Rudolf & Meicher

[2007] FamCA 1094

FAMILY COURT OF AUSTRALIA

RUDOLF  & MEICHER [2007] FamCA 1094

FAMILY LAW – CHILDREN – With whom a child lives – Orders. 

Family Law Act 1975 (Cth)

APPLICANT: MS RUDOLF

RESPONDENT: MR MEICHER

INDEPENDENT CHILDREN’S LAWYER: MS LOVELL-JONES

FILE NUMBER: BRF 16019 of 2006

DATE DELIVERED: 5 September 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blond of Counsel appeared for the Applicant Mother

SOLICITORS FOR THE APPLICANT: Somerville Laundry Lomax, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Duane of Counsel appeared by telephone link for the Respondent Father

SOLICITORS FOR THE RESPONDENT: Trenches Solicitors

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

NSW Legal Aid Commission

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1.The child, S born … May 1997, live with the Mother.

2.The Mother to have sole parental responsibility for the long term and day to day care, welfare and development of the child S.

3.There is to be no communication between the Father and the child S in any form.

4.There is to be no communication between the child S and her siblings, N born … January 1992 and T born … August 1995 in any form.

5.The Father is not to change the child T’s schooling from the K State School unless he has specific permission from the Court other than when he completes primary school.

6.The Father to deliver S’s clothes, school texts, school equipment and other possessions to the office of the Independent Children’s Lawyer by 4.00 pm

6 September 2007.

7.The proceedings be adjourned to a date to be fixed for the handing down of final judgment.

IT IS ORDERED:

8.Pursuant to Section 65DA(2) and Section 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 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 NOTED that publication of this judgment under the pseudonym Rudolf & Meicher is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 16019 of 2006

MS RUDOLF

Applicant

And

MR MEICHER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1.Ms Rudolf, the applicant mother, and Mr Meicher, the respondent father, are the natural parents of three children, N, born … January 1992, she is 15 years of age, T, born … August 1995 and he is now 12, and S, born on … May 1997, currently 10.

2.The hearing of children's issues and property settlement proceeded over five days in the Family Court Lismore in May this year.  Each party was legally represented by Counsel and the Court was assisted by the appointment of an Independent Children's Lawyer to represent separately the interests of the children.  The Independent Children's Lawyer was also represented by Counsel.

Orders Sought by Mother

3.In a further amended application for final orders filed on 2 April 2007 the mother sought orders that the children, T and S, live with her and that those children not spend time with the father for a period of up to six months during which time they undertake counselling as recommended by the Independent Children's Lawyer and during which time the father comply with order 4 – I infer that really should have been a reference to order 5.  However, the mother's further amended application provided that after the period of six months the children spend time with the father as agreed by the parties, and failing agreement, from after school Thursday to before school Monday each alternate weekend.  The mother sought a further order that before the children spend time with the father he undertake a parenting course approved by the Independent Children's Lawyer to the satisfaction of the Independent Children's Lawyer.

Orders Sought by Father

4.In response to an application for final orders filed 2 March 2006 the father sought orders that the mother's application be dismissed and that all three children reside with him.  He further sought orders that the mother have such contact with N and T as may be agreed or otherwise ordered by the Court, with the child S to reside weekabout with the parties.  The father proposed that there be joint long-term responsibility.  In an amended response to an application for final orders filed 21 March 2007 the father sought orders – I will just summarise those in abbreviated form – that the children live with him and that the mother spend time with the three children as may be agreed between the parties.  Suffice to say that notwithstanding what transpired at the trial, as I am informed, the mother has spent no time with the children since the conclusion of this hearing in May this year, notwithstanding the proposal in the father's own orders that the children spend time with their mother as may be agreed between them.

5.At the conclusion of the hearing the solicitors for the father forwarded amended minutes of orders sought by the father.  This was on 30 May, after the hearing.  Those orders provided (1) that the children live with the father, that N spend time with and communicate with the mother as agreed between her and the mother, that the parties and said children forthwith attending counselling with a family consultant and continue to attend such counselling and any other family therapy recommended for as long as so required by the family consultant, that following counselling commencing T and S spend time with the mother at such times and on such conditions as recommended by the family consultant, and that if after a period of three months T and S are not spending substantial and significant periods of time with the mother in accordance with orders agreed to between the parties, then the Independent Children's Lawyer shall obtain a joint expert psychological report on the parties and the children and the parties shall do all acts and things necessary and comply with all such directions and requirements to enable the joint expert psychological report to be prepared.  That following the release of the joint experts' report the proceedings be relisted before myself and that the parties forthwith attend an appropriate post-separation parenting program as recommended by the family consultant.

6.At the completion of the hearing the father signed a document which had been prepared, as I understood the situation, by the Independent Children's Lawyer and was subsequently amended by the father.  That document became exhibit 29.  That document is in the following terms:

(1)That the children are not at risk of physical or sexual abuse with their mother.

(2)That the mother has not sexually, physically or otherwise abused the children or any one of them.

(3)That the father has either consciously or unconsciously alienated the children from the mother, although the father contends he is not the sole cause.

(4)The father agrees to attend the Lismore sub registry of the Family Court counselling service for the purpose of having explained to the children in his presence:

(i)the findings of the Court;

(ii)his expressed desire for the children to have a relationship with their mother;

(iii)the father agrees to attend this session with photos of all of the family, including the mother, prior to separation;

(iv)continue to bring the children for counselling at the direction of the counsellor. 

7.As I have noted, on 4 June this year after the completion of the hearing I was asked to make interim consent orders in Chambers that the family consultant in Lismore consult with the parties and the children to assist the parties to implement the orders, various other orders, that the parties and the children forthwith attend upon the family consultant pursuant to the provisions under s.65L of the Act and continue to attend upon the family consultant for so long as so required by the family consultant.  There was a third order, that as soon as reasonably practicable the father shall attend upon the family consultant's rooms at the Court with the children.  At this first meeting the family consultant will have a copy of exhibit 29, being the statement prepared by the Independent Children's Lawyer and amended by the father and signed by him.  Exhibit 29 will assist the family consultant and the father to explain to the children the father's expressed desire that the children have a positive relationship with their mother. 

8.I hasten to add these were consent orders. 

9.The children are to spend time with their mother initially in the family consultant's room at the Court as soon as is reasonably practicable following order 2.  Following the children spending time with the mother and the family consultant, the children T and S spend time with the mother at such times and on such conditions as recommended by the family consultant, that N spend time and communicate with the mother as agreed between the parents and the family consultant in accordance with N's wishes.  That the parties forthwith attend an appropriate post-separation parenting program as recommended by the family consultant. 

10.I observe that the concessions made by the father, that the allegations involving physical or sexual abuse by the mother have no substance, mean I do not have to consider the large volume of evidence relating to such allegations.  Even if the father had not made those concessions at the conclusion of the five days of trial, he would have been, in my view, the only one in the courtroom holding to the view that the mother had engaged in physical or sexual abuse of her children.

11.As I have indicated, I have delayed delivering reasons for judgment, in part, to allow the counselling to take place pursuant to the handwritten document signed by the father on the final day of the hearing.  Ms D has attempted such counselling and has prepared a report which is dated 8 August.  I turn to consider the terms of that report.

12.At page 4 of the report in paragraph (k) she says:

“The consultant asked the father if he still agreed with the four statements outlined in exhibit 29.  The father does not agree to any of the four statements and asserted that he was not aware of what he was signing at the time.  The father asserts that he cannot read English.  In relation to point 4, the father stated that the children were vehemently opposed to attending any counselling session but that he would bring them to the next session.  The father stated that the children do not need counselling and that the mother needs to find a way to get close to them.  He also stated that the solution was for the mother to simply phone him "to see the kids".  During this session the father emphasised that it was the mother's choice to leave the relationship and he coupled this statement with comments about her relationship with the children.  He stated, "It's important for the kids to have a relationship with their mother, but she pushes and pushes and tries to destroy everything they do.” 

13.I reject any suggestion the father was not aware of the contents of exhibit 29 to which I have made reference.  At his own insistence the document was specifically amended.  He had a competent solicitor and barrister acting for him.  There was the Independent Children's Lawyer.  There were comments that I made from the Bench.  It was as clear as crystal that he perfectly well knew the contents of what he was signing. 

14.The report writer says in paragraph (l):

“The father agreed that he had spoken to the children about the recent hearing of the dispute and that [T] and [N] were totally opposed to spending any time with their mother.  The father stated the best outcome would be for the mother to "leave the kids alone for some time", meaning years.  The father rejected the recommendation regarding a post-separation course as specified in the order, angrily stating that he was a good parent and that he did not need it.  The father would not agree to bring [T] and [S] to separate appointments to be reintroduced to their mother and stated that while he would bring all three at the next appointment with the ICL, he would not put [T] through any more stress.  The father noted that when he told the children about the coming appointment with the ICL it destroyed them and in an intense and animated fashion stated, "I need to defend my kids.”

15.Paragraph (m) of her report:

“During the session with the father, the ICL and the three children, the father again confirmed that he did not agree with statements contained in exhibit 29.  When it was pointed out that he had later signed the consent orders that reflected those statements the father again asserted that he did not understand what he was signing.” 

16.I pause there to note I categorically reject the father's claims.  The report writer continues:

“[N] presented as being very vocal about not wanting to see her mother and not wanting her siblings to see her either.  [T] similarly expressed that he did not want to attend further sessions or see his mother.  The father was asked what his response to this statement was, given his commitment to the Court to facilitate this process.  The father then told [T] that despite the child's legitimate feelings and the mother's past violence towards him, which the father emphasised and gave examples of, he wanted the child to attend the next session and be reintroduced to his mother.  It is assessed that this response amounts to a highly charged mixed message and is an example of the father's strong opposition to the mother having a continuing relationship with the children.  During this session [S] sat between her siblings, at times leaning on her sister, and appeared to be untroubled by the emotional storm surrounding her.”  

17.Paragraph (n):

“When the father arrived with the children on 7 August 2007 the mother was waiting in the waiting area.  On seeing her the father pulled both children back into the hallway and did not enter the section until the mother was positioned in the play room.  The father's behaviour with the children was to comfort them and he maintained a sad expression throughout as if they were being subjected to a painful experience.  The children were each seen separately with their mother.” 

18.In paragraphs (o), (p) and (q) the report writer deals with her observations relating to T.  In relation to paragraph(r) she says:

“On meeting with her mother [S] immediately stated, "When I lived with you I never achieved nothing."  She also accused her mother of pinching and hurting her, and then quickly asked if she could leave the room.  It is assessed that [S] was delivering scripted lines.  [S] was less strident than her brother and soon refused to look at her mother.  Both children accused their mother of being racist and referred to her calling the chef Asian.  The mother tried to explain that she did not know his name and so referred to him as an Asian man.  She indicated that she was simply describing him to the father rather than being derogatory or racist.  It is assessed that this accusation made vehemently by both children again reflects the father's opinion.” 

19.Paragraph (s):

“[S] stated that she did not want her mother coming to her school.”

20.Paragraph (t):

“The mother reacted to the children's accusations with patience and expressed affection and caring towards them.” 

21.Paragraphs (u) and (v) record statements made by S.  Paragraph (v):

“It is assessed that[S]'s comments reflect both the father's comments shared with the children and the merging of the father's feelings about being rejected with the children's feelings of loss at their parents separation.  The father dramatically states that he will defend his children against an abusive parent.  However, it is most likely the case that he has enlisted his children in the defence of his own hurt feelings at being rejected, as reflected by [S]'s comments to her mother.  It is also assessed that this is a conscious process on the father's behalf rather than an unconscious one.” 

22.Paragraph (w):

“It is assessed that the father will not support the children having a continuing relationship with their mother.  It is also assessed that the father's involvement of the children in this rejection of their mother amounts to extreme emotional abuse and is likely to have a negative impact on their future character development and their ability to form healthy realistic relationships in the future.” 

23.I made exactly the same observations at the conclusion of the hearing.  I fully accept the observations of Ms D and the contents of her report generally.  I accept the force of the recommendations she makes and the validity of the reasoning process in making such recommendations. 

24.On today's date I propose to put in place interim orders.  The main reason for only making the orders on an interim basis is I am not in a position to deliver reasons in detail analysing all the evidence before the Court.  I will only make an order in relation to S.  I accept the recommendation of Ms D that the damage is done to N and T and it would place the children in an invidious, if not impossible, position to force them to see their mother.  The father must ultimately bear responsibility for this and it will impact on these children for the rest of their days. 

25.A further reason for making the interim orders is because the terms of the family report of 8 August view the matter as urgent that interim orders be put in place. 

26.I turn briefly to consider the provisions that I am required to consider pursuant to s.60CC of the legislation.  Subsection (2) of that section provides for the Court to consider the primary considerations being:

a)the benefit to the child of having a meaningful relationship with both of the child's parents. 

27.The view that I have formed is if S is left in the care of her father she will not have a relationship with her mother.  The father will systematically set out to alienate S from her mother, just as he has done with N and T.  If S is placed in the mother's care, as I propose to do under the orders I am about to make, she will not have a meaningful relationship with her father in the short term as I intend to follow the recommendations of Ms D that there be no communication between S on the one hand and her father and siblings on the other for a period of at least three months.  I am reluctant to separate the children, but it is a matter for which the father must ultimately accept responsibility.  The advantage of placing S in her mother's care is I am satisfied the mother will not seek to alienate the child from her father. 

28.The second matter I have to consider under subsection (2) is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  I repeat paragraph (w) that Ms D, a very experienced family consultant, assesses the child S is being subjected to extreme emotional abuse at the hands of her father.  That view accords with the view I formed at the conclusion of the evidence and after hearing the submissions and reading the submissions in this matter.  The attempts by the Independent Children's Lawyer to try counselling, whilst well-intended, were, in my view, never likely to succeed given my assessment of the father's personality.

29.In the course of her evidence the mother spoke of the father "cutting off family and friends with whom he had had a falling out".  She spoke of the cutting off being absolute in its terms.  I found the mother's account of these incidents convincing.  Such a pattern of behaviour is certainly consistent with the behaviour of the father towards the mother since she moved out of the former matrimonial home.

30.Under the terms of subsection (3) I have to consider various other factors.  The first factor is any view of the child expressed by her.  I accept S is 10 years of age.  Whilst she has made statements critical of her mother, it is likely such statements arise as a result of the ongoing denigration of her mother that she has been subjected to in the father's household.  I am confident that if placed in the mother's care she will adapt to that environment, but it will take time and great sensitivity and counselling, which the mother has deposed to in an affidavit filed today that she will readily seek.  The mother may need to remove the child for a period of time from the current environment.  What I am proposing is that the child will stay at the M State School.  It is a matter for the mother, she can move the child.  But T is at K.  I will hear submissions on this aspect, but I propose making an order requiring the father to keep T at K state school and he is not to be moved unless he has the specific permission of the Court, other than of course when he completes his primary school and has to go to high school. 

31.I agree with the recommendation of Ms D that there should be a termination of communication between S, on the one hand, and her father and siblings, on the other.  To allow such communication to take place in the short term is to run the risk the child S will be subjected to intolerable pressure to return to the father's household. 

32.I have to consider the nature of the relationship of the child with each of the child's parents and with other persons.  I accept Ms D's conclusion that to allow the child to remain in her father's care is to subject her to extreme emotional abuse. 

33.The next matter that I have to consider is the willingness and the ability of the parents to foster the child's relationship.  I am satisfied the mother would be more than prepared to facilitate a relationship between the child and both her parents and the siblings.  Unfortunately, the father is totally unable to do so.  The only remedy, unfortunately, is to remove the youngest child from such an environment, as recommended by Ms D.  I accept Ms D's assessment that the older children are too enmeshed in their father's views to consider removing them from his household. 

34.I have to consider the likely effect of any changes in the child's circumstances.  I expect S will miss her father and her brother and sister greatly.  The consultant has factored this in when making her recommendations. 

35.I have to consider the practical difficulty and expense of contact.  As I indicated, I do not propose to make any order for S to spend time with her father and so this subsection is not relevant. 

36.I also do not propose to make any order for S to have any contact with her siblings. I only make that order on an interim basis. 

37.I have to consider the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs.  I am strongly of the view the child's emotional needs are best met in the mother's household for the reasons expounded in Ms D’s report.  I was not surprised for one moment by the terms of her report when it arrived.  It is regrettable that the father has reneged on his undertakings set out in exhibit 29, set out in the consent orders that he signed.  He spoke with a forked tongue.  He was quite misleading and I believe deliberately so.  I was not surprised to find the father going out and doing exactly the opposite to what he promised to do.

38.I have to consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.  I would assess the father to be of a very controlling nature.  I would assess him to be extremely narcissistic.  I do not make that observation in any diagnostic sense, simply a descriptive sense, but I will be adverting to that aspect when I deliver detailed reasons and make final orders.

39.The harm the father has done to the older children, as I have indicated, is irreparable.  One would not know where to start to repair the damage.  I cautioned I believe at the end of the hearing not only will these children have difficulty forming relationships when they get older, many of them turn to drugs to conceal the pain.  If that should come to pass, the father will have to bear the guilt and responsibility for what he has done. 

40.I will not make detailed findings at this stage, but I would assess it is a strong possibility that the allegations of sexual abuse of the children as claimed by the father fall into the malicious category.

41.When delivering a final determination I will make detailed findings on all aspects of the evidence where I find myself in a position to do so.  At the present time I will simply put in place an order until further order S live with her mother.  There is to be no communication of any kind whatsoever, by phone, mail, personal contact, between the father and S.  I will review that aspect before delivering a final determination.  If I feel necessary I will require an assessment by Ms D of the relationship between mother and daughter to see whether S would be in a position to spend time with her siblings. 

42.For a similar reason, I do not propose to allow any communication between S, on the one hand, and N and T, on the other.  The mother is to have sole short-term and long-term care, welfare and responsibility in relation to S.  I am deliberately not making any orders in relation to N and T.  I am not going to have the father leave the courtroom and say, "The judge awarded your care to me."  The father simply does not deserve it.  There will be no orders.  The mother knows the lie of the land.  She will be unable to have the children but there may be a wind shift, there may be some change in the future; it is so difficult to predict.  

43.The mother can decide what school the child attends, but I will hear submissions on this.  I propose to make an order, as I have indicated, that T stay at K state school. 

44.The only other matter I wish to advert to is that in the course of submissions by Mr Blond he made the following submissions:  He said:

“It is respectfully submitted that although the focus of these submissions is directed towards the children's issues, the actions and cross-examination of the father with respect to property issues is directly relevant to the Court's assessment of his credibility, personality and insight and ability to responsibly parent the three children.”

The view that I take is that a litigant's case is judged by every aspect of the evidence presented to the Court.  A judge is required to have regard to the affidavit evidence, the oral evidence, the demeanour of the parties and their witnesses, the documentary evidence and the opinions of any experts.  Judges are entitled to take into account a litigant's behaviour both prior to and after the commencement of proceedings as reflected in the admissible evidence before the Court.

45.Property settlement issues were settled by consent orders on the fourth day of the hearing in this matter.  Notwithstanding the fact that this aspect of the matter was settled, I do propose to consider all aspects of the evidence surrounding property settlement issues as illuminating other evidence before the Court.    

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate

Date:  5 September 2007