Weiss and Arnold

[2007] FamCA 1463

FAMILY COURT OF AUSTRALIA

WEISS & ARNOLD [2007] FamCA 1463

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal or Striking Out  

Family Law Act 1975 (Cth)

APPLICANT: Mr Weiss

RESPONDENT: Ms Arnold

INDEPENDENT CHILDREN’S LAWYER: Ms Olsen

FILE NUMBER: NCF 941 of 2005

DATE DELIVERED: 4 December 2007

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Mullane

HEARING DATE: 27 September 2007

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Mr Ulbrick,
Macquarie Legal Centre

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Messrs Boyd Olsen Lawyers

Orders

1. The father’s Application in a Case filed on 3 September 2007 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 941 of 2005

MR WEISS

Applicant

And

MS ARNOLD  

Respondent

REASONS FOR JUDGMENT

BACKGROUND

1. This was a hearing of the father’s Application in a Case seeking interim orders in respect of 3 boys:  J who is 13, B who is 10, and Z who is 9.  The father is the natural father of Z and during his cohabitation with the mother was the step-father of the other boys.  

2. On 15 March 2007 Interim Orders were made for all 3 boys to live with the mother and for the boys to spend no time with the father and have no communication with him.  Various other interim orders were made, including an order requesting the Department of Community Services (DoCS) to intervene in the proceedings. 

3. The reasons for those Orders have been distributed in written form.  The decision was based primarily upon the findings of the Court Expert, Ms S, a psychologist.  Ms S on the basis of interviews and observations of the parties and the children and of the children interacting with the parties.

4. The parents cohabited from about October 1997 and married in May 1998.  They separated in December 2003.

5. Not long after separation the father moved with the boys and did not inform the mother of their location.  For 16 months the mother was no aware of their whereabouts and the boys had no contact with her.  When she did locate them, it became necessary to have contact supervised by a contact centre because the boys were alienated from her and reluctant to spend time with her. 

6. The father had a disagreement with the contact centre and subsequently the contact centre refused to continue their service to the family.

7. Proceedings were commenced between the parties regarding the children and the first day of a Less Adversarial Trial occurred on 13 November 2006.  On that day orders were made for the preparation of a report by a Single Expert.  The children were represented by an independent lawyer by that stage.

8. Ms S’ report, released to the children’s lawyer on 12 March 2007 and to the parties on 15 March 2007, is of 85 pages.  She concluded her report with the following:

   FORMULATION

   It is apparent that the father/stepfather, [Mr Weiss], has perpetrated severe emotional abuse on these 3 boys in the context of the Family Court conflict. As such, in my opinion, it is not appropriate for the boys to continue to live with him or to have unsupervised contact with him. I do not believe that any "counselling" will significantly alter [the father]'s behaviour or attitude, at least in the foreseeable future. In my opinion, [the father] is quite a dangerous person (in the relationship rather than the physical sense) for these boys and they need to be protected from him for the rest of their childhoods.

   The emotional abuse of these children (particularly [J]) has been so severe and so harmful to them that it is recommended that the boys BE REMOVED FROM [THE FATHER]'S CARE AS SOON AS POSSIBLE. This should entail an urgent re-listing of the matter in the Family Court.

   A straight change of living arrangements will not be without difficulties, given the mother's past parenting problems and her current uncertain living arrangements; and her difficult pregnancy. As well, the mother and her partner will go from having no children to having 3 children at a time when the mother is heavily pregnant, then having another new baby in a few months' time. The mother's partner, too, while seemingly an emotionally healthy man, has little experience of parenting on a full-time basis. Thus, the change of living arrangements may well be very stressful for this couple, as well as for the boys, who will be coping with their grief about and ambivalence to their father. The mother and her partner may need professional help to assist with their adjustment.

   Such an abrupt change of home and school and the cessation of regular counselling will involve huge changes and possibly significant stress (and feelings of guilt) in the children.

   However, this short-term stress must be weighed against the long-term damage to the children's development and to their relationship with their mother due to the ongoing psychological abuse by [the father].

   RECOMMENDATIONS

   It is respectfully recommended that:

   1.The matter be urgently re-listed in the Family Court.

   2.The children be removed from the care of the father/stepfather and placed with the mother AS A MATTER OF URGENCY.

   3.The father have NO unsupervised contact with the children and be prohibited from making any other contact with them.

   4.Counselling for the children with [Ms A] be stopped immediately.

   5.The children be brought to the Family Court for the changeover to take place, with the children then attending a session with a Family Court Counsellor to explain the findings of the court.

   6.The father should not be given this report in advance, as there are concerns that the children would be placed by him under further stress/pressure and encouraged to act ­out accordingly prior to the changeover. This would place the children, especially [J], at very high risk.

   7.Within 3 months of resuming their care, the mother should arrange for paediatric, occupational therapy and speech assessments for [Z] from her local Community Child Health facility.

   8. Liaison between Family Court Counselling personnel and the children's current and new schools should take place, with both being given copies of orders. This is to prevent any manipulation of the educational system by the father.

   9.There should be similar liaison between Family Court Counselling Service and D.O.C.S. for the same reason.

   10.There should be liaison (if this is possible) between Family Court Counselling staff and the Victims Compensation Tribunal in order to effect a reversal of the findings relating to the MOTHER'S "abuse" of the children, so as to provide sound reality testing for these children.

9. On 15 March after the report had been released, the children’s lawyer and the mother sought orders roughly in accordance with the recommendations of Ms S.  The following Orders were made after submissions of the parties:

   11.1     The Director-General of the Department of community Services of NSW is requested to intervene in these proceedings;

   1.2The Registry Manager is to notify the Director-General of today’s Orders;

   1.3Within 48 hours the Registry Manager is to provide the Legal Office of the Department and the Department’s Regional Directors of the Regions covering [the Newcastle area] and the Blue Mountains with sealed copies of these orders and copies of the following documents:

   i)        Questionnaires of the parties;

   ii)       Applications for final orders of the parties;

   iii)      Any affidavits by either party;

   iv)       The report of the Expert, Ms [S].

   1.4Upon request from the Director-General the Registry manager is to permit inspection of the Court file by a person authorised by the Director-General or one of the Regional Directions and copying of any part of it to enable consideration of the request to intervene in the proceedings.

   2Pending further order the children [J] born […] September 1993, B born […] June 1996, and [Z] born […] July 1998 are to live with the mother.

   3Pending further order the children are to spend no time with the father and have no communication with the father.

   4         Pending further order the mother is restrained from:

   4.1      permitting the children to spend time with the father;

   4.2      permitting the children to communicate with the father;  and

   4.3      permitting the children to have contact with [Ms A].

   5Pending further order the father is restrained from spending time or communicating with any of the children.

   6The mother is to make the children available this afternoon for the Judge and Counsellor to inform the children of the Orders.

   7Within 3 months the mother must do all acts and things necessary to arrange, through her local Community Health Centre, for the child [Z] to be assessed by the following health professionals:

   7.1      a paediatrician;

   7.2      an occupational therapist;

   7.3      a speech therapist.

   8These Orders are sufficient authority to any health professional to provide the assessments in Order 7 and to treat the child [Z] without the need for written authority of the father.

   9Within 7 days the mother must enrol each of the children at school and notify the Independent Lawyer for the Children of the name and address of the schools.

   10The Director of Child Dispute Services at Newcastle is requested to liaise with the Independent Lawyer for the Children, the Department of Community Services, the mother and the children’s present schools and schools they attend in the mother’s care.

   11The Director of Child Dispute Services is to provide all those schools with copies of the report of Ms [S] and today’s Orders.  

   12By consent the father’s Contravention Application and Application in a Case both returnable on 2 April 2007 are withdrawn and dismissed.

   13Within 7 days the father must deliver the children’s belongings to the mother or her nominee outside [W] Police Station in daylight hours and give the mother at least 24 hours notice of the day and time.

   14The mother has permission to provide the Victims’ Compensation Tribunal with a copy of the report of Ms [S].

10. At the time of hearing of this application the boys had not had any contact or communication with the father for more than 6 months and had been living for that time with the mother and her husband. 

11. The father’s application seeks no less than 81 orders regarding the children and the proceedings.  He seeks that pending further order Z reside with him and J and B spend time with him every second weekend in school terms and for roughly half each school vacation. 

12. The father’s affidavit is of 93 paragraphs.  There are about 115 pages of annexures to the affidavit. 

13. Much of the material in the affidavit is hearsay evidence by the father about matters of which he has no direct knowledge.  Some of it is secondary evidence of the contents of documents.  Quite a lot of the material is opinion evidence by the father on issues which require expertise for such opinions and the father does not disclose any such expertise.

14. The father does not have evidence by any expert with relevant expertise that contradicts the opinions of Ms S from an informed base.

15. Most of the affidavit (74 paragraphs) is devoted to the father disagreeing with matters of fact or opinion set out in Ms S’ report.  As to the opinions, Ms S has expertise, but the father does not.  As to the matters of fact, the father either disagrees with what Ms S alleges or supplements factual matters she relied upon.  There is no evidence as to whether new facts that he raises would affect her opinions and conclusions.

16. As to the factual materials set out by Ms S and disputed by the father, without the benefit of cross-examination of the father or Ms S, the only relevant points seem to be is that the father is one of the protagonists  in this conflict between him and the mother and Ms S found the father to be a manipulative and dishonest person who has used the boys for fraudulent purposes to obtain compensation under the Criminal Injuries Compensation legislation for alleged assaults by their mother, and, on the other hand, Ms S has no personal interest in the proceedings, has no connection with either of the parties or any of the children, and is an independent expert who was selected by the children’s representative to prepare the report for the family.  In those circumstances, without the benefit of cross-examination, the court prefers the evidence of Ms S contained in her report to evidence of the father contradicting that.

17. The father has not offered evidence that is capable of establishing that there has been any change in the circumstances of the family that might justify a change in the living arrangements for the boys.  The circumstances which lead to the order for the boys to reside with the mother and have no contact or communication with the father have not changed and still apply.  Those orders are still in the best interests of the boys and should continue.

18. The father seeks access to school and medical reports for the children.  Given the findings of Ms S as to the father’s hostility to the mother, his controlling and manipulative behaviour, and his conduct in alienating the boys from her, it would be contrary to their interests to allow the father to have access to school reports, school newsletters etc.  Similarly, orders that he seeks regarding meeting with the school principals and class teachers should not be made as they would be contrary to the interests of the boys at this time.

19. The father seeks an order that would permit him and his partner to attend sporting activities and school activities for the boys.  On the evidence it would be contrary to the boys’ interests to allow that to happen at this time.

20. The father seek an order for him or his partner to be notified of any “emergencies resulting in the children being hurt or put into hospital or needing medical assistance” and also an order that if one of the children is sick and hospitalised, the father and his partner be able to spend time with the child at the hospital.  On the evidence such orders would be contrary to the boys’ interests and should not be made.

21. The father seeks an order for Z to be enrolled in the school under the surname “[Weiss]” and not enrolled under any other surname.  The father offers no evidence to establish that there is any likelihood that the mother would enrol Z under any other surname.

22. The father seeks orders restraining the mother from taking the children outside NSW or Australia.  There is no evidence that the children have passports in which case the requirement for parental consent or an order of a Court before the children can be taken out of Australia applies.  In relation to the restriction on movement outside NSW, the father has offered no evidence of any likelihood that the mother would do this.  There is no basis for the injunctions he seeks.

23. The father seeks an order restraining each parent from denigrating the other to the children or in their presence or hearing or permitting anyone else to do so.  There is no evidence that the mother has denigrated the father to the children and in the circumstances the Court is not satisfied that the children’s interests require such an order be made in respect of either parent, bearing in mind that the children are not communicating with or spending time with the father.

24. The father seeks an order for each parent to encourage “the relationship between each parent and there [sic] partner’s”.  There is no evidence at this stage to support such an order.  The children’s interests do not require it.

25. The father seeks 4 orders for situations where there is an Apprehended Violence Orders against either of the parents or his or her partners.  The orders are intended to over-ride any such Apprehended Violence Order to permit a permit a person against whom an Apprehended Violence Order has been made to still attend change-overs with the children.  As there are no change-overs under the interim orders, there is no requirement for any such orders.

26. The father seeks orders for the mother to keep him informed of the school(s) the children attend.  Such an order would be contrary to the children’s interests as it would facilitate the father interfering with the mother’s parenting of the boys and undermining her and her role as a parent.

27. The father seeks orders regarding the use of a communication book.  As there is no need for such a book under the interim orders, the Court makes no such orders.

28. The father also seeks orders regarding contact with the children through SMS, e-mail or MSN messenger service.  There are orders that there be no communications between the father and the children and the father has been restrained from any such communication. Accordingly, the orders sought have not been justified.

29. The father also seeks to have the mother keep him informed of her telephone numbers and address.  He seeks orders for him to keep her informed of his information.

30. In the circumstances it would be contrary to the boys’ interests to make an order for the mother to provide such information to the father.  The mother does not seek such information from the father.  If he wishes to provide the information, it is open to him to send that information to the mother’s solicitor.

31. The other orders the father seeks in the application are as follows:

    79. The child representive within 7 days of the orders is to relay all correspondence regarding the children and the mothers legal representive to the father from the 15.03.2007 and all appointments she has had in this time, including outcomes.

    80. Within 7 days [Mr M] is to supply to the court all documents and where about's of the child mentioned in the family report for the final orders hearing, including birth names and mother's details.

    81.Within 7 days all documents pertaining orders made on 15.03.2007 in regards to order 7 and order 9 are forwarded to the father from the Children's legal representive.

32. The father did not offer evidence in support of these orders.  In the circumstances it appears that to make such orders would be to facilitate controlling or manipulative behaviour by the father and undermining of the mother in her role as parent of the boys.  In all the circumstances, such orders are not at this stage found to be in the interests of the boys and the Court will not make them.

33. Accordingly, the father’s Application in a Case filed on 3 September 2007 is dismissed.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate 

Date: 4 December 2007