SHIFFER & GEISS

[2019] FCCA 3924

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHIFFER & GEISS [2019] FCCA 3924

Catchwords:
FAMILY LAW – Undefended hearing – matter returned to Court after four day contested hearing in 2012 – parties in litigation since 2008 – Father makes recordings of child – Father’s obsessive parenting style – Father has engaged in abuse of the child – sole parental responsibility to the Mother – child to live with the Mother – child to spend no time with the Father.

Legislation:

Family Law Act 1975 (Cth), ss.60 CC, 65DAA

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MS SHIFFER

Respondent: MR GEISS

File Number: CSC 572 of 2008

Judgment of: Judge Willis

Hearing date: 29 January 2019

Date of Last Submission: 29 January 2019

Delivered at: Cairns

Delivered on: 29 January 2019

REPRESENTATION

Solicitors for the Applicant: self-represented

Solicitors for the Respondent:	no appearance
Solicitors for the Independent Children's Lawyer:	Ms Collier

ORDERS

1. All previous parenting Orders be discharged.

2. The child X born 2007 (“the child”) is to live with the Mother.

Parental responsibility and time with

1. The Mother have sole parental responsibility for decisions in relation to the long-term and day-to-day care, welfare and development of the child, subject to the communication and notification of such decisions to the Father, including but not limited to:

   (a)Education (both current and future) including the choice of school;

   (b)Religious and cultural upbringing;

   (c)Health and medical issues including sole parental responsibility for having any tests administered for any allergies or other suspected illnesses;

   (d)The child’s name;

   (e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

2. The child is to spend no time with the Father.

Gifts and Cards

1. The Father is at liberty to send the child gifts and cards, care of the Mother, and the Mother is at liberty to open those gifts and cards prior to handing them to the child to determine their suitability.

Restraints

1. The Father is restrained from:

   (a)informing the child that she is allergic to seafood or that she is likely to suffer an anaphylactic shock if she eats seafood;

   (b)making any contact at all with the child (including in person, by telephone or any other method);

   (c)using any physical punishment of any kind on the child;

   (d)making any derogatory comments about the Mother of any kind whatsoever;

   (e)making any recordings of any kind whatsoever in the event that he does spend time with the child;

   (f)attending at the Mother’s home, the child’s school and/ or any place the child is engaging in extracurricular activity;

   (g)removing the child from the care of the Mother or any person, place or institution at which the Mother places the child without the prior written agreement of the Mother.

Passport and Overseas Travel

1. That the Mother, MS SHIFFER, may apply for a passport or a renewal of the passport for the child X born 2007 (female) without first obtaining the consent of the child’s Father and the passport is to issue notwithstanding that the Father has failed to sign all documents necessary to do so.

2. The Mother is permitted to remove the child from the Commonwealth of Australia and travel overseas with the child for the purpose of a holiday at any time at her sole discretion.

Further Applications

1. Pursuant to s 64D(2) this Order may only be varied by subsequent Order of the Court.

2. That these Orders be explained to the child by the Independent Children’s Lawyer or a Family Consultant.

3. The Independent Children’s Lawyer is to be discharged 30 days from today’s date.

4. All outstanding applications are removed from the pending cases list.

NOTATION:

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 572 of 2008

MS SHIFFER

Applicant

And

MR GEISS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant in this matter is Ms Shiffer, the mother. The respondent was Mr Geiss, the father, and the Independent Children's Lawyer is Ms Nardine Collier.  This matter has been in my docket since 2017 and before that in I think 2012 or 2013. I had had a contested hearing with the parties and made some orders that the child of the relationship X born 2007 was to live with the mother, she have sole parental responsibility.  And there was I think weekend time for the father and half the holidays. 

2. The matter came back to Court in 2017. There was an initiating application filed by the mother on 5 June 2017.  She was having problems getting X to go to the father. It had been reported to her that X had a head injury which was caused by the father.  The mother withheld contact. The father responded by filing an application for contravention.  I dealt with his application for contravention and dismissed it. The reasons for that are on the file and I rely on those reasons. The mother had valid reasons for withholding contact.

3. I noted in those reasons that the mother had come to Court doing the right thing and asking for the orders for contact to be reviewed.  In the meantime the father filed a contravention. The father said at that time that he had not been served with the mother’s material, though the mother had an affidavit of service.  The father then discontinued the contravention. I have noted it was absolutely clear on the material of the mother and now validated by the child inclusive memorandum (in which the child has been interviewed) the child has significant fears about the father. At that time I noted that the concerns, really, amount to emotional abuse of the child being caused by the father if the information provided by X is correct.

4. The Mother says X is emotionally overwhelmed with the constant questioning and recordings made by the father and that this had caused X considerable stress.  The recommendation is that all recordings of X cease and for telephone calls to be limited or cease if the child finds the calls are contributing to her anxiety.  I also observed that the child was concerned for her own welfare that she was going to be in trouble from the father and she has been accused by the father of lying before.

5. I noted that the father had made recordings and insisted that the child tells lies about what was happening to her in the home where she resides with her mother. The child said that she was concerned that the father was going to harm her again.  She said the father lifts his hands and sometimes she flinches as she gets a smack because in the father’s view she is lying and X gets questioned extensively by the father and she is scared of her father.  She said her father has become crankier over time and X wishes to spend more time with the mother. 

6. It was not difficult to conclude that the child was being subjected to what is tantamount to child abuse in the many, many recordings being made of her.  The ICL has listened to them. The recording sounds as if the child is reading out a script about a myriad of lies about what is happening to her at the mother’s home.  The father is undermining the mother’s standing and authority and undermining the child’s relationship with the mother.  The mother has already been through contested litigation and deemed to be the appropriate parent to be the primary parent. The father, through his passive aggressive and manipulative ways, has set about to undermine the orders which were the outcome of the contested hearing. The father is directly involving the child in his manipulative behaviour.

7. Since that time an Independent Children's Lawyer has been appointed. In relation to the renewed application of the mother, the father’s time was suspended.  Orders were made for him to attend at the Contact Centre to prepare himself for the commencement of supervised time, when and if X was ready for it.  However, the father refused to do that.  He refused to comply with the Court’s Orders. All he wanted to do (and the transcripts will show this) was come to Court and say, “Please, please, please listen to the recordings.” The father said this over and over whilst ignoring Orders to do the intake procedure for supervised time.

8. I advised the father very clearly that until he complied with the Court’s Orders to file material explaining all the recordings, that I would not be listening to all of his recordings. There was considerable trouble taken by the Court to have the technology made available for him to submit the recordings in an appropriate way.  That took many months, the father would not engage properly to do this.  The father, meanwhile, has dropped out of the process.  He is not engaging in this litigation and really has not done so since March 2018.  He refuses to go to the Contact Centre.

9. The father is a most aggressive and overbearing man and that is seen in his obsessive characteristics observed by the psychiatrist.  And the psychiatrist said that he may not have a psychiatric disorder, but notes his obsessive compulsive tendencies. The psychiatrist stated that the father needed to step back and stop telling X what to do.  He needed to accept that she was an individual and that she was entitled to explore her own individuality.  The father had an obsessive parenting style (see previous reasons) that did not help matters. The psychiatrist noted that Mr Geiss made video recordings of his daughter that can be construed as a violation of privacy and may be making the child anxious, which is what the mother has reported.

10. In this matter I accept unreservedly the mother’s evidence of what X has been experiencing.  In terms of the primary considerations, based on the mother’s evidence, and the father is not prepared to come to Court to contest it, I accept that the mother has seen the child being upset, intimidated, harassed, overwhelmed, scared, frightened. The mother has done, in my view, everything in accordance with the child’s best interests.  She suspended the child’s time with the father when she finds a head injury caused by the father. The circumstances of that injury were that happened while the child was in the father’s care. He became angry with the child and hit her, and X fell on some furniture. 

11. This is not the act of someone who demonstrates appropriate parenting skills. The father’s sustained conduct of making hours of recordings telling the child to repeat lies about her mother whilst recording them is deeply concerning. The father did this when X spent time with the father. The father’s parenting places the child at an unacceptable risk of emotional harm. I am not satisfied that the father is able to control himself and exercise appropriate parental responsibility or capacity to parent when considering his action in hitting a child so hard that they then subsequently end up colliding with furniture and suffering an injury.

12. I have given the father the opportunity to have his parenting style observed and he has refused to do that.  He has taken the path of least resistance and decided that if the Court is not going to do what he wants to do then he is not going to come to Court.  The case therefore becomes undefended with the father walking away and so the litigation continues with just the mother and the Independent Children’s Lawyer, Ms Collier.

13. The mother has satisfied me that she continues to be an appropriately caring and ‘in tune’ parent.  She has always acted in the child’s best interests.  She has facilitated time between X and the father even when to do so has made her feel uncomfortable but she has tried to keep things going.  I have had regard to the child’s views.  She is described as being mature and articulate.  She expressed a request for supervised visits until she felt comfortable with the father again.  And she found the phone calls with the father distressful.

14. It is now January 2019.  The child has not seen the father since May 2017.  The father has chosen not to spend supervised time with the child.  He has chosen not to take up the opportunity of supervision by Babysitters A, as was ordered in July 2017. The telephone communication has been less than satisfactory. I could not trust the father to conduct himself appropriately with telephone or one-on-one time with this child.  I am satisfied that he is using manipulation in his association with his child and that he is using the child to undermine the mother and the child’s relationship with the mother.  This is causing confusion and distress for X. It is certainly not in the child’s best interests to have to spend hours being recorded by the father repeating his script of lies about the mother and then to be hit by the father when she says she is tired or does not wish to do it.

15. I have deep concerns about the father’s attitude towards the child and about his responsibility towards parenting. I am not satisfied he has the capacity to show genuine care or parental regard for this child.  The father gave evidence about his living arrangements.  He was living in a house (at that stage) provided by his parents.  He had other people living with him.  He was receiving rent for that and he was receiving a disability pension for a back injury.  He had hundreds of dollars a week at his disposal.  He paid not one dollar towards the financial support of his daughter.

16. I regard the father’s behaviour as menacing and unpredictable. I do not consider that it is appropriate that he be permitted to turn up at school or anywhere else, unexpectedly and at a time of his choosing, which he has done in the past. This will do nothing but cause further anxiety for the child. School should be a safe place for learning for X without the issues involved being brought into the school yard.

17. Overall I am satisfied that the father can be a cantankerous disagreeable individual when he chooses to.  The father also appears immature in the extreme. He has shown no ability to make sensible, pragmatic, child focussed decisions for this child. There has been no sign of improvement. I am satisfied that the presumption does not apply given the father has engaged in abuse of the child. I am satisfied that the presumption is rebutted as it is not in the best interests of this child to have the mother trying to make sensible decisions with the father by having discussions with the father. He has shown he can be contrary.  He does not make good decisions.  He is not child focused.  He does not have an ability to communicate with the mother.  He is playing games constantly as he did coming in and out of Court saying, “I do not want to comply with the orders but I want you to listen to my tapes.”  He is controlling and manipulative, as is shown in his behaviour towards the mother and the child. He is an abuser of X. It is not in the child’s best interests to have him making decisions for her. 

18. The father does not know this child well enough, in my view, to be making any decisions for her.  It is a serious order to make, that the child spend no time with the father.  However, the Court has no choice in this matter.  The father is not prepared to go through the contact centre.  He does not come to Court, unless things go his way then he wants to negotiate and control the process. He represents an unacceptable risk of physical and emotional harm to the child.

19. I do not intend to make an order that, “in the event that the child requests to spend time with the father, the mother will facilitate.” I am satisfied that to do so will simply result in the father relying on such an order to bring a contravention and thus further litigation.  Moreover, I am satisfied and have confidence that if X should wish to see her father, that the mother would organise. 

20. I am quite satisfied that, if the child did express a view that she wished to see her dad, the mother would organise for that time to occur and that would occur in a way and in a time and a place of the mother’s choosing that would be in her best interests.  As I have said, I do not intend to make that order, as I am quite satisfied the father will use that order to contravene the order to get back to Court to start up some more litigation. 

21. I do not intend to make an order that the mother is to inform the father as soon as reasonably practicable of any significant condition suffered by the child, as I think it would be used for the same purposes. The mother is the one making the decisions. She is providing all of the finance. She is providing shelter, food and education, a social life and providing all of the child’s requirements.  I am not going to give her the burden of keeping the father informed just so that he can use the opportunity to disagree with what she is doing.    I am satisfied that if something very serious occurred in X’s life, that the mother will make the right decision as to what the father needs to know and when.

22. Importantly, given the evidence of the abuse of the child, the presumption of equal shared parental responsibility does not apply.  I am also satisfied that for the same reason, it is not in the child’s best interests to require the mother to consult and negotiate with the father.   The father does not deal honestly with either the chid or the mother.

23. The future Orders will provide for the mother will have sole parental decision-making.  That will include all matters of education, religious and cultural upbringing, all health and medical issues and where the child lives.  Having given the mother that authority, I do not intend to have the mother in these circumstances where the father is not complying, and he has committed acts of abuse upon the child, involved in decisions about the child.

24. I can recall in the past the father telling the child that she was allergic to crustaceans which she was not and restraints had to be issued preventing him from doing this.  This followed hours of evidence about that topic.    The father is quite irrational in his decision making and judgment.  I have no confidence that the father should be involved in making medical or any other long term decision for this child.  I do not intend to make orders requiring the mother to have to inform the father about the decisions she makes.

25. I am satisfied that, if something very dire was to happen with the child, the mother would inform the father. I would strongly recommend that the mother put it in writing.

26. I am not making orders about the paternal-family members and the child however, I would assume again that if the paternal family sent letters, they will be passed on. I am satisfied the father would actually use that order to create further litigation likely asserting “My mother sent something, and it has not been handed on”.  I am going to leave the restraints that I had in the previous orders, including the father is restrained from informing the child she is allergic to seafood or she is likely to suffer.

27. These are final Orders.  The father has chosen to further engage in these proceedings.  As set out in this judgment, I am deeply disturbed about the father’s engagement with and use and abuse of the child.  I am also troubled at the father’s engagement and disengagement with this litigation and the length of years that this child has been the subject of litigation.  I am not at all critical of the mother in this respect.

28. Any subsequent applications will be subject to the principles in Rice & Asplund. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate: 

Date: 7 October 2020