Serrano and Ray (No.2)

[2020] FCCA 2510

FEDERAL CIRCUIT COURT OF AUSTRALIA

SERRANO & RAY (No.2) [2020] FCCA 2510

Catchwords:
FAMILY LAW – Parenting – interim hearing in relation to two children – where the children live with their mother and spend time with their father pursuant to consent orders – where there are concerns about the father’s insight – where the father has involved the children in proceedings – where there is a need to protect the children from psychological harm – vary interim time orders – transfer to the Family Court.  

Legislation:

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

Applicant: MS SERRANO

Respondent: MR RAY

File Number: ADC 4421 of 2018

Judgment of: Judge Young

Hearing date: 19 August 2020

Date of Last Submission: 19 August 2020

Delivered at: Darwin

Delivered on: 19 August 2020

REPRESENTATION

Counsel for the Applicant: Mr O’Dea

Solicitors for the Applicant: O'Dea Lawyers

Counsel for the Respondent: Mr Dillon

Solicitors for the Respondent: Scammell & Co

Counsel for the Independent Children’s Lawyer: Ms Fuda

Solicitors for the Independent Children’s Lawyer: L.G. Lawyers

ORDERS

UPON NOTING: 

A.That the trial in this matter is likely to take longer than five days

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the children X born in 2008 and Y born in 2009 do live with the mother.

2. The said children spend time with the father on Monday and Thursday from 3pm to 5.30pm each week with the father to collect the children from school and return them to the street in front of the mother’s home.

3. That an injunction be granted restraining each of the parents from:

   (a)abusing, denigrating, assaulting or harassing the other of them in the hearing or in the presence of the children or permitting any other person to do so;

   (b)discussing any issue in these or any other proceedings including but not limited to live with, time spending with or showing any documents filed in these or any other proceedings in the hearing or presence of the children or permitting any other person to do so;

   (c)attending at the children’s school to deliver them late or collect them early at any time save and except in the event of the parent being contacted by the school to collect the child(ren)

   (d)physically disciplining the children or permitting any other person to do so;

   (e)attending at each other’s residential address save and except in accordance with the time spending orders or by invitation in writing via sms.

   (f)from communicating by any means with the other parent save and except in relation to matters directly relating to the children.

4. The mother use her best endeavours to obtain a mental health care plan for the children from their current General Practitioner and the children attend upon such counsellor or psychologist as recommended by their GP.

5. That the matter be transferred to the Family Court of Australia, Adelaide to be listed on a date and time to be advised to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Serrano & Ray (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 4421 of 2018

MS SERRANO

Applicant

And

MR RAY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim hearing in relation to two children, X who has just turned 12 and Y who is 10 years old.  She turns 11 later this year.  The children live with their mother and spend time with their father, pursuant to consent orders made on 12 December 2019.  Those consent orders provide, in summary terms, for the children to spend five nights a fortnight with their father. 

3. Today I was presented by each of the parties and the Independent Children’s Lawyer (“ICL”) with a proposed minute of consent order that, essentially, replicated those orders of 12 December 2019, with some small changes.  I raised with the parties whether the proposed consent orders could possibly be seen as being in the best interest of the children, given the material that was before me and, indeed, before the parties and the ICL. 

4. The material I refer to of course is not only the historical material.  I refer in particular to the reasons for judgment I gave on 7 March 2019 where the mother had sought a recovery order after the father refused to return the children, or at least Y, for reasons which on a most cursory reading raise concerns about the father’s mental health, his involvement of the children in the proceedings and whether or not they were at risk of harm, particularly psychological harm, in his care.

5. There was subsequently an order made for both parties to be psychiatrically assessed and that really arose out of the allegations the father was making.  This was that he believed Y was being sexually abused by or with the connivance of the mother, that the mother was working as a prostitute and various other allegations that raised the suspicion that the father may suffer from a psychosis or some other kind of delusional condition.

6. The assessment of Dr C, a psychiatrist, was that there was nothing exceptional about the mother’s psychological or psychiatric state.  She appeared quite normal.  However, Dr C reached the conclusion that the father suffered from a psychiatric condition called delusional disorder of the paranoid subtype.  Dr C recommended that the father’s condition be treated.  He was of the opinion that it could be treated and, ordinarily, should be treated with an antipsychotic drug, or a small dose of an antipsychotic drug.  Dr C also, considering the history of illicit drug use that the father had revealed to him, recommended that there be random urine tests done on the father to ensure that he was no longer using, for example, methamphetamine, which he had said he had used some months before.

7. The family report has been conducted in two parts because of the COVID-19 restrictions.  The first part involved telephone interviews with the parties and not the children but the second part involved a face-to-face interview with the children.  When I refer to the family report I am really referring to what I consider to be a single family report in two parts.  The other part of the history or the documentation that I should refer to is the child inclusive conference memorandum dated 21 March 2019, also by Ms D, the assigned family consultant who prepared the family report.

8. The family report raised very serious concerns about the father, his insight, for example his denial of having any mental health problem, in observation his evident lack of attunement to the children, and also concerns about the children’s relationship with the father; in particular, some evidence that the father had involved the children in the dispute in some way.  The family consultant discusses the fact that X had brought along, apparently, a note saying what he wanted.  That is, according to X, an equal or even time arrangement.  The family consultant was concerned that in discussion with X his actual emotional presentation and his further remarks did not appear to be congruent with the wishes that X was expressing about equal time.

9. In relation to Y, the family consultant was very concerned about the child’s presentation in the conference and the observation of the father.  Y was quiet.  She was withdrawn and resistant, really, to any engagement with her father.  Y had said to the family consultant that she, Y, felt that the consent orders of 12 December 2019 did not reflect her wishes, which had been clearly expressed in the child inclusive memorandum of 21 March 2019.  While Y, in particular, wanted a relationship with her father she did not want to spend, it would appear, so much time with her father, or at least she wanted a choice in that matter.  Y said in that report, I am referring to the unpaginated fourth page of that report, where Y told the family consultant that:

   She felt uncomfortable with her father and stated that, “Dad says rude things about Mum and swears, Dad is mad at Mum.”  Y reported that, “Dad is telling lies about Mum, that she (Mum) is doing wrong things.”

10. There is much more of that nature.  Y also referred in that report to having written a letter, which I believe was put in evidence in the earlier hearing, the one that I dealt with on 7 March 2019, where Y had in fact made allegations against her mother.  Y said in the child inclusive memorandum that what she said in that was not true and it “hurt her heart” for writing that letter. 

11. The child inclusive memorandum and particularly I think those comments raised very grave concerns about the welfare of these two children, particularly Y.  Those concerns, in my view, are reinforced by the family report.  As I said, Y told the family consultant that she did not think that her views or wishes expressed in that child inclusive memorandum had been recognised.  She felt unheard in the court process and having regard to the orders made on 12 December 2019 by consent, not only of the parties but by the independent children’s lawyer, I can easily understand why Y would feel that way.  In my view, the orders of 12 December 2019 were very arguably inappropriate.  I made those orders but in my view I probably gave inordinate weight to the fact that I was presented with consent orders, something that has happened again today.

12. As I say, the family report raises real concerns about the welfare of these children and the nature of their relationship with their father.  Y told the family consultant that she had considered self-harm.  She said she did not want to spend overnight time with her father at this stage.  I have already mentioned X taking along a note or a letter for the family consultant but his actual expressions, emotional expressions and expressions of view, were in the view of the family consultant, incongruent with that letter.  X taking along a letter is reminiscent of Y producing a note back in March 2019.  The clear suspicion is that, in both cases, the children have responded to the father in some way to feel the need to express wishes in writing in this court process.  In the case of Y she promptly disavowed the truth of what she had said.

13. The family consultant was of the view that both children needed mental health support and she recommended that the mother obtain a mental health care plan for both children.  It appears to me that there is probably abundant material to indicate that that ought to be considered.  The family consultant also recommended that the children’s overnight time cease with the father. 

14. The counsel for the father, Mr Dillon, has quite properly pointed out that there is no magic in a family report and that all of the material that I have referred to is untested, that is, the father disagrees with Dr C’s assessment and diagnosis.  The father apparently takes issue with the observations and recommendations and opinions of the family consultant, all of which he is entirely free to do. 

15. I asked Mr Dillon whether anything had been done by the father with a view to obtaining another psychiatric assessment, given that he disagrees with Dr C’s assessment.  I was told that nothing has been done so far, but apparently, according to Mr Dillon, there is some appointment for counselling with a psychologist.  In my view, that falls well short of indicating that there is any step by the father, or there has been any step by the father, taken with a view to offering an independent or different psychiatric assessment.  I might add that the psychiatric assessment carried out by Dr C was pursuant to an order for assessment by the court by an independent expert.  That was not challenged and, indeed, has not been challenged so far.  In my view, the assessment of Dr C needs to be given very significant weight.  I acknowledge it has not been tested but I give it significant weight, bearing in mind there is no indication from the father about how it is to be challenged.

16. In relation to the family report, of course, there is no magic in the family report. It has not been tested. However, the material in the family report, while being untested, needs to be given some weight because, of course it raises very serious concerns about the issue described in section 60CC(2)(b) of the Family Law Act. That is the need to protect the child from physical or psychological harm arising from being subjected to or exposed to abuse, neglect or family violence. This is not a case where family violence is an issue today, though I note that there are background allegations of extreme family violence. The issue today, in my view, is whether there is a need to protect the children from psychological harm and from being exposed to abuse or neglect.

17. The material that I have in mind in particular in relation to that, appears in the father’s affidavit material.  The father filed an affidavit dated 17 August 2020.  A number of paragraphs in the affidavit deal with the children’s comments to him about the family assessment report process and with an evident view to undermining the validity of the family consultant’s opinions.  However, I read from paragraph 17 of the father’s affidavit:

    Upon arriving home, the kids asked questions about the report.  I suggested that they may wish to read the report to see if Ms D [a reference to the family consultant] got anything wrong.  X read the report and became very concerned.  As Y started to read it, X asked me if we could talk privately.  We went to my bedroom and talked, and his first comment was, “Dad, I’m not being mean, but I don’t really like Ms F from our church who was mentioned in Ms D’s report ‘cos [because] every time I try to talk to her, she puts her hand in front of me and does not want to hear anything from me.”  I replied with, “then don’t talk to her.”  X expressed how he was very worried that he may lose me.  I said, “Well, it’s a bit late for that.  You guys should have told Ms D what you told me, the truth.”  He then said, “If that got back to Mum, she would flip her lid.”  I added, “That is exactly what you said about me.”

18. Paragraph 18 goes on to say as follows:

    X and I then laid on my bed hugging, and he said, “I don’t want to lose you, Dad.”  He started crying, and I started crying too.  I replied, “I don’t want to lose you either.”  X then said, “I knew Ms D did not take me seriously and care what Y and I wanted.”  I replied, “I’ve done all I can, bub.  I can’t do anymore.”

19. There is more in the same vein concerning Y.  Annexed to that affidavit at annexure 3 is a document apparently from the church that the father attends.  I do not know the name of the church, but it is a church and the father attends with the children.  The father at paragraph 28 of his affidavit refers to the children attending the, “Sabbath school lesson on God’s truth.”  It seems that in this lesson the children fill out or write on some kind of photocopied sheets, and the eight pages I see at the foot of the page the document is said to be the copyright of the G Church.  So it is hard to tell what handwriting is X’s and what is Y’s, necessarily, but I take it that the clearer handwriting was probably X’s, and the least clear handwriting may be Y, though on reflection I think it may in fact well be the other way around.

20. At one of the pages, and I think this must be Y, she writes as an issue that:

    We have (me and X) a fear of losing our dad.

    And it goes on to say other things. Then there is some writing on a similar page, I think probably from X, and he defines some issues that are concerning him.  I will not mention them all.  Issue 3 is:

    Issues that are court-related, such as losing dad.

    Then there is another page, and I think this is probably filled out by Y, this is, apparently, applying the lesson of a Bible insight:

    Ask God for us not to lie to Ms D again and be more honest.

    I take that to be a reference to Ms D, the author of the family report.  There are some other remarks as well. 

21. It would appear that the father is in breach of all good practice and probably in breach of the notation on the notice that is invariably included on the front of a family report, as there was in this case signed by me on 4 August and also on 4 June, that unless otherwise ordered, no person shall release the report or provide access to the report to any other person.  The father’s conduct in showing the children, or at least X, the report would appear to be a clear contravention of an order. 

22. That is not the real problem however.  The real problem is that involving the children in the way he has done, letting them see how a family consultant has interpreted what they say, and having to understand the consequences of that, has the result, in all probability, that the children are placed under intolerable emotional and psychological pressure.  I am satisfied these children are suffering intolerable emotional and psychological pressure as a result of this proceeding. 

23. My concerns about the father’s lack of insight and his conduct goes further than this.  There are the somewhat disturbing mentions in the church material.  There is also an affidavit filed by Ms H on behalf of the father, also on 17 August 2020.  Ms H says that on 15 August 2020, she had the father and the children around at her house for lunch and they went to a church activity.  I assume it is the same church activity as the father was involved in, that is the G Church.  After some general remarks, Ms H said that X had said to her he was: 

    ..really sad he might lose his father.  It hurts him so much, he tries not to think about it.  He said that their mother had told them that they need to lie for her.  He admitted that they had lied for their Mum when she accused their father of dragging her by the hair [a reference to an incident of family violence that occurred while the parties lived together some years ago], and Y agreed that she didn’t see that happen.  I asked why they would lie when it could mean that they would not be able to see their Dad. 

24. Ms H then said that:

    I asked did she bribe them, or threaten to hurt them if they didn’t lie.

    In the next paragraph she goes on to say:

    I asked why they think their mother would say these things about their dad.  I asked was it that she was trying to get back at their dad for breaking up the relationship or that she didn’t want to share them with their dad.

    Next paragraph:

    I asked why the social worker’s report [evidently a reference to the family report] made it sound like they didn’t want to see their dad.

    Then it goes on. 

25. In my view, the material filed by the father is the most damning material in front of me.  It shows the father deliberately, clearly and repeatedly engaging these children in issues that they ought not be engaged in, or at least not exposed to expressly.  He has shown them a family report.  He has permitted a Ms H to discuss the family report and the contents of the family report with the children and discuss it in a way which reflects extremely poorly on all the adults involved. 

26. It is clearly exposing these children to the dispute in a way that I am satisfied, and I make this finding, bearing in mind that the material is unchallenged and appears in the father’s own material, that in this case, there is a need to protect these children from psychological harm and from being exposed to abuse or neglect.

27. Mr Dillon rightly pointed out that that is not the only factor in deciding or determining the best interests of children, and of course, he is entirely correct in that submission. However, it is the factor that must be given the most weight. I have regard to the other considerations, including the benefit to the children of having meaningful relationships with their parents and the additional considerations in section 60CC(3). I am of the view that these children are currently being psychologically harmed. I believe there is a necessity to do everything I can to prevent that happening, giving effect to the requirement in section 60CC(2)(b).

1. The independent children’s lawyer told me, as did Mr O’Dea, counsel for the mother, that the reason why they came in with consent orders providing for the children to continually spend five nights a week with the father, contrary to recommendations of the family report, is that they were concerned about the effect on the children of a reduction.  These children are clearly, deeply enmeshed in this conflict.  The children are clearly psychologically and emotionally enmeshed to a degree that is, in all probability, deeply harmful to them. 

2. I think it is speculative what might happen if the children’s time with their father is reduced.  However, I think the opportunities for the children to be exposed to what I consider to be at least, at the very minimum, evidence of a serious lack of parental capacity and insight on the part of the father must be considered.  Whether or not limiting the time they are exposed to that makes a difference is probably unclear, but I give the recommendation of the family consultant very significant weight in all of that.

3. I propose to make orders discharging the orders of 12 December 2019 and I propose to make orders until further order that the children live with the mother.  I will vary the time orders of 12 December 2019.  There will be orders that the children live with the mother and that the children spend time with the father from 3 pm to 5.30 pm each week on Monday and Thursday.

4. In this matter the last time it came before me there was an application for transfer to the Family Court.  The reason said to be the reason for transfer was the complexity of the matter.  I pointed out to the parties on that occasion that complexity is not one of the eight criteria included in the protocol for division of work between this court and the Family Court.  However, I have received more useful submissions from Mr Dillon and Ms Fuda today, who I might say did not appear on the last occasion, so I am not to be understood as making any criticism of them.  

5. Mr Dillon points out, rightly in my view, that the length of trial in this case is likely to be lengthened because there are serious allegations of historic family violence, including an allegation of rape which is the subject of criminal proceedings against the father in the District Court of South Australia at the moment.  That is the reason why I vacated the trial dates. 

6. Mr Dillon said that regardless of the outcome in the District Court, and even if the father is acquitted, that does not mean that there will not be extensive canvassing of that allegation in a trial in the family law jurisdiction.  I accept that submission.  Mr Dillon also said that the evidence on the father’s side would be the father, very possibly a psychiatrist or psychologist if there is to be a challenge mounted against Dr C’s assessment of the father and possibly an ancillary person, as Mr Dillon put it.  

7. Ms Fuda said she generally agreed with Mr Dillon’s submissions and she thought the matter, as did he, would take at least five days.  Mr O’Dea did not tell me what he thought the length of trial was to be, so I do not have the benefit of any submissions from him on the point.  However, I am satisfied that, having regard to the protocol between the courts that the matter is likely to take in excess of four days’ hearing time, so I propose to transfer it to the Family Court.  

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 7 September 2020