity of [X]’s very significant developmental issues, and also seemed to rely considerably on a male friend who is very involved in [X]’s care and offered great support in getting [X] to kindergarten.
Ms C stated that in November 2010 [X] was diagnosed with autism after a multi-discipline developmental assessment team carried out an assessment of her, making [X] eligible for integration aide when she commenced her schooling in 2011. Ms C further detailed that prior to the November 2010 developmental assessment [X] was diagnosed with a severe language disorder for both expressive and receptive language following a speech/language assessment of 14.9.10. It was also reported that [X]’s current paediatrician reported [X]’s presentation to be marked not only by marked expressive and receptive language delay but also disordered pragmatic communication skills, fine motor delay and some unusual behavioural/sensory patterns. [X] was further reported in the paediatrician’s report to have marked delay in her social/interactional skills including restricted play skills, all consistent with autism.”
Other professionals interviewed by Mr S by telephone suggest both that Ms Flamel is a somewhat inept parent, at least in terms of ensuring attendance at school and the like, and that the speech pathologist:
“…viewed [X] as a high needs child due to [X]’s multiple areas of marked developmental deficit.”
Mr S gave oral evidence consistent with his report. He additionally told the Court that he doubted the mother’s willingness to promote any relationship between the father and [X]. He confirmed that [X] is autistic, a child with high needs and with a significant disability. He said that it would be difficult to bring in a stranger and that there would still have been problems even if the parents were to get on better than they do. He described [X]’s condition as moderately severe.
He confirmed that in discussions with him, the father had nothing positive at all to say about the mother and was highly derogatory of her.
Mr S’s view was that the mother’s relationship with the child was the linchpin of security for her. He said that if the father remains divisive the child’s security with the mother would be reduced which would inevitably have bad effects upon the child. He said that the father would need skilled therapy to enable him to be positive about the mother. If such a situation was to be produced by therapy, the next step would be an extensive process of collaboration between the mother and father, and only then when that had been successfully achieved would he recommend contact between [X] and her father, which would need to be rigorously monitored.
Mr S was of the view that the father and mother were totally unable to cooperate and that even the provision of such things as birthday and Christmas cards would require professional assistance.
Mr S’s views rather were buttressed by his expertise. He is clearly a man with considerable expertise in matters to do with the autism spectrum. He obtained a clinical masters degree in [year omitted], was a psychiatrist at the [organisation omitted] for ten years, and spent two years in the practice of diagnosis at [organisation omitted].
Mr S stuck by the recommendations and matters set out in his report. His evidence was not the subject of material challenge, and his expertise is undoubted. Relevantly at paragraph 27 of his report,

Mr S wrote:
“Children with autism have an increased need for structure, routine, consistency and reliable nurturance. The central aspects of this disorder (a disorder in communication and social functioning) render their ability to interpret (make sense of) their world and make meaningful social/emotional connections within it very limited. It is therefore very difficult to mount an argument for a stranger coming into [X]’s life as likely to be beneficial for [X] in any way. In short she would likely fail to make sense of such a change in her life and have very limited communication and social skills to enable her to form a meaningful connection to that person. This is particularly so when considering [X]’s primary carer (her mother) who would almost certainly fail to promote such a new relationship for [X] with Mr Riley. Furthermore children with autism are very vulnerable to develop other emotionally and behaviourally based disorders (such as anxiety and problems of behaviour) over and above their developmental disorder when exposed to unnecessary change that they are unable to understand nor accommodate/adjust to appropriately. Indeed in a consideration of [X]’s best interests, and even if Mr Riley is [X]’s biological father, I view him coming into her life as likely to be far more disruptive than beneficial for [X], irrespective of capacity (or not) of Mr Riley to care for and positively nurture [X] consistently across time.”
At paragraph 28 of his report, Mr S wrote:
“I view [X] as a high needs child. I also view Ms Flamel as an emotional, vulnerable woman who will need to be case-managed to assist her to maintain a reliable and responsive support to [X]. I acknowledge that I do not have a full understanding of Ms Flamel’s past parenting history of which aspects are concerning. I however do not have any strong indication in the current assessment of Ms Flamel being a grossly inadequate or neglectful parent to [X]. Indeed for children with Autism parents often experience significant emotional reactions to such a diagnosis in their children of which one is commonly a denial (to varying degrees) of the practical deficiencies that their child experiences. I also note that Ms Flamel is now successfully engaged with a paediatrician and speech pathologist in the treatment and monitoring of [X]’s development, irrespective of Ms Flamel’s possible past difficulties in accepting professional help for [X].”
At paragraph 29, in formulating his recommendations, Mr S wrote:
“Even in the event that Mr Riley was proven by DNA testing to be the biological father of [X] I would be very doubtful that ongoing time for [X] with her biological father would be of great benefit to [X]. On the contrary, I believe that it is potentially more likely to be of greater risk to [X]’s emotional wellbeing when considering [X]’s developmental disorder in the context of her family functioning; specifically a vulnerable mother who has little vested in [X] having a relationship with Mr Riley irrespective of his status as biological father or not. Furthermore, [X]’s social and communication skills render her ability to form a close and meaningful bond with Mr Riley as likely to be limited.”
Although the report went on to say in the alternative that if the Court ordered time to be spent with the father it should be supervised, those comments should be approached in the light of the reservations he expressed in his oral evidence.

The application of the law

The Court is required to pay proper regard to the objects of Part VII of the Family Law Act 1975 (“the Act”) as set out in s.60B of the Act. All the matters set out in s.60B(1) are engaged in this case. In the circumstances I have already described, it is not necessary to do more than note that this is so and that the Court has due regard to those objects in assessing [X]’s best interests.
In determining what is in [X]’s best interests, the Court is obliged to have regard to the primary considerations set out in s.60CC(2) of the Act. Those are the benefit to the child of having a meaningful relationship with both her parents, and the need to protect her from physical or psychological harm, or being exposed to abuse, neglect or family violence.
Although these more generalised matters are considered in more detail below, it is sufficient to say for these purposes that the proposition that [X] would benefit from a meaningful relationship with her father must be approached with caution, bearing in mind his complete failure to seek to play a role in her life to date until the filing of his application in this case, and the very significant practical problems that would obtain in seeking to construct such, or encourage such a relationship in circumstances where the mother is so opposed to him. Such a development would also need to pay proper regard to the very serious history of family violence inflicted by the father on the mother and, in large part, denied or minimised by him.
I turn now to the additional considerations in s.60CC(3) of the Act.

Subsection 60CC(3)(a)

[X] has expressed no view about her father. She does not even know he exists. However, I am required to consider her maturity and level of understanding. As Mr S says, she is an autistic child with significant developmental delay. For the reasons he gives, the introduction of her father to her would be highly likely to be extremely distressing.

Subsection 60CC(3)(b)

[X] has no relationship with her father. She has a good relationship with her mother and her mother’s best friend, Mr N.

Subsection 60CC(3)(c)

Neither of these parents would, in my view, encourage a good relationship with the other. The mother has a very fixed view that she is scared (indeed terrified might be the better word) of the father and wants nothing to do with him. She is adamant that she will not participate in any steps to facilitate a relationship between [X] and her father. In my view that reluctance is, given the family violence inflicted on her by him, wholly understandable. Furthermore, the father’s constant denigration of the mother, both in his interview with Mr S and, indeed, in his evidence before the Court, makes it clear he would do nothing to promote the child’s relationship with her mother and, indeed, would be highly likely to undermine it which, as I have earlier indicated, according to Mr S would be very damaging for her.

Subsection 60CC(3)(d)

Any separation from her mother would inevitably be highly stressful for [X]. Even if introduced on a gradual basis at a contact centre, it would be very difficult.

Subsection 60CC(3)(e)

Here the practical problems are that the mother will do nothing whatever to promote the relationship with the father and the relationship cannot be established without such assistance.

Subsection 60CC(3)(f)

Despite some criticisms and reservations, I accept that the mother is a sufficiently competent parent, as Mr S says. Mr N is obviously also able to assist her in this regard, a matter I take from

Mr S’s unchallenged evidence in his report. The father, in my view, would be most unlikely to be able to care for [X] and, indeed, this is consistent and with his own application which seeks only a very gradual increase of time on a supervised basis.

Subsection 60CC(3)(g)

I have already dealt with [X]’s difficulties above. I have also dealt with the mother’s various difficulties sufficiently for these purposes. It is appropriate to repeat that the father has a serious criminal history about which his evidence displays little insight.

Subsection 60CC(3)(h)

I consider is not relevant.

Subsection 60CC(3)(i)

In the context of this case, this matter has already been dealt with above. I repeat that the father’s failure to take any steps to see his child for the first four years of her life speaks loudly about his attitude towards the responsibilities of parenthood.

Subsection 60CC(3)(j)

There has been considerable family violence of a significant order.

Subsection 60CC(3)(k)

The five-year intervention order has now expired and the mother is in the process of seeking a further one. The outcome of that proceeding is speculative.

Subsection 60CC(3)(l)

The orders I propose to make will be the least likely to lead to the institution of further proceedings.

Subsection 60CC(3)(m)

Any other relevant circumstance. Clearly the most relevant circumstance here is [X]’s autism. The evidence of Mr S which, as I repeat I entirely accept, is that that circumstance, combined with the father’s attitude to the mother and the mother’s attitude to the father, would make time spent by [X] with the father more probable than otherwise to be an extremely negative experience for her.

Conclusion

This is a distressing case. The prospect that a child should, in effect, never know her father is of a character that speaks for itself. Nonetheless, the evidence in this case points overwhelmingly to the conclusion that this is the outcome that is in [X]’s best interests. The father is a violent man who possesses little insight into his history and his violence. The mother, for all her faults, is an adequate mother but she is understandably terrified of the father. The idea that forcing the mother to have anything at all to do with the father would produce any results other than ones negative to [X] is, on the evidence before me, utterly unsustainable.
Furthermore, on the unchallenged evidence of Mr S, it would be disturbing and distressing for [X] to have her father introduced into her life.
Even if this was not the case, the matter faces insuperable difficulties of a practical nature. The mother, for the reasons given, simply will not at any stage cooperate with a process to introduce the father into [X]’s life.
Even before that, the father would need to undertake extensive counselling to produce in him a better attitude towards the mother. In the light of all the materials and having seen him give his evidence, I have no doubt that he would be quite unable at any stage to achieve such an outcome.
I accept the submissions of counsel for the mother that the first two steps that would be necessary, on Mr S’s evidence, to enable time even to be contemplated, namely the father undergoing counselling to ameliorate his view of the mother, and the mother thereafter cooperating in producing a situation where time might be contemplated, are never going to happen.
I note that Mr S’s view is that, even if the parties were cooperative, there would still be enormous difficulties with introducing the father into [X]’s life.
Although the result is clearly an extreme one, it is quite clear in all the circumstances that the order that is in [X]’s best interests is that she spends no time with her father whatsoever.
I will order accordingly that the father’s application be dismissed and that the orders sought by the mother be made.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 21 April 2011