Sarraff and Sarraff (No 2)

[2009] FamCA 1247

FAMILY COURT OF AUSTRALIA

SARRAFF & SARRAFF (NO. 2) [2009] FamCA 1247

FAMILY LAW – CHILDREN – Boys 10 & 12 – Time with father – Limited time extended – Significant problems emerged – Time suspended pending further hearing

APPLICANT: Ms Sarraff

RESPONDENT: Mr Sarraff

INDEPENDENT CHILDREN’S LAWYER: Mark Bucknall

FILE NUMBER: BRC 13858 Of 2007

DATE DELIVERED: 2 December 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 2 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Selfridge

SOLICITOR FOR THE APPLICANT: Gill & Lane

THE RESPONDENT: Appeared on his own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr M Bucknall,
Bucknall Family Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children, B born … April 1997 and M born … June 1999, live with the Mother.

2. That the Mother have sole parental responsibility for the children.

3. That all previous orders for the children to spend time and communicate with their Father be discharged.

4. That the Father be permitted to communicate with the children by letter in writing on the proviso that all letters be read first by the Independent Children’s Lawyer and deemed appropriate by the Independent Children’s Lawyer before being forwarded to the children and, in the event the Independent Children’s Lawyer is discharged, then the letters to be read first by the Family Consultant, subject to Order 8 herein.

5. That the Mother forthwith arrange for a referral from a General Practitioner for the children to be referred to the CYMHS at R Community Centre for counselling.

6. That all previous orders and undertakings restricting contact between Mr A and the Mother, and Mr A and the children be discharged.

IT IS FURTHER ORDERED

1. That the Father undertake such psychotherapy as may be recommended from time to time by the Independent Children’s Lawyer in accordance with the terms of paragraph 5 of the recommendations contained in the Family Consultant’s report dated 25 November 2009.

2. That pursuant to Section 65L of the Family Law Act, a Family Consultant be appointed to assist the parties in compliance with these orders.

3. That the Application for Final Orders in relation to children and property matters, and the Contravention Application filed 22 October 2009 be referred to a Registrar for further management.

4. That the Application in a Case filed by the Father on 13 October 2009 be dismissed.

5. That pursuant to s65DA(2) and s62B, 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 Sarraff & Sarraff is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 13858 of 2007

MS SARRAFF

Applicant Mother

And

MR SARRAFF

Respondent Father

REASONS FOR JUDGMENT

EX TEMPORE

1. I have been involved with this matter for the best part of 12 months and I bring to the task in this case almost 19 years of experience on the Bench, and it is a case that has troubled me since it first arrived on my desk.  I have made observations in the past about worrying aspects of the case and I do not propose to labour those points again. 

2. I observe that one of the most troubling aspects of the case is that, despite what might have been recently suggested by the father, I do accept that the mother loves her children and would not wantonly cause them any harm.  As I have said earlier, I also accept that the father is equally passionate in his love and commitment for the children and would not set out to knowingly hurt his sons.  Nevertheless, in the period since separation in January of 2007, these children have been greatly hurt and greatly harmed.

3. The matter has been before me in February of 2009 and again in August of 2009.  On each occasion, the parents expressed to me their abject distress about the harm that was being caused to their children and their concerns about the future and their desperation to each try to improve their children’s lot.  Each time the parents were able to say all of the right things and identify the problems and how they might be improved.  They each appeared entirely bona fide in their wishes that things could be improved and in their statements that they would use their best endeavours to provide their children with a better outcome.  Sadly, despite those statements and the parents’ efforts, matters have not improved. 

4. The August hearing continued for three days and at that time, with the assistance of the Independent Children’s Lawyer, the parties entered into some arrangements which were designed to provide a starting point, as it were.  They were designed to release some of the pressure on these boys and to enhance the father’s time and relationship with the boys, with a view of building upon it. 

5. The indications are from each of the parties that, in the initial period after the August hearing, some progress was being made.  Relations between the parties appeared to improve, in that there was at least some capacity to enter into workable discussions.  The mother has always acknowledged the children’s love of their father and wish to have a relationship with him and more time with him and, to her credit, without any compulsion, she entered into arrangements which saw the children’s time with their father gradually increased. 

6. I should indicate that the initial starting point agreed upon was that there should be supervised contact and the mother voluntarily entered into arrangements which provided that the father could spend time with the children unsupervised, to the extent that eventually she voluntarily agreed to the boys spending overnights with the father.  The father says he was entirely grateful for those concessions and that he and the boys thoroughly enjoyed their time together. 

7. The material filed since August indicates that, unfortunately, there has been, from that promising start, a complete breakdown in the relationship between the parties, and a very worrying deterioration in the boys’ presentation, with the boys taking high risks in terms of running away and taking themselves, or putting themselves, in a position to be taken to the Police and to the Department of Children’s Services.  Even more worryingly, they have been threatening self-harm and even talking about wishing to be dead.  It is very difficult to fully appreciate the terrible place in which these boys must have found themselves.

8. Included in the material from the mother and some of the statements made by the father, is the fact that these children felt the need to, amongst other things, seriously denigrate their own mother and say entirely inappropriate and hurtful things about their mother.  The boys’ statements and complaints bear no resemblance to reality.  Whatever might be the mother’s failings as a person and a parent, the type of vitriolic attacks that these two very young children have embarked upon would not only have been extremely hurtful to the mother, but are themselves, in my view, indicative of some serious, underlying problems in these boys’ development.

9. The situation is such that the mother took the decision that it was no longer in her children’s best interests to allow them to have the extended period with their father.  The mother attributed some of the reasons for the deterioration in the boys’ presentation to inappropriate influences from the father, to pressure from the father, to his abuse of the licence to become more familiar with the mother and his attendance upon the mother’s household.  Of course, the father fundamentally disagrees with that assessment.

10. The mother concluded that it was best for the children if the parties reverted back to the Court ordered supervised contact.  The mother tells the Court that the father refused to resume supervised contact.  The father tells the Court that the boys did not want to return to the contact centre.  The end result was that the father has not had contact at the contact centre, and the boys have now not seen their father for some weeks.

11. The father says that the boys would be taking great harm from the separation from their father.  The mother says that the boys have greatly settled since they have been relieved of what she perceives to be the burdens associated with the less than positive times that they have with their father. 

12. The matter was brought forward by me for review as a consequence of my retirement in a matter of days.  Unfortunately, I have to allocate the matter to another Judicial officer.  I need to determine what orders should be made between now and the further hearing of the matter.

13. Mr P provided an updated report and I will refer to aspects of that in a moment, but before I do so, I need to deal with the father’s application to have Mr P removed as the Family Consultant.  That application is based upon a proposition that Mr P is biased against him.  I gave the father the opportunity to cross-examine Mr P on that point.  I should indicate that the father represents himself and I appreciate that that presents a challenge to him, as it does to most litigants in person, and I make proper allowance for those matters.

14. In his questions of Mr P and in his submissions to me, the father unfortunately has demonstrated some fundamental misunderstandings about the role of the Family Consultant.  Underlying his complaints are propositions that Mr P has failed to record some complaints made by the father from time to time, has failed to record what the father regarded as concessions made by the mother from time to time, and that he has failed to take up the option of having the children reduce their preferences and concerns to writing.  And, of course, perhaps most fundamentally of all, he submits that Mr P’s recommendations from time to time, and in particular his recommendations now that contact should be suspended, are inappropriate and yet further evidence of his bias.

15. As to the technical complaints about failure to record matters, I have already made my views known to the father and the fact that he misunderstands the purpose of the exercise. It perhaps can be taken no further than to acknowledge that, if Family Consultants were required to record every statement by everyone interviewed, we would indeed have 200-page reports.  A mere recording of what is said is not what the Court is looking for.  The Court is looking for analysis in reports presented in ways which provide an overview, rather than a verbatim account of things.

16. As to the father’s concern about the recommendations, I understand the father’s position and his grievances, and whether or not I agree with Mr P’s recommendation, he has satisfied me that, in making a recommendation, he has considered all of the matters he needs to consider.  I have not been able to detect in his written reports or in his answers to questions any actual bias.  I do not perceive that Mr P has an agenda, other than to complete the difficult tasks often assigned to Family Consultants.  I do not uphold the application to have Mr P disqualified.  That does not mean that I do or must accept what Mr P has to recommend.  I am obliged to take into account his recommendations, but I take responsibility for any decision that is made in this case, having considered all of the matters that are before me.

17. To return, then, to Mr P’s most recent report.  Everything I have had to say to date and everything Mr P has had to say in his last report needs to be considered in the context of his earlier reports and of the matters that unfolded in Court on 6 February.  At that time, the parties gave evidence and Mr P gave evidence and was cross-examined.  The further vital context is what emerged from the proceedings between 4 and 6 August.  Finally, account needs to also be taken of the comments made by myself both on 6 February and during the course of the August proceedings.

18. I am not yet in a position to make determinations about questions of fact.  I am not in a position to make findings consistent with the mother’s account in this case, nor am I able to accept that the father’s version of contentious issues is the truth.  Unfortunately, that will now be for another Judge on another day.

19. Like Mr P, it is appropriate that, in the meantime, I look for patterns, that I take an overview of the matter and do the best I can on an interim basis for these children.

20. I agree that the parties have effectively identified the parameters of this case.  I accept that the August experiment now stands as a failed one and that, unfortunately, it is not viable to put in place flexible and uncertain arrangements which have already failed on previous occasions.  The options I am presented with are those recommended by the Independent Children’s Lawyer and sought by the mother, which would result in a suspension of contact between the children and their father, and those put forward by the father asking for an order for change of residence and the placement of the children with him.

21. One of the patterns that I say I have observed in this case is that, whilst I am convinced that the children love each of their parents and need each of their parents, there is a pattern of behaviour with these children which is entirely inconsistent with that overview.  As I have said earlier, it includes quite shocking and disproportionate criticism of their mother.  I believe she is basically a good parent, as the father is basically a good parent.  The father is never subjected to vile abuse and criticism by his boys.  The mother is roundly abused, notwithstanding that she is basically a decent person.  One is left to wonder why that would be.  Why these boys would feel empowered, or feel it was appropriate to hurt and criticise one of the two people they love most and need most?  It is, in my view, unlikely that the children would behave in such an extreme way because of what their mother did to them unless she was not a basically good person or a good mother;  unless she was an abusive parent or the like. 

22. The children seem to have a fundamentally sound relationship with their father, which suggests to me that they are allowed to have a healthy relationship with their father.  There are entirely unhealthy aspects of their relationship with their mother.  It causes me to query whether they feel allowed at all times to have a healthy relationship with their mother.  I cannot imagine that the mother would be discouraging her children from having a healthy relationship with her.

23. There is a recurring theme in this case.  From time to time, these boys feel the need to hurt their mother and behave in inappropriate ways.  Another theme that emerges from this case is the boys’ entirely disproportionate antipathy for, and fear of, Mr A. Again, I cannot imagine that the mother is encouraging the boys to have an unhealthy attitude towards Mr A.  Indeed, one would suspect the contrary.  It is difficult to understand where that comes from.  I have heard the evidence about what Mr A was meant to have done, and it was to give one of the children a wedgy.  What has happened since that time, as I say, is bizarre and entirely disproportionate.

24. I have had the advantage of observing Mr A as a witness, observing him cross-examined, and of making my own assessments.  I have the advantage of Mr P’s assessment of Mr A.

25. All of those things serve to confirm, in my view, that there is some other agenda at play in terms of the children’s reaction to the prospect of even sighting Mr A.

26. In her material, the mother describes serious matters which I might briefly touch upon.  I make reference to paragraphs 53 and 136 of her affidavit of evidence-in-chief and to the father’s responses in paragraphs 35 and 69 of his affidavit.  The children are recorded as having said things about their mother such as, “You’re a fucking bitch,” or “Mum, you abandoned me,” and the father’s response was to simply observe that that is how the boys think and that is what they say.  It is to be noted that those types of statements were made when these children were much younger.

27. Apparently, in the father’s presence, the boys refer to their mother by her first name, “C”.

28. When the boys were in their father’s care, the mother rang B on his birthday and was unable to reach him.  M rang back on B’s birthday, so remarkably B apparently did not even want to speak to his mother on his birthday.  M’s message to his mother was as follows, “Hello, [C].  [B] does not want to speak to you.”  The father dealt with that without denial in paragraph 83 of his affidavit.

29. There are further examples that I will not labour which appear in paragraphs 223 to 231 of the mother’s affidavit as responded to in paragraphs 93 to 95 of the father’s affidavit. 

30. In paragraph 248 of the mother’s affidavit, there is set out the incident when M rang his mother and said, “I don’t want to come anywhere near you.  You are a fucking bitch and you always mention his name.”  And the father was to say in response, “I am not responsible for everything the boys say to their mother.  Does the mother not think that her behaviour may in some way contribute to what the boys say?”

31. The material is littered with examples like those, and they are part of the pattern and just a very, very, small example of what the boys do and say in relation to their mother from time to time. 

32. In his reports dated 20 November 2008 and 15 May 2009, and in his oral evidence on the first day, on 6 February 2009, there appear tangible examples of concerns identified by Mr P which are capable of providing a further basis for the mother’s stated concerns.

33. I also have had regard to the reservations identified by Dr K in his report. 

34. What has been observed in the period since the August trial is sadly more of the same, where these children feel empowered to behave in a similar way towards their mother. 

35. From that background, I then turn finally to the report of Mr P dated 25 November 2009.  A large part of the evidence today has concentrated on aspects of Mr P’s evidence and he has been tested and cross-examined in relation to that.  In particular, I refer to paragraphs 11 to 13, and paragraphs 34 to 36, and paragraphs 30 to 33.  From my reading of the report and after listening to Mr P today and on previous occasions, I have been led to the firm conclusion that, rather than being biased against the father, Mr P has struggled in this process, in part as a result of his concerns for the father and the father’s inability to receive some of the messages that have been conveyed and to then act upon those messages.

36. Mr P describes the embedded nature of the father’s self-sabotaging behaviour as quite remarkable and it is clear from previous occasions and again today, that the father not only strongly disagrees with that assessment but remains absolutely in denial of any wrongdoing. 

37. Mr P has recommended a suspension of contact between these boys and their father.  I accept he made that recommendation with a heavy heart and mindful of the very adverse impact it will be likely to have upon the boys and, of course, their father.  I accept his evidence that he gave the matter deep thought, and a reading of his report provides some evidence of the depth of analysis and thought that Mr P put into making that very drastic recommendation.

38. I have reached the view that it is incumbent upon this Court to make a decision which will, as best it can, relieve the boys of some of the pressure they have experienced over recent times.  The recommendation of the Independent Children’s Lawyer and Mr P is to the effect that the most appropriate way to achieve that is to suspend contact. 

1. I accept that, in many ways, there are no winners in the suspension option.  Whatever the Court does, there are going to be problems.  These boys would, no doubt, greatly miss their father and feel their loss of a relationship with him, even temporarily, very gravely.  They will be unhappy about that outcome and I certainly cannot rule out the prospect that they will, in some ways, hold their mother responsible.  That is going to make her task in the short term a difficult one.

2. Until all of the evidence is heard and until the Court can determine the truth of these matters, I am not satisfied that it is appropriate that I change residence as an interim measure.  One of the possibilities, of course, is that the father, for all his attributes, does have a blind spot that undermines his parenting and undermines his children’s welfare.  One of the worst things I could do, given what they have endured since their parents’ separation, would be to make an order that another Judge found was not in the children’s best interests, with the consequence that they be removed from their mother and placed with their father, only in some months’ time to be removed from their father and returned to their mother.  These children need as much stability and security as can be provided for them between now and the final hearing.  There are unresolved issues between the parents as to the cause and causes of the children’s presentation.

3. At the end of the day, I have concluded that, on balance, it is more important that the children be relieved of what, unfortunately, has become the burden of moving from household to household, and that contact be suspended until the final determination, notwithstanding the hardship it will cause them and their father.

4. On balance, I am satisfied that the more immediate need which Mr P identifies as being an urgent one is the need to relieve the children of some of the stressors that led to the stark deterioration in their demeanour and welfare in September and October.  That is the more pressing objective and it is best achieved by the recommendations of the Independent Children’s Lawyer and Mr P.

5. The father may yet again feel hardly judged and he may, in fact, ultimately be proven to be hardly judged by this outcome.  I make it clear, as I have said before, that I have not determined matters against him and have not made findings that the mother’s version is the truth, the whole truth and nothing but the truth.  That is for another Judge.  However, what I do ask the father to consider is that others have made assessments of him that may be unfair or they may be reasonably based.  Unfortunately for the father, the primary focus does still rest upon him and how he manages himself with his children.

6. The father has said he has jumped through all the hoops that have been placed in his way to this stage.  The reality of what is being said by Mr P and by the legal representative who is charged with the responsibility of protecting the interests of the children, is that there may well be a need for the father to undertake further counselling and support therapy from an appropriately qualified person.  He cannot be compelled to do that, and intellectually he may well reject the need for it, but I do propose to make the orders sought by the Independent Children’s Lawyer in that regard and I do invite the father to embrace what he might perceive as yet another hurdle placed in his way and to embrace it positively, because my experience in this job indicates that, if people attend these types of therapies on a compulsory basis without any commitment to the exercise, it is unlikely that they will derive any benefit from them. 

7. I again ask the father to re-read the previous reports, to re-read previous reasons given in this case, and to search for a new perspective on what has happened.  He needs to continue to strive for ways that he can improve his parenting.

8. Although I will not be hearing the case, I do need to say to the father that, the way the evidence is unfolding, he continues to be the primary focus, and whether he likes it or not the chances are that the ongoing involvement of the Independent Children’s Lawyer and Mr P is going to be telling before the next Judge.  They are likely to be giving the next Judge similar messages.  That has now become the reality for the father.  Whether it is fair, whether he likes it or not, to some fairly significant extent how this matter unfolds from here may largely be in his hands.

9. Like Mr P in his recommendations, I take no pleasure in making these orders.  I have a great deal of sympathy and compassion for the father.  Nevertheless, I am satisfied that the orders that I make on a temporary basis are those which best deal with the very difficult situation presented. 

10. I do not propose to place any time limit on the suspension of contact.  I propose to make the orders until further order, because the matter will be referred to another Judge.  I anticipate that that process is likely to take something like two, three, four months, and I think it is more appropriately a matter for the next Judge to take responsibility for and to undertake a review.  Amongst the matters he or she might take into account, is any report from the Independent Children’s Lawyer or from somebody like Mr O.  That would be the best time to determine whether the contact arrangements between the children and the father need to be reviewed.

11. I will make orders in terms of the proposed orders of the mother expressed to be until further order.  In between order numbers 6 and 7, I will make a further order that the father undertake such psychotherapy as may be recommended from time to time by the Independent Children’s Lawyer in accordance with the terms of paragraph 5 of the recommendations contained in the Family Consultant’s report dated 25 November 2009.  I will make orders which will see this case transferred elsewhere.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  18 December 2009