Taebke and Taebke

[2019] FamCA 837

FAMILY COURT OF AUSTRALIA

TAEBKE & TAEBKE [2019] FamCA 837

FAMILY LAW – PARENTING – Where Orders are made in the absence of the respondent mother – Where the child was placed in the primary care of the father in December 2017 – Where the single expert reports significant enmeshment between the mother and the child – Where it is not in the best interests of the child to live with the mother - Where the mother refused to engage in supervised time with the child – Where the mother is presently residing in Country Q – Order for the child to live with the father – Order for limited supervised time with the mother in Sydney.  

Family Law Act 1975 (Cth) s 60cc.

APPLICANT: Mr Taebke

RESPONDENT: Ms Taebke

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

FILE NUMBER: SYC 8573 of 2016

DATE DELIVERED: 13 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Shepherds The Family Law Specialists
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Tiyce & Lawyers

THE RESPONDENT:  There was no appearance by or    on behalf of the respondent

Orders

IT IS ORDERED

1. That the father have sole parental responsibility for the child C born … 2007.

2. That the child live with the father.

3. That the child spend time with the mother for up to two (2) hours on the first Sunday of each month, in Sydney, such time to be supervised by an accredited supervision service agreed between the parties.

4. That the mother be restrained from:

   (a)       Attending at the child’s school, being G High School;

   (b)Approaching or contacting the father or the child except to facilitate these Orders.

5. That until further order the mother Ms Taebke born … 1969, her servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child C born … 2007 from the Commonwealth of Australia for a period of 6 years; AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal.

6. That all previous orders in this matter be discharged.

7. That all outstanding applications be dismissed.

8. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Taebke & Taebke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8573 of 2016

Mr Taebke

Applicant

And

Ms Taebke

Respondent

REASONS FOR JUDGMENT

1. Mr Taebke (“the father”) and Ms Taebke (“the mother”) are the parents of C who was born in 2007 and is now 12 years old.

2. The mother has Country Q and Australian citizenship.

3. The proceedings have been listed for hearing in the absence of the mother who is presently living in Country Q, her country of origin, and did not attend the hearing.

4. In order to understand how this matter came to be heard in the absence of the mother, it is necessary to understand a little of the procedural history. Not all court attendances are mentioned in the following account.

5. Proceedings in relation to parenting of C have been on foot, commencing in the Federal Circuit Court, since shortly after the parents separated in October  2016, when the father left the family home and C remained living there with the mother. The father asserted that the mother was preventing him from spending time with C. The mother asserted that the father had been violent towards C.

6. The proceedings have been marked by high conflict, by the mother’s insistence that the father posed a danger to C and by C’s adamant insistence that he did not want to spend time with his father.

7. In March 2017, orders were made for the parties and C to attend non-reportable family therapy and an Independent Children’s Lawyer (“ICL”) was appointed for C.

8. On 9 May 2017, orders were made for the parties and C to attend a Child Inclusive Conference with a Family Consultant.

9. On 21 June 2017, Dr R, a child and family psychiatrist, was appointed as single expert to prepare a report.

10. On 5 August 2017, there was a supervised contact session at the D Contact Centre (“DCC”).

11. On 4 September 2017, the mother was ordered to facilitate supervised contact between C and the father at DCC. The next and last contact session occurred on 9 September 2017.

12. In his reasons for judgment delivered on 14 December 2017, Judge Kemp summarised the evidence in relation to the supervised contact on 9 September at paragraph 58 and following:

    58.     On 9 September 2017, the supervised visit was terminated early due to the behaviour of the child.  The Court has had regard to Exhibit “B”, being notes from the contact centre in relation to that supervised visit.  The child had arrived on crutches with his left foot in a boot.  Notwithstanding this, the supervisor had noted that he walked normally and without crutches.  The child’s face was white with heavily applied zinc cream.  The child picked up a large plastic cricket bat and carried it towards the supervisor on the way to meet the father.  The supervisor took the bat off the child and the child then moved fast towards the waiting room.  The father followed the child back to the supervision area where the child, immediately, turned around and hit the father with his crutches.  The supervisor intervened and asked the child to be respectful.  The child, then, very aggressively and intentionally hit the father in the groin with the crutches, whereby the father was bent over in pain.  The child was shouting, picking up objects and throwing them towards the father.  The child stated “I don’t want to be here, I have been travelling 3 hours today and yesterday, too, when I don’t want to see you.  This is payback because he [the father] used to hit me, I don’t want to be here”.  It would appear that the child’s travel on the day before had been to attend interviews for the Single Expert Report with Dr R.  The child continued to throw things, including a ball over into the adjoining property and attempted to turn over a large climbing frame. 

    59.The supervisor took the child by the arm and asked him to accompany her to see the senior supervisor, who spoke to the child alone for approximately 10 minutes.  After the child had spoken with the senior supervisor and reiterated that he did not want to see the father, he said: “I’m here for destruction, I’m going to smash the television if I’m going back inside to see him [the father]”.  The child threatened to run away and said “I have my Opal card”.  The child said: “I’m not confused, I want to go now, you can convince other kids but you’re not going to convince me.  I’m going to hit him [the father] with the crutches or a chair or anything”.  The child started to move furniture around and said that he only wanted to see the mother.  The contact centre staff determined that the supervised visit should be discontinued, as the child’s destructive behaviour posed a safety risk for other persons at that centre.  The mother was called to collect the child.

    60.On arrival to pick up the child, the mother asked the contact centre staff if they were going to take her photo with the child.  Immediately, the child refused and left the centre.  Subsequently, the child was observed to be running away from the centre, with the mother running after him and eventually catching up to him. 

13. Dr R’s report was dated 26 September 2017.

14. Dr R spoke with C alone. He was adamant that he did not want to see his father or spend any time with him and that if the Court decided that he should visit his father he would run away. Dr R asked C what he would like to say to the Judge and C said “Every time he sees me he hurts me. I don’t trust going in his car or in his house. I don’t trust his mother”.

15. Dr R observed in relation to C:

    He used repetition and exaggeration to highlight his stories, and when he spoke about something emotionally laden he would change the subject to the ants on the windowsill…

    When he was telling me about the incident on 2 October 2016 his memory was word perfect, coinciding with the mother’s affidavit, however when discussing the reason for leaving Suburb E Public School he said, “Because they were constantly talking about terrorists”, which was the reason they left the Language 3 school a second time.

    When he was with his mother he was relaxed and confident, and they often finished each other’s sentences and he often expressed ideas which were clearly hers such as, “I like exploring different countries I’ve never been to”.

    When he was alone with the father his behaviour changed instantly. He became defiant and rude, and immediately threw something at the father causing me to have to intervene.

    He repeatedly blamed the father to his face, saying, “I’m missing basketball because of you” when he had a broken ankle, and spoke about things which were clearly an expression of the mother’s interests such as “You wasted your mum’s money”. He left the assessment room three times without permission when being told not to, and I had to ask the mother to return him to the assessment which she did with increasing difficulty until I cut short the interview. There was evidence of enmeshment in the relationship with the child speaking about himself and the mother as a unit, such as, “We let you sleep in, we timed you”.

    At times C’s sense of humour seemed to win out and in being cheeky to the father, saying how small the father’s brain was, he and the father were able to laugh together. He quickly checked himself and then started blaming the father again…

    While I was speaking to the mother with the Language 1 interpreter, I understood that C was sitting in the waiting room, however when I left the mother’s room I found C at the door of the interview room talking to the father and paternal grandmother, with C looking curiously at them. He was being very rude to both.

    On one occasion C tried to push his mother into the interview room to come with him, which she resisted, but at no time did she try to check his defiant, uncooperative behaviour.

16. Dr R observed C with his father and later with his paternal grandmother. C’s behaviour towards his father was aggressive and extremely rude. He left the room on a number of occasions and had to be brought back.

17. It is clear from Dr R’s observations and her report that C did not appear to demonstrate any fear of his father or to be in any way hesitant at insulting and being rude to his father.

18. Dr R spoke to C’s school principal and class teacher. C had been attending the school since July 2016. Dr R was told that C had struggled to make friends and tended to play with the younger children in the playground at lunch and recess. She reported:

    They reiterated that he played with younger children. He doesn’t tend to choose to spend time with his peer group. In class he was disorganised but generally did not misbehave.

    They told me he was quite a bright boy but struggled to finish tasks and didn’t usually contribute to class discussion. They said he didn’t often complete his homework.

19. Dr R was told that C did not attend overnight excursions or camps because his mother didn’t want him to.

20. The teachers had only had interaction with the mother and not the father. Dr R reported:

    They said that “there was always a drama”. When I asked what interaction with her was like, they said she’ll say what was going on in court and that they had received all one perspective from her side, never from the father’s side.

    The principal said that he’d heard from the mother about “how all the people had done terrible things [to her]”, and they said that the child had been late for school “more or less daily” with some “dramatic excuse”.

21. Dr R asked the teachers why C had changed from the previous school and was told that “generally she comes with a story about ‘the terrible standard of education’ there, how the maths was terrible at the last school”.

22. The teachers told Dr R that C had been in “homework support” and had been given a timetable to assist him to complete his homework but that had not helped. No proper excuse had been given for C not completing his homework, other than that he was “too busy”.

23. Dr R reported:

    I asked about C’s attendance at school, they said it was “pretty good” and that he’s at school most days but he had quite a few days where he arrives late, usually only 10 minutes, until recently. [C’s class teacher] had a meeting with C’s mother he told her that she had left no option other than to punish the child for lateness, and since that time he had been relatively punctual.

24. Dr R reported:

    I asked if the gentlemen had any further information to add, they said that every day C is sent to school with white sunscreen all over his face and he looks “like Marcel Marceau”. They couldn’t understand why the mother hadn’t purchased some invisible sunscreen, as it “sets him up for ridicule, that he looks peculiar, and that he stands out, and this had impeded his integration into the school”. They have apparently mentioned it “on numerous occasions” to the mother, but there has been no change which they found strange.

25. In relation to C’s wishes Dr R reported:

    C made it very clear by his words and actions that he did not want to see his father at my assessment, at the D Contact Service, or ever again. He said this to me clearly, repeatedly and gave his reasons. He said he did not like his father, because he said his father always hurts him, swears at him and his mother, refuses to give him a passport, and insists on seeing his [sic] at the DCC which interrupts his weekend activities. He told his father that there was nothing that he could do to make it up to him. He chastised his father rudely for not paying for things for him, not sending birthday presents, or sending infantile presents which he ripped up anyway.

    His view was reinforced by his defiant behaviour at my assessment and at the DCC.

    He said he would run away, catch a bus, hide, climb a tree if the Court made an Order for him to see his father. Given that the child has been driven almost everywhere throughout his life, and that he’s relatively inexperienced at public transport I think that this is highly unlikely.

26. In relation to the nature and the relationship between C and his father Dr R reported:

    During the observation in my assessment, C at times made jokes which he and the father were able to share, for example about how bad the father’s memory was, and when I came out of the interview with the mother, I found C standing at the door with his crutches, rudely talking to the father and paternal grandmother until I asked him to leave. This shows a curiosity and an attraction to have attention from his father which he could easily have avoided.

    My impression is the child saw enough of his father during his childhood to have an attachment relationship, but this had been disturbed over the course of separation.

27. In relation to the relationship between C and his mother Dr R reported:

    The mother has been the primary carer since C’s birth, and she has devoted her life to bringing him up and educating him. The child seems attached to his mother, but there seem to be few boundaries between them, with him finishing her sentences and espousing her views. The mother referred to C in making decisions about their lives from an early age (“He didn’t want me to reconcile with the father”) and involved C in the Court process for the ADVO when he was only nine. He was not allowed to attend camps or retreats with the school.

    This close involvement appeared to be an unhealthy enmeshment, where the child is given his own way on important decisions such as the parents’ marriage.

    In an enmeshed relationship, the young person can be unconsciously coerced into doing what the adult wants, without realising that it wasn’t the young person’s idea. The child’s emotional state acts like a barometer in tandem with the mother’s. In this case, the child becomes agitated at each contact visit and has enacted the mother’s hateful feelings towards the father, kicking and throwing things at him. This doesn’t allow the child to love and respect his father and to feel disloyal to the mother if he was wanting to see his father.

    The mother believed she was being a loving, nurturing mother and protecting C from an abusive relationship with his father. My understanding was that the mother is angry at the father and wanted to cut the father and the extended paternal family out of C’s life.

28. As to the willingness and ability of each of the parents to facilitate and encourage a continuing relationship between C and the other parent Dr R stated:

    The mother wants no contact with the father and for future contact between C and the father to be according to C’s wishes, and to have full parental responsibility of C. She said she was intimidated by the father’s abusive behaviour.

    The mother was grudgingly taking C to the DCC but complaining to staff that he doesn’t like it, that he’s missing his sporting activities, and that the travel there was onerous, three hours each way by public transport. She didn’t mention that she also has a registered car and could drive him there. She has already planted seeds in C’s mind for future overseas travel...

29. In relation to the father Dr R stated:

    The father initially applied for five nights a fortnight contact and shared parental responsibility, but recently having seen C’s disturbed behaviour has suggested that a period of no contact with the mother might be useful for him. He would then suggest alternate weekends with the mother which could be introduced gradually, and for C to become acquainted with his paternal family that he doesn’t know.

    The father realised that this could be a very difficult procedure given C’s current behaviour and that he would need professional assistance.

30. In relation to the likely effect of any change of circumstances on C Dr R stated:

    C has already had virtually no contact with his father for 11 months. He was at the time of the assessment alienated to such a degree that he would have no normal interaction with his father or paternal grandmother. This has clearly been reinforced by the mother, either consciously or unconsciously.

    …

    If his residence were changed to the father, C initially would be furious and would behave badly I believe. He may try to run away but I do not believe that he is sufficiently independent or competent and experienced in travelling independently to get from Suburb B to Suburb E.

    I believe that it’s likely that he would eventually stay with the father but would miss his mother.

31. In relation to the capacity of each of the parents to provide for C’s needs Dr R commented that although the mother prided herself in encouraging C intellectually, his school homework was not satisfactorily done at the Language 3 school, at the Language 2 school or at his current school and “this indicated that the mother either didn’t take it seriously, or wasn’t able to make him do it. This would fit in with her lack of authoritarian stance as a parent.”

1. Dr R stated:

   The mother despite her involvement with her son and repeated emphasis on his education and nurturing parenting, seemed in denial that the child was socially awkward at school. She compounded the problem by insisting that he wear white sunscreen daily, despite what his teacher and principal have told her…She said that he has “tonnes of friends”, but according to the teacher and principal these are usually with children much younger then him, not in his peers.

   The mother told me that C is a “gentle soul” however he kicks and throws things at the father. She said she “teaches him to respect everyone”, but not the father or maternal grandmother to whom he was extremely disrespectful.

2. Dr R commented that the mother had also disregarded C’s need for stability by changing his primary school six times.

3. Dr R stated:

   After nearly 12 months without his father, the child has become a defiant, uncooperative boy who is difficult to redirect by his father or the staff where the father is concerned. His homework doesn’t always get done and he has started kicking out at people, both his father and the mother (child dispute conference 27/03/2017) to avoid his baths.

   His attendance at the Language 2 school showed that in six months he missed 10% of days.

   His current teacher said that he was late to school most days, was not integrating with his peers after 18 months, and comes to school smeared with white sunscreen daily which makes him stand out even more. …

4. Dr R noted that the mother had delayed the onset of supervised contact for four weeks and “takes C there by public transport which makes the process more uncomfortable for the child”.

5. Dr R stated:

   My assessment of C was that he was a gifted child who was quite socially regressed and inept, despite being quite articulate. He was very badly behaved and unashamedly rude to his father. He knew that there would be no consequences from his mother. In spite of what the mother said about teaching C to respect everyone, he had not shown any respect for his father or paternal grandmother or that the was a gentle soul when he kicks out at her, the toys or his father.

   …

   As the father has had minimal contact in the past 12 months the current situation is entirely a product of the mother’s parenting.

6. In relation to the father Dr R stated:

   The father was patient and calm yet firm with C who was irritating, naughty and rude in my office. He did not let go of the child’s bad behaviour but quietly pointed out that he should watch his language or that that was not nice.

   C is a vigorous, active child who struggled to sit still and would benefit by having a father with whom he could ride bikes, kick balls and go to sport.

   The father offered C a more balanced lifestyle with less emphasis on academic achievement and more involvement in family functions, something he has never regularly experienced.

7. In relation to C’s mental health Dr R stated:

   C was a bright, active boy who does what he likes and thinks what he likes, as long as it fits into the mother’s conception of what he should do. He has a very distorted view of his father and has an anxious enmeshment attachment to his mother. He couldn’t relax when she was outside the room, asking me where she was, making eye contact with me to try and shorten the assessment with his father, and using his physical strength to push his mother into the interview room when he didn’t want to do alone [sic]. He is convinced that his father is abusive and will tell anyone who asks, such as his teacher, me or the staff at the DCC.

   He will need years of therapy to remediate the situation and unpack the very fixed, inflexible view that he has integrated from the mother.

8. Dr R recommended that the father have sole parental responsibility for C and that he live with his father. She recommended that there be no contact with the mother for 3 months. After 3 months she recommended that C should have weekend contact with his mother but that if he was not returned to school after contact then the contact should be suspended for a further three months. Dr R recommended that C be taken to an experienced clinical psychologist.

9. The matter came before Judge Kemp on 17 November 2017. His Honour ordered, upon judgment delivered on 14 December 2017, that the father collect C from his school and bring him to the Court so that a Family Consultant could meet with C and explain to him, inter alia, that he was to live with his father and spend no time with his mother for a period of three months. The orders also made provision for therapy for C.

10. C was not at school on 14 December 2017 and the father was unable to collect him.

11. However, the mother brought C to the Court on the following day and, after a hand over that was obviously both dramatic and traumatic for C, the father took C home.

12. On Sunday 17 December 2017, the father took C to his music lesson after having received an email from the mother asking him to take C. The lesson was at Suburb E Junction. Waiting for the lesson to end, the father saw C running down the footpath. The father sought assistance from the police who went to the mother’s home at Suburb E but C was not there. C was located by the police at his mother’s home that evening. Thereafter both the Department of Family and Community Services (“DFCS”) and O Hospital were involved in assessment of the child’s and the mother’s complaints about the father’s treatment of him.

13. On 23 January 2018, Judge Kemp heard the father’s application for a recovery order to issue to the Marshall and police, such warrant to be stayed to give the mother an opportunity to deliver C to the father at a specified time and place. After hearing from all parties, his Honour made orders that the child be delivered to the father on 2 February 2018, the date of judgment delivery, and ordered a recovery order to issue if he were not delivered.

14. C was delivered into the care of his father on 2 February 2018 and has since lived with his father. He has engaged with a therapist, Mr F.

15. The mother filed an appeal against the orders of 23 January 2018 and sought a stay. The appeal was deemed abandoned in June 2018.

16. On 15 March 2018, the Court noted that the mother’s application for a stay of the orders had been adjourned three times on her application.

17. C was to resume contact with his mother on about 5 May 2018.

18. On 7 May 2018, the mother delivered C at school and he left shortly after. The police were involved in searching for C.

19. In his report dated 22 May 2019, Mr F referred to the event which had occurred on May 7^th 2018 when C was dropped at school by his mother and immediately left and spent the day hiding. C eventually turned up at his mother’s home at 8pm where the police who had been looking for him were interviewing the mother but stopped short to say where he had been and refused to go home to his father.

20. Mr F reported:

    C told me a bit about the day he spent away. The motivation appeared to be centred around some concern about being bullied as there had apparently been an altercation in the playground where someone was hurt, and he was worried that was going to happen to him. In normal circumstances such worries would be dealt with by speaking to a trusted adult and having the situation resolved or talked through so that the concerns could be alleviated. I believe that this is very difficult for C to mentalise as his reality is constantly challenged and he does not know who to trust. This puts him at risk, creates a very challenging parental environment for the father and contributes to the poor prognosis of C’s mental health in the long term.

21. On 15 June 2018, orders were made, inter alia, for mediation. The Court noted that the Department of Family and Community Services had conducted a risk assessment and did not identify any risks to C in the father’s household.

22. The ICL tendered a letter from the principal of P School, the school that C was then attending dated 26 June 2018.

23. The principal stated:

    In truth, C’s mental state is of considerable concern to us all. It is well recognised that optimum academic progress cannot be achieved when one’s mental health and wellbeing is suffering and C is certainly presenting as a child with very poor wellbeing. At this stage, C presents as a ‘below average’ to ‘average’ student. He is often defiant in class and his capacity to work is dependent on his mental state at the time which of late, has not been good. C has not been used to clear boundaries being set and he responds rudely and negatively at times when stuff make attempts to set boundaries.

24. The principal stated:

    Whilst C’s mother has made mention of C not doing the extra-curricular activities, it is our opinion that this should not be a priority at this stage. The suggestion that he could be learning music, languages etc. fails to appreciate the seriousness of C’s mental wellbeing and inability to generally cope.

25. The principal concluded:

    Whilst most of this information can be extrapolated from the psychologist’s and principal’s notes and documents subpoenaed last week it is evident that C is a disturbed child. The School continues to support C and work closely with his father.

    C’s mother continues to make a number of allegations extremely repeatedly even when the school can see no evidence for these accusations.

    The issue previously referred to (“folie à deux” or shared psychosis”) is quite evident. C’s lack of empathy and inability to form friendships – particularly friendships with his own cohort – is alarming. He plays with much younger children but often his play is an extension of his fantasy world in which he lives.

26. The ICL tendered a report from C’s psychologist Mr F dated 27 August 2018. Mr F stated:

    I have learned that on Friday C was expecting his mother to pick him up from school and take him home for the weekend. I believe that you have been supplied with details as to what happened – namely, that she did not appear at the school and despite [the father’s] best efforts he was not able to get her to take C for the weekend. She did not reply to any of his texts, respond to his request to come to the front door of her apartment to talk to C or in any way try to connect with C to explain what the problem was and why she could not see him.

    Putting aside the issues around this case in terms of the history of contact between C and both parents I’m deeply concerned about how this sort of scenario impacts C’s mental health and developing personality.
    We already have situation [sic] whereby we know he has been stuck between two parents who are un-reconcilable in terms of how to care for their son. This has involved actions by the mother that have actively turned C against his father in the form of AVO’s, police complaints and accusations of assault. The court have [sic] decided however that contact should be maintained with the mother and have impressed on the parties the importance of that contact; which I concur with.

    However, if these orders are not met by one party – and the child’s expectation is that they will be seeing the absent parent – the intra-personal impact of that not happening – in the face of an active decision by the parent not to pursue the mandated contact – is immense, and should be considered an act of emotional neglect at the least. Active denigration of one parent (in this case the father) followed by the denigrating parent then not seeking out or maintaining contact with the child (in this case the mother) – resulting in the child having to then stay with the very parent who he has been told is abusive and dangerous (the father) – is akin to stripping the child of any sense of containment or belonging with either parent and leaves them in a very vulnerable and mentally precarious place; this is compounded by C’s approaching adolescence which will compound the situation even further. As a result C will be at an even higher risk of having a severe mental illness in his later years than he already is as a result of the issues surrounding his childhood to date.

27. Mr F concluded:

    In the 5 months I have been working with C it is evident already that he has a very confused internal world; although his father does appear to be trying to create the best environment for him the years of having been turned against his father by his mother make it difficult for C to trust or believe in anything; This results in an escape into a fantasy world that is the only place that C can feel belonging and certainty. Events like last weekend drive him even further into this shaky mental defences against chaos, and therefore harder to access on a real life basis.

28. Mr F stated:

    I would therefore strongly encourage the Court’s [sic] and the ICL to act in the best interests of C whereby the visitation arrangements are set up so that C is not put in a similar position again. There should be mandated hand-over rules that are not negotiable or open to interpretation and clear and strong consequences for non-compliance.

29. On 21 September 2018 Mr F wrote to the ICL expressing his concern about the irregular and unpredictable nature of the contact that C was having with his mother. Mr F said that C was confused about what was happening around him and who was in control when he does and does not see his mother. Mr F stated:

    As a priority, contact should only go ahead when the outcome of the contact is guaranteed – with assurances in place that the contact actually happens, that there is no denigration or criticism of the other parent, and that the child is not co-opted into one side of the argument through whatever means.

30. On 24 September 2018, the matter was transferred to the Family Court. At that time there were competing applications for C to live with each parent and the mother was alleging numerous contraventions of the orders by the father.

31. C commenced Year 7 at G High School in 2019. The father deposed that C is doing well at school and has made friends who live in the same area.

32. The matter came before me on 6 February 2019 for the first day hearing. The mother sought the appointment of another single expert and she was directed to provide the names of three consultant child and family psychiatrists to the father and the ICL.

33. The mother did not provide the names of three psychiatrist but rather suggested three psychologists to whom the ICL and the father objected on the basis, firstly, that they were not appropriately qualified and secondly on the basis that the mother had spoken to each of them about the matter.

34. On 1 May 2019, the ICL was requested to ask the President of the Royal Australian and New Zealand College of Psychiatrists to nominate a suitably qualified expert. The Court was subsequently notified that the President declined to make a nomination.

35. On 22 May 2019 Mr F sent a further report to the ICL. Mr F stated:

    I have seen C for a total of 58 sessions since February 2018. He presented initially in a highly resistant and disorganised state that continued for several months. At the beginning of the therapy C was in the process of being moved back to his father’s care. As is well documented there were a number of issues at this time around the mothers [sic] interactions with C which made the process a lot harder, as did the irregular visitations referred to in my last report. However C has settled greatly in both his presentation in the therapy as well as when he is with his father (according to his father) since my last year report, and on the whole he is presenting in a less manic and disorganised manner. He has managed the transition to high school, although there have been some problems socially and between he [sic] school and the mother, which I refer to below. I have no information as to how things are when he is with his mother as she has not contacted me since the start of treatment.

    Although the visitation issue did settle down there have been a number of concerns coming from the mothers [sic] actions when C is in her care. I believe some of this is known to the court but in summary involves the mother presenting with C at hospitals and police stations with what have been determined as false accusations against the father.

    I’m also aware of [Risk of Significant Harm] reports where I am the subject of complaint about my treatment of C. I do not know who made the ROSH reports as per FACS policy, but it is an indication of ongoing undermining of the support structures that have been put in place to help C manage at least a basic level of mental stability.

    The multiple ROSH reports have resulted in a FACS investigation which determined that all the reports (25 in total I think) were without merit and were dismissed. I attended a meeting with FACS on April 17 to discuss the case and put forward my view that if these incidents of false reporting were to continue and that C was involved in the making of those reports it would have a severe impact on his mental development and ability to function at normal levels in all aspects of his life.

    My clinical determination for making this case is based on C’s behaviour and state of mind in sessions with me after he has been a party to these false reports; he becomes more hostile, disorganised, defended and manic in sessions and harder to manage. A week after these events he tends to become more accessible and can begin very gently to look at the disparity between what he is telling police officers on the one hand and what actually happened on the other.

    A case in point is the recent ROSH report that his father had driven a nail through his knee creating a puncture wound; this was manifestly untrue – there was no puncture wound, and I saw the said wound that week when C told me he had been hit on the knee with a stick by a 5 year old girl at a party – a more likely account which matched the nature of the “wound” (which was a scratch).

    The burden this puts on a young mind to match the reality of what actually happened with what he is being told has happened by a parent is extreme. C’s underlying drive is to get his parent’s approval and love – especially his mother’s. If this is attached to contorting his reality to match an alternative version – or completely fabricated event – put forward by one parent, it presents a very confusing an [sic] conflicted state of mind. Should he assert his reality and risk the rejection by a parent, or alter his reality and get the approval and love of the parent? C evidently does the latter, and therefore spends much of his time rejecting his reality and accepting someone else’s. This is emotionally abusive as it puts the needs of the parent in front of the needs of the child, and exposes the child to a high risk of developing a long term mental disorder.

36. Mr F concluded:

    In conclusion C is at risk of long term mental health issues if the ongoing false reporting is not curtailed immediately and that measures are put in place to make sure that it does not happen again. Also I would suggest that all communication and contact with the mother is supervised until such a time that the court is satisfied that he is being allowed to experience a clear and reality-based experience of his world and the things going on around him, and is not manipulated into an agenda that seeks to promote either parents version of the truth.

37. On 23 May 2019, Senior Registrar Campbell ordered that the mother’s time with C be supervised in a contact centre. The mother declined to facilitate supervised contact and did not respond to the father’s proposals for supervision.

38. On 27 August 2019, the father filed an Application in a Case seeking to have the matter determined and final orders made.

39. In support of that application, the father relied on an affidavit by himself and an affidavit of his solicitor which annexed correspondence to and from the mother.

40. The application in a Case and the father’s affidavit were served on the mother by email.

41. The correspondence referred to in the affidavit of the solicitor  revealed that:

    ·    The mother had not responded to any contact from the solicitor attempting to arrange contact with C.

    ·    That on 4 July 2019 the mother had left Australia and travelled to Country Q. The mother wrote a letter to the Court on 4 September 2019, and provided a copy to the father’s solicitor. The letter stated, inter alia:

    On 4^th July 2019 I boarded a plane from Sydney to City H, Country Q. When my brother contacted me with news of my father’s illness, I needed to travel immediately to look after my father. He was admitted to Hospital. My mother is also unwell. I am taking care of both my parents.

    I am unable to attend court on 5^th September 2019.

    I will be staying in Country Q for an indefinite period of time and until such date that I can see my son C...

1. On 5 September 2019, directions were made to list the father’s application on 31  October 2019 and for the mother to file and serve any material upon which she sought to rely by 4pm on 17 October 2019. The Court also noted that, in the event that he mother did not file any material, the matter would be dealt with on an undefended basis. The solicitor for the father advised the mother of those orders, directions and notations.

2. On 25 October 2019 the mother sought to file an Application in a Case seeking orders, inter alia, for C to travel to Country Q as an unaccompanied minor until 26 January 2020.

3. In the affidavit in support of that application, sworn by the mother on 15  October  2019, the mother stated that she was unable to travel to Australia for a hearing on 31 October 2019. She did not indicate when, if at all, she might return to live in Australia.

4. The mother sent an email to the Judge’s Associate on 30 October 2019, indicating that she wished to rely on a large volume of material including affidavits sworn by her and others; material produced on subpoena which had not been tendered before me. She also wished to rely on CCTV footage of all of the dates she attended at the Court; of the “forcible removal of C inside the garage” of the Family Court; of the interview of the child C at Suburb J police with an independent witness and “footage of the [D] Contact Centre”.

5. The mother also said that she would like to subpoena the recordings of interviews conducted by the Family Consultant and by Dr R, however, no subpoenas had been issued.

6. In her email, the mother made clear, as she had on numerous occasions before the Court and in correspondence, that she challenged the accuracy of Dr R’s report.

THE HEARING

1. The mother did not appear.

2. There have been two recent applications filed by the mother and I have assumed that she relies on both.

3. In an Application in a Case filed on 25 October 2019, the mother seeks orders that C travel to Country Q as an unaccompanied minor, returning on 26 January 2020.

4. In a response to the father’s Application in a Case filed 30 October 2019, the mother seeks the following orders:

   1.That C… who is going to be 13 years old have a right to have a voice in these proceedings due to his maturity and age as per article 60CC.

   2.That C… have a right to have a mother, grandmother and grandfather.

   3.That a Review of Court Orders of Registrar Campbell be granted as I did not know that time had elapsed.

   4.That C have the right to continue to practise his religious beliefs. C was raised Catholic and have been deprived to continue to go to mass every Sunday at the Catholic Church in Suburb E.

   5.That C have his wishes of living with his mother heard as he expressed his views and wishes to every single person involved in these proceedings. I have been the primary carer of C from baby to 11 years old.

   6.That C… have the right to travel to Country Q after 12 years to see his grandmother and grandfather.

   7.That C… have the right to be protected and nurtured as per article 60CC.

   8.That C… have the right to see his music tutor [named] and continue his passion to become a musician and continue his tuition with his well renowned tutor and be allowed to travel to compete at the International Talent Competition.

   9.That C… have the right to see his Language 2 tutor [named]… and her family who loves C very much. C started to play music after watching the Vienna Philarmonica [sic].

   10.That the child C… have the right to rekindle his friendship with all his friends from Ice Hockey, AFL, Basketball, Swimming lessons, language schools, European friends and the neighbourhood.

   11.That C have the right to see his Language 3 tutor and her children and continue his Language 3 lessons.

   12.That C have a right to see his father everyday after school and weakends [sic] as long as C is safe. I have put in November 2017 an Amended Application stating the father could see his son 2 days per week initially and increase the time after a proper report from Dr. K. There was no need to forcibly remove C as Judge Kemp stated as “only way for the father to have a relationship with the son”.

   13.That C… stop seeing psychotherapist Mr F [sic] who is not a child psychologist and see an independent child psychologist. Evidence shows that C is forced to see the psychotherapist.

   14.That C… be allowed to speak his grandmother and grandfather language – Language 1, Language 3, Language 2.

   15.That the “report” done in 20 minutes by Dr. R who had over 100 errors be dismissed. C has been deprived contact with his mother, his maternal grandmother and grandfather and aunties, uncles, cousins in Country Q since the forcible removal.

   16.That C… who will be 13 years old next year have the right to Freedom.

5. As she requested, I read the following material filed in the mother’s case:

   ·Affidavit of the mother sworn 8 May 2019

   ·Affidavit of the mother sworn 15 October 2019

   ·Affidavit of the mother sworn 22 January 2018

   ·Affidavit of Ms L sworn 22 January 2018

   ·Affidavit of Mr M sworn 22 January 2018

   ·Affidavit of Ms N sworn 19 January 2018

   ·Affidavit of the mother worn 16 November 2017

   ·Affidavit of the mother sworn 22 January 2017

6. Relevantly to the application of the mother to review the orders made by the Senior Registrar on 23 May 2019, none of those affidavits was prepared with the assistance of an interpreter.

7. However, the mother was not available for cross examination, and neither were her witnesses and the evidence upon which the mother relied, where her version of events was disputed, could be given little weight in those circumstances.

8. The father relied upon his affidavit sworn 25 August 2019 and an affidavit of his solicitor sworn on 24 October 2019.

9. The ICL relied upon the report of the single expert and tendered reports from the principal of the school C attended in 2018, his dentist and three reports of C’s treating psychologist, Mr F.

10. The basis upon which the Court determines what orders are in the best interests of a child is set out at Section 60CC of the Family Law Act 1975 (Cth).

11. The Court must balance the two primary considerations of, firstly, the benefit to a child of having a meaningful relationship with both parents and, secondly, the need to protect a child from physical or psychological harm.

12. In the present case, the mother has chosen to remove herself from Australia and from any possibility of C’s maintaining any relationship with her. She says that she will remain in Country Q for an indefinite period “and until such date that I can see my son C...”

13. However, it appears that she will see C only on her terms.

14. She has made it clear, as she stated in paragraph 60 of her affidavit sworn 29  October 2019, that she will not see C in a supervised setting. The mother deposed:

    I informed the ICL that I would never force my son to go to a Contact Centre or a supervised visitation...

15. I accept the evidence of Mr F that continued exposure to the mother’s relentlessly negative statements about his father is harmful to C and will cause him ongoing psychological harm.

16. Thus it is necessary that the time C spends with his mother, if she returns to Australia, is spent in conditions where C can be protected from, and removed from, his mother’s behaviour.

17. It is difficult to envisage any situation, other than professional supervision, that would accomplish this aim and the mother has made it clear that she will not engage with supervision.

18. C has been in the care of his father since 2 February 2018. He has not seen his mother since she left Australia to live in Country Q and it cannot be known whether she will ever return to Australia.

19. The mother did not attend the hearing to pursue her applications.

20. There is no doubt that when Dr R saw C he wanted very much to live with his mother and not to see his father. He has been living with his father since February 2018 but there is no evidence of his present views. The evidence of his therapist does not suggest that he has changed his views since he saw Dr R, although he does note that C has “settled greatly” in his current arrangements. However, having regard to the influence of the mother over C’s views, no weight could be given to his views.

21. Dr R characterised C’s relationship with his mother as “enmeshed”. It is to be hoped his relationship with his father is gradually repairing.

22. The mother has taken the step of leaving Australia and thus takes no steps to participate in any way in C’s life. She tells the Court that she will live indefinitely in Country Q until such time as an order is made that C live with her.

23. There is no evidence that the mother provides any financial support for C.

24. There is no practical likelihood of any change in the arrangements for C’s care, having regard to his mother’s decision to remove herself from Australia. I have no doubt that C misses his mother deeply.

25. The mother’s inability to properly foster C’s emotional welfare has been canvassed earlier in these reasons. I accept the evidence of Mr F that C has settled greatly in the care of his father and I accept that as evidence that the father is able to provide for C’s emotional wellbeing. The fact that he has settled in his high school suggests that his intellectual needs are being attended to.

26. It is unfortunate that C is not sharing his Country Q culture with his mother but that is a decision that his mother has made.

27. On the evidence available, I am unable to find that the mother has established that there was family violence as she alleged.

28. The Court is left with no other viable alternate carer for C.

29. C will remain living in his father’s care.

30. There is no evidence that suggests that there has been any communication between the parents since C entered into his father’s care and particularly since the mother returned to Country Q. It is not practical to require the father to consult with the mother about significant decisions relevant to C’s ongoing welfare and he must have sole parental responsibility.

REVIEW OF THE DECISION OF THE SENIOR REGISTRAR

1. Order 3 sought by the mother in her Response was a review of the decision of Senior Registrar Campbell made on 23 May 2019.

2. The mother had previously attempted to file a review application on 17  October  2019 but that application was rejected for filing by a registrar on the basis that it was substantially out of time.

3. The registrar, in advising the mother that the application had been rejected, also advised her that she should seek advice from a lawyer about extending the time to file such a review.

4. In her affidavit sworn 29 October 2019 at paragraphs 6 and following, the mother deposed that on 23 May 2019 before the Senior Registrar she was denied the assistance of an interpreter. She deposed, “I cannot have legal fairness if I cannot understand what is being said by the Court Officials”.

5. I note that her affidavit sworn 29 October 2019, of some 92 paragraphs and couched in sophisticated language was apparently prepared without the assistance of an interpreter and that, in earlier Court events, she has appeared before me without the assistance of an interpreter and been able to communicate her position effectively.

6. As to the reasons for failing to file the application within time, the mother deposed “I had no knowledge that I could seek a Review as I have been denied legal representation by the Australian Government”.

7. It is not necessary for me to determine whether time should be extended. The application to review the decision of the Senior Registrar has no utility and has been overtaken by the final hearing.

8. The application will be dismissed.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees J delivered on 13  November 2019.

Associate: 

Date:  13 November 2019