Sachs & Massen (No 2)

[2023] FedCFamC2F 738

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sachs & Massen (No 2) [2023] FedCFamC2F 738

File number:	DNC 236 of 2017
Judgment of:	JUDGE YOUNG
Date of judgment:	31 May 2023
Catchwords:	FAMILY LAW – parenting application – where the mother has not seen the children for 10 years – where the mother says she was subjected to family violence by the father during their relationship – were the father does not support the children having a relationship with the mother – where the mother is an Aboriginal woman – where the mother has a history of drug and alcohol dependency – where the mother is seeking orders allowing to spend time with her – where the ICL supports the children spending time with the mother – where it is appropriate the orders sought by the ICL are made.
Legislation:	Family Law Act 1975 s60CC
Division:	Division 2 Family Law
Number of paragraphs:	38
Date of hearing:	31 May 2023
Place:	Darwin
Counsel for the Applicant:	Ms Wendtland
Solicitor for the Applicant:	Aboriginal & Torres Strait Islander Legal Service
Solicitor for the Respondent:	No Appearance
Counsel for the Independent Children's Lawyer:	Ms Romeo
Solicitor for the Independent Children's Lawyer:	Margaret Orwin Barristers & Solicitors

ORDERS

DNC 236 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MASSEN Applicant
AND:	MR SACHS Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE YOUNG
DATE OF ORDER:	31 MAY 2023

UPON NOTING THAT

The father filed a Notice of Discontinuance on the 11 May 2023.

THE COURT ORDERS THAT:

1.The children W born in 2009 and X born in 2010 shall live with the Father.

2.The children will spend time and communicate with the Mother as may be agreed between the parties. Failing agreement the mother may telephone the children every second Sunday at 6.30pm.

(a)The father is to provide the mother with a phone number she may contact the children on within seven (7) days of service of this order.

(b)The father shall facilitate and not interfere with the telephone calls with the mother.

(c)The mother may communicate with the children by post or email every two (2) months and the father shall ensure that the children have access to their email accounts to facilitate that communication.

3.After 12 months from these orders and on the condition the preceding orders have been complied with the children shall spend time with the mother at a children’s contact centre in the NT on at least two (2) occasions and the father shall do all things necessary to facilitate enrolment, provided the mother shall provide at least 28 days’ notice of her intention to have the children spend time with her pursuant to this order.

(a)in the event that the mother resides in the Northern Territory: in the Town B or Darwin regions, following the completion of three (3) visits at the contact centre, the children shall spend time with the mother in Darwin for one (1) weekend per calendar month, provided the mother provides the father at least 14 days’ notice.

(b)Changeover for the above time between the Mother and the children shall be effected by the mother collecting the children from their school at the commencement of time and returning the children to the paternal grandmother’s house at the conclusion of that time.

(c)The father may not approach nor attempt to communicate with the mother during any changeover event at any time.

4.The children shall be at liberty to communicate with the Mother by phone, email, text, direct message and video call at all reasonable times having regard for the children’s age and routine.

SPECIFIC ISSUES

5.That neither parent consume illicit drugs or alcohol in excess of the legal driving limit or allow the children to be in the presence of persons consuming illicit drugs or alcohol in excess of the legal driving limit.

6.That neither parent will physically discipline the children, nor allow any other person to do so.

7.That during the time the children are with either parent, that parent shall:

(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent; and

(b)Speak of the other parent respectfully; and

(c)Not denigrate or insult the other parent in the presence or hearing of the children; and

(d)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

8.Neither parent shall discuss these proceedings with the children.

9.Each parent shall keep the other parent informed of their emergency contact details to include email and telephone number.

10.The parents shall keep the other informed of the children’s doctors, health care and other treatment providers and by this order authorise those medical practitioners to provide each parent with information that they are lawfully able to provide about the children and this order shall serve as such authority to release that information.

11.Each parent shall inform the other as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and by this order authorise any treating medical practitioner to release the children’s medical information to the other parent.

12.Each parent shall keep the other parent informed of any day-care, school, educational facility or extra-curricular activity provider and authorise those providers to give such information that they are lawfully able to provide about the children to the other parent and the option to purchase school photographs and this order shall serve as such authority.

13.The Independent Children’s Lawyer arrange for a copy of these orders to be served on the father by personal service as soon as practicable.

14.The Independent Children’s Lawyer be discharged.

15.Each party share the costs of the Independent Children’s Lawyer as assessed by the Northern Territory Legal Aid Commission.

16.All extant applications be dismissed

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 Sachs & Massen (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

Judge Young

1. This is a parenting application concerning two children, W, who is 14 years old, and her sister, X, who is 13 years old.  Both children live with their father and do not spend any time with their mother. 

2. The background to the matter is as follows. The children have lived with their father and have not seen their mother, at least face-to-face, since 2013, which is a period of almost 10 years - that is, when W was 4 and X was 3 years old.  The mother in her affidavit material said that she was subjected to family violence by the father and that was a significant part of the reason why she left the relationship and was unable to effectively maintain a relationship with the children.  She lived in Town B for some years but in more recent times has relocated to City C in Queensland.  She has other, younger children.

3. I accept that there was a history of domestic violence perpetrated by the father against the mother during their relationship but there is no evidence, at least since the parties separated in 2013 for the last time, of any abuse of the mother by the father since.  The mother also admits to using illicit drugs between 2013 and 2018 when she says she stopped her use of that drug.  She also refers to a history of alcohol abuse and, indeed, it appears from the affidavit material of the mother that she has had mental health problems as well.  I would suspect that those matters have also been a significant contribution to her inability to maintain a relationship with the children over the years.

4. The father has not appeared today and filed a notice of discontinuance in respect of his response a couple of weeks ago on 11 May 2023.  The father is hostile to the mother and he refuses to accept that there is any benefit to the children in having any kind of relationship with their mother, let alone a meaningful relationship.  He has demonstrated that attitude consistently throughout the proceedings. 

5. The Child Impact Report of 17 December 2021 describes the lengths the father went to to attempt to control the interview process between the child expert and the children.  It was clear from that report that the children are subjected to great pressure by the father if they express any interest in not only a relationship with the mother but having any contact with her at all.  In the Child Impact Report of 17 December 2021 the children said that they did not wish to have any relationship with their mother.  That was after the Court had made orders permitting the mother to write to the children.

6. The children received those letters and W, in her interview, said that she had read one of them but did not want to open the second letter. However, I do not accept those views, certainly of W, and similar views have been expressed by X, are genuine or at least not the result of emotional pressure exercised by the father and his family.

7. Around about that time, the children made contact with the mother and that is outlined in the mother’s affidavit.  In any event, in about September 2021, that is, somewhat before that report and before, it would appear, the interview that I have referred to, the children made contact with their mother, or W, at least, made contact with her mother by Facebook and part of the communication, and I understand that this was not the only communication between the mother and the girls, is reproduced there.  It is clear, I think, from that message that W wished at least to know something of her mother and was apprehensive about her father finding out about her contacting her mother.

8. That apprehension seems to have been well justified because the father subsequently discovered that that communication had taken place and confiscated the telephones of the girls. There does not appear to have been any contact between the girls and their mother since then.  Throughout the proceedings, as I say, the father has made clear his hostility to the mother and his unwillingness to cooperate in any way with the processes of this Court. The most recent example of that is him filing a notice of discontinuance presumably in respect of a response document.

9. I should briefly refer to the orders that have been made prior to this.  Orders were made on an undefended basis on 22 October 2018 that the father have sole parental responsibility for the children and that the children live with the father.  The mother did not participate in those proceedings. That is the reason why it was made on an undefended basis and I have referred to what I consider to be the probable reasons for her failure to engage at that stage. 

10. In January 2021 the mother filed an initiating application essentially seeking orders that would permit the children to have a relationship with her.  An interim order was made on 7 May 2021 that the mother be permitted to write to the children.  The mother, it seems after some delay, did, in fact, write to the children, eliciting the response from W that I have referred to.

11. In August 2021 the mother’s then lawyer withdrew from proceedings and I was told that the mother had relocated to Queensland from Town B.  The child impact report that I have referred to was prepared on 17 December 2021 after W had received the letters and after the contact between W, or perhaps both girls, and their mother which resulted in the father confiscating their phones. As I have noted, on 11 May 2023 the father filed a discontinuance in relation to his response indicating, I believe, that he was not prepared to participate in any proceeding concerning his children.

12. As I see the case, there are two issues to be resolved.  The first issue is whether, given the mother’s history of illicit drug abuse, and I consider it likely dependency, that she is abstinent from illicit drugs.  There is the related issue of her admitted alcohol abuse.  In relation to her mental health issues, there is some evidence that she has sought and continues to seek professional assistance in relation to that.  The mother’s trial affidavit annexes the results of a hair follicle test which was ordered by the Court which shows that, at least in July 2022, there was no indication of any illicit drugs in the test of her hair.  Similarly, there are the results of two pathology reports following a carbohydrate deficient transferrin or CDT test for indications of alcohol abuse, and both tests conducted in February 2022 and June 2022 indicated normal levels of CDT. 

13. Given that material, I am prepared to accept that the first issue, that is, whether the mother is, should orders be made, able to consistently comply with the orders and carry through on her intention to develop a relationship with her children, is practicable and, on balance, I am satisfied that she is able to carry through with that despite the history of that not having been the case.

14. The second issue is whether any orders the Court makes, given the implacable hostility of the father to the children having a relationship with their mother are likely to be in the best interests of the children. 

15. I accept the submissions of Ms Romeo, the Independent Children's Lawyer, that that is a question to which there is no clear answer.  I am satisfied that the father is willing to apply pressure on the children to prevent them contacting their mother, and when I say, “pressure”, I am referring to emotional pressure at the very least and, if need be, a willingness to confiscate their telephones and otherwise restrict their ability to have a relationship with their mother.  I am satisfied that that attitude is one shared, probably, by the father’s family – in other words, for these children, a situation of intolerable emotional pressure not to seek or have any relationship with their mother. 

16. In those circumstances, the obvious question is whether orders intended to result in the children spending time with their mother and which are not likely to be complied with and which would only be addressed by commencement of contravention proceedings by the mother, are likely to achieve anything useful for these children.  Eventually, in discussion with Ms Romeo today, she persuaded me that the orders sought by the mother, with some qualifications, should at least be attempted. 

17. Part of her reasoning would appear to be that while there is a risk that the children would be pressured out of seeking any relationship with their mother or being seen to seek any relationship with their mother, that as these children grow older, and they are 14 and 13, that there arises the possibility, at least, of the children being able to withstand pressure from their father and/or the father’s family not to seek any relationship or contact with their mother and that, as they grow older, they are likely to be less susceptible to that pressure. 

18. I accept those submissions and while I have very significant reservations about making the orders proposed by the mother and supported, with qualifications, by the ICL, I consider that orders of the Court, despite the risks that I have referred to, are appropriate to, perhaps in the longer term, indicate to these children that their mother has not abandoned them and that she wishes to have a relationship with them.

19. I consider that there is also a factor in the Aboriginality of the children.  The mother is an Aboriginal person.  The father is not. 

20. I consider that the Aboriginality of the children is a further important factor in deciding whether or not orders ought to be made, primarily because I consider that without any orders whatsoever, there is probably no prospect of the children developing any relationship with their mother before they turn 18 and, perhaps, after that.  If orders are made, even though they may not be successfully implemented, I consider that the mere making of orders will, in the long term, indicate to these children that their mother, an Aboriginal woman, was, despite her own difficulties and vulnerabilities, determined to maintain or establish or renew a relationship with her daughters and I consider that is important for the long term psychological health of these children and their identity. 

21. Turning to the legislative pathway in Part VII of the Act, in determining the best interests of the children, the Court must consider the matters set out in subsection (2) and (3) of section 60CC. The primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents and subject to the weightier consideration of the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

22. While I consider that the father’s controlling behaviour manifested in these proceedings constitutes family violence for the purpose of the Act, it is family violence directed towards the daughters.  I am keenly aware of the controlling aspect of the father’s behaviour and, indeed, for the reasons I have already addressed, it is the subject of significant reservation in my mind about whether orders ought to be made.  However, on balance, I consider that the risk is one that needs to be taken. 

23. I consider that there is a benefit to both children in having a meaningful relationship with their mother.  What that relationship might consist of is, perhaps, unclear.  This might be a case where it is simply enough that for the purposes of identity that the children know who their mother is, know that she has not abandoned them and that they may seek a relationship with her when they are older and free from their father’s controlling influence, if that is the case.  The additional considerations in subsection (3) – the children have expressed views, but those views are equivocal, and I do not accept that the children, in the absence of the father’s obvious hostility to them having a relationship with their mother, would be necessarily opposed to having any contact with her.  I do not accept the views expressed in 2021 to the child expert were genuine or, at least, not the subject of pressure. 

24. In regard to (b) – the nature of the relationship of the children with their parents – the children have been brought up by their father, largely, and are clearly close to him and the paternal family.  The relationship of the children with their mother has been interrupted, at times, perhaps, severed, for the reasons that I have already addressed.  

25. In relation to (c) - the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues – there was no real evidence that the mother, in recent years, has endeavoured to do that and, indeed, there is an order that the father have sole parental responsibility, and I do not propose to disturb that.

1. I have already referred to the difficulties that have ensued from the attempts at spending time or communicating between the children and their mother.

2. In relation to (ca), there is no evidence about that. 

3. In relation to (d), there will be no change in the children’s circumstances.

4. In relation to (e), the practical difficulty and expense of the children spending time and communicating with their mother has already been addressed. 

5. In relation to (f) - the capacity of each of the children’s parents - there are very serious questions about the capacity of both parents in this case.  I have referred to the mother’s history of use of illicit drugs and of alcohol and her mental health problems.  The mother has clearly had trouble, or been unable, in fact, to maintain a relationship with the children over many years and she is, it would appear, highly vulnerable.  The capacity of the father, while he has, it would appear, properly cared for the children at least as far as their physical requirements are concerned, in the sense that they have been fed, housed and schooled, his vehement hostility to the children having a relationship with their mother is, in my view, unbalanced and is unlikely to be in the best interests of the children. 

6. I do not propose to say anything about (g), other than what I have said.

7. In relation to (h), the children are Aboriginal children because their mother is an Aboriginal person. 

8. There is no real evidence before me about what (i) might mean in the context of this case, that is, of the children’s right to enjoy their Aboriginal or Torres Strait Islander culture.  I believe, in the circumstances of this case, the content of that right is likely to be a right to know the maternal family and to communicate with the maternal family.

9. I do not propose to say anything about (i).

10. In relation to (j), I accept there has been a history of family violence and I have referred to that.

11. In relation to (k), there is, I understand, no current family violence order in place. 

12. In relation to (l), I consider that the orders I propose to make do run the risk of there being further proceedings, and I accept generally those further proceedings are likely to be deleterious to the children but I am not satisfied that risk means that the orders I propose to make should not be made. There is no other fact or circumstance that I consider relevant.

13. I propose to make orders largely in the form proposed by the mother but qualified by the proposal of the Independent Children's Lawyer.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Young.

Associate:

Dated:       31 May 2023