Yeddich and Meier and Anor (No. 3)

[2014] FamCA 125

FAMILY COURT OF AUSTRALIA

YEDDICH & MEIER AND ANOR (NO. 3)

[2014] FamCA 125

FAMILY LAW – CHILDREN – Interim proceedings – Application by Intervener to, in effect, reverse the current Orders – Application by father for changes to current Orders – Best interests of the child – Protection of the child from harm including physical and emotional harm – Benefit to the child having a meaningful relationship with both parents – Application of Intervener dismissed – Application of father granted in part

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

Dieter & Dieter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Yeddich

RESPONDENT: Ms Meier

INTERVENOR: Secretary of the Department of Family & Community Services

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: PAC 2194 of 2012

DATE DELIVERED: 11 March 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 6 March 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr De Robillard

COUNSEL FOR THE INTERVENER: Mr Anderson

SOLICITOR FOR THE INTERVENER: Secretary of the Department of Family & Community Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rafton Family Lawyers

Orders

1. All orders providing for the mother to spend time with or communicate with the child S are suspended until further order.

2. The Application of the Intervener filed on 4 March 2014 is dismissed.

3. The Application for Order 1 in the father’s application in a case filed on 5 March 2014 is dismissed.

4. The previous orders including the injunctions are to continue except those referred to in Order 8.

5. The mother is to file a Notice of Address for Service forthwith.

6. Dr J is to provide an update report.  The terms of the issues to be considered will be made as an order in Chambers upon the parties reaching agreement and in the event that agreement cannot be reached then leave is granted to the Independent Children’s Lawyer to approach the Court for the matter to be relisted in relation to that issue.

7. Dr J is to be provided with the Orders of 18 October 2013, any applications and affidavits filed, orders made, judgments given and exhibits admitted into evidence since 18 October 2013 together with any other material that Dr J requests for preparation of his report.

8. Any order giving the parties leave to relist the matter is revoked other than the leave granted to the Independent Children’s Lawyer in respect of the matters to be considered by Dr J (Order 6).

9. Personal service on Mr D Meier of the Orders dated 6 March 2013 is dispensed with.  Service on Mr D Meier is to be effected by personal service upon the mother.

10. The mother’s application for parenting orders is to be dealt expeditiously and leave is granted to approach the list clerk when the matter is ready to be listed for hearing.

NOTATION

1. The father’s Application in a Case filed on 20 February 2014 in respect of costs is still to be determined.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yeddich & Meier and Anor (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2194 of 2012

Mr Yeddich

Applicant

And

Ms Meier

Respondent

And

Secretary of the Department of Family & Community Services

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter concerns S, who is 13 years old, (“the child”).

2. The child’s parents lived together for almost two years from October 2003, when the child was almost three years of age, until December 2005, when he was just over five years of age.

3. Since the parents separated there have been two sets of parenting proceedings with Final Orders most recently being made by consent in October 2013.  These Orders include the father having sole parental responsibility for the child, the child living with him and the child spending time with the mother.

4. On Friday 29 November 2013, the child ran away from his home with his father and went to his mother.  For the next nine weeks the child had no contact with his father.

5. On 4 February 2014 the Court made a Recovery Order in respect of the child.  Since that date the child has left his father’s home on numerous occasions and presented himself at a police station.  For the last week or so the child has resided in a youth refuge with the consent of his father.  The child does not want to return home to his father.

6. The Secretary of the Department of Family and Community Services (“the Intervener”), who has intervened in the proceedings, seek interim parenting orders that would see the child return to the care of his mother. 

7. The father seeks interim orders that the child’s time with his mother be suspended for the balance of 2014.

Background

1. The child, who is 13 years old, was born in November 2000.  His parents Mr Yeddich (“the father”) and Ms Meier (“the mother”) lived together for about two years from October 2003 and finally separated in December 2005, when the child was five.

2. Each of the parents has a child or children from previous relationships.  Mr D Meier, the mother’s 30 year old son and child’s half-brother (“the brother”) has a close relationship with the child.

3. On 24 January 2007, Judgment was delivered by Flohm J, who had heard the first parenting proceedings.  The significant matters in dispute between the parties in those proceedings were the mother’s contention that the father had sexually abused the child while the father contended that the mother’s fixed delusional idea that he had sexually abused the child had interfered with the normal development of the father-child relationship since separation and had psychologically damaged the child.

4. For the purposes of that hearing, an expert psychiatric report was obtained, which was entirely accepted by the trial judge.  Her Honour was satisfied that there was no unacceptable risk of sexual abuse by the father, and found the allegations by the father that the mother had emotionally abused the child well-founded.

5. At the time of the hearing, the child had been living with his mother, and had limited contact with his father.  As a result of her Honour’s Orders, the child lived with the father who had parental responsibility for him and spent time with the mother under a regime commencing with limited supervised time leading up to alternate weekends and holiday time when the child was aged 10 years (November 2010).

6. The second set of parenting proceedings, which resulted in Final Orders being made by consent on 8 October 2013, were commenced by the father in the Federal Magistrates Court, as it then was, in May 2012, but were subsequently transferred to the Family Court.  For the purposes of those proceedings, Dr J was appointed as a Chapter 15 expert.

Dr J’s report

1. Dr J’s report was released on 10 May 2013.  It was based on interviews with the father alone, the father’s partner and two of the father’s friends, the mother alone and the child’s brother, Mr D Meier.  Family interviews were also conducted with the father and child and the mother and child and an interview was held with the child alone.  With parental consent, Dr J also spoke with a psychologist, who had provided therapy to the child and father, a social worker and family therapist, who had provided therapy to the child, the child’s two previous school teachers and a psychiatrist, who had treated the mother.

2. Dr J, when reporting on the nature of the child’s relationship with each of his parents described the child as having developed an atypical form of anxious-avoidant attachment style, meaning that he had responded to the lack of adult responsiveness to his needs by becoming self-reliant.  Dr J said that before coming into the father’s care, part of the child’s self-reliance was to construct surreal and frightening fantasies about feared aspects of his life, in particular, about the father.  The doctor expressed the view that this was a way of the child making sense of the extreme and uncontained projections from the mother, and of reconciling them with his lived reality.  He said that the alternative for the child would have been to challenge the mother about her claims, or to conclude that his primary attachment figure was mad, neither of which was a viable solution for this child.  He said that the child had maintained his active fantasy life and that although the fantasies in some way perpetuate anxiety, overall they contain the child’s anxiety and assist self-reliance and self-soothing.

3. Dr J described the father as having a dismissing attachment style, being the adult equivalent of the anxious-avoidant style.  He said the father has low levels of interpersonal awareness and interpersonal skills, particularly regarding emotional attunement and forming empathic connection in relationships.

4. Dr J said that whilst the father-child relationship is an attachment relationship, in that the child does look to the father to meet his basic needs for food and shelter and his developmental needs and that the father meets those needs and is experienced by the child as reliable and non-dangerous in that regard, there is a lack of emotional connection between the father and child which results in the father struggling to meet the child’s emotional needs.

5. On the other hand the doctor said that the relationship with the father was not entirely negative and that when the child moved into the father’s care he seems to have settled quite quickly into a functional routine and that the child’s experience of the relationship when in the father’s care was one of stability and ordinariness.  The doctor thought it likely that the child’s anxiety reduced and the extremes of his fantasy settled as he was not exposed to adult pre-occupation with danger but to responsible, pro-social, disciplined adult behaviour and adult expectations of his behaviour.  It was the doctor’s view that the healing, predictability and normality of the environment provided by the father stabilised the child’s developmental trajectory and probably averted serious de-compensation.

6. On the basis of his interviews and observations the doctor did not regard that allegations that the father had been physically violent to the child were reliable.  When observing the child with the father and his wife, the child presented as comfortable and without apparent inhibition or hyper-vigilance.  The child was able to put forth views that were different to those of his father without reactivity or capitulation and although there was some verbal conflict it was managed respectfully.  When the doctor interviewed the child alone the child was far more negative about the father, though the doctor said that mostly what the child said had features of a constructed negative position, maintained by fantasy rather than one linked to context.

7. The doctor was of the view that the mother had a significant personality dysfunction, and may have a personality disorder.

8. He said that the naïveté and certainty with which the mother had put forth her perspective on the assessment was indicative of a dense denial of her active role in the conflagration of symptoms and conflict involving the child.  He suspected that this denial was mostly unconscious, which was evidence of a marked lack of reflective functioning and personality disintegration that could be called borderline personality function. 

9. He also suspected that the denial was in part conscious, a deliberate attempt to deceive in terms of the degree to which the mother has actively sought to undermine the father’s relationship with the child, and “win back” the child.  This aspect of the mother’s behaviour, he said, might be termed antisocial personality function. 

10. Although the doctor was of the view that the mother appeared to be able to meet the child’s basic needs, and would be able to meet the child’s needs, including his emotional needs, overall, if the child lived with her, there were three areas of concern.  Firstly, the doctor said, the mother will not likely be able herself to foster a relationship between the child and father, or even promote the mental space for such a relationship to exist.  He said that almost certainly if the child went to live with the mother then, he would cut off all contact with his father, and this would be likely to persist at least into his young adulthood. 

11. The doctor said that the cost for the child would go beyond the loss of the relationship with the father, and that the child would carry into his adult personality development an unconsidered black and white view of his complex life circumstances that mirrors that of his mother.  More importantly, he would lose opportunities for personality growth and risk acting out similar processes in his future intimate and parenting relationships. 

12. Secondly, the doctor was concerned that the mother and child may struggle to set up an appropriate pattern of mother-son authority and discipline, noting that, for the child, the relationship between himself and his mother has been idealised.

13. The third area of concern was that the mother’s vulnerability to be paranoid and protective may extend to the child in a way that is not useful to the child, and promotes a similar perspective in him.

14. At the time of the report, the child expressed a strong wish to live with his mother, and not see the father, and when asked by the father whether it was difficult being stuck in the middle between his parents, he responded quickly, “No, I am on Mum’s side.” 

15. The doctor was of the view that the child’s wishes did reflect his idealised alliance with his mother, and were not the outcome that would be in his best interest.  The doctor recommended that the father have sole parental responsibility, and that the child continue to live with the father.  He also made a number of recommendations for a process of therapy to be entered into by all parties, and also that the then-current regime of spending time with his mother continue, with some capacity for the child to express his views about the future, when he is more mature, such as at the end of the 2015 school year.

16. The doctor also recommended that the court make clear to all parties, in particular, the mother and the child, that the court intends to enforce the orders, and will take seriously any breaches.  He said:

    … This might include an ability for the father to enlist the assistance of the police to return the child to him, even if the child does not appear to be at acute risk, and an expectation that the mother use all measures to return the child to the father should the child refuse to leave her home, or present at her home, in breach of orders.

Events subsequent to Final Orders – 8 October 2013

1. After the Final Orders were made, the child resided with his father and spent time with his mother in accordance with the Orders.  The child left his father's home on 29 November 2013 and, instead of going to school, ended up at his mother’s home.  There was no contact between the father and the child since that date for about nine weeks except for some text messages sent by the father.  The child did not attend school at all for the balance of the school year.

2. According to police records annexed to the Departmental Officer’s affidavit, on 4 December 2013 the child presented himself at Suburb M Police Station with his mother and complaints were made initially of a sexual nature and subsequently in relation to an incident in June or July 2013, that is, prior to the consent orders.  The mother was wishing for police to apply for an AVO on behalf of the child and arrangements were made with the Joint Investigation Response Team (“JIRT”) for an interview.

3. The mother and child again attended the police station on 6 December and on 7 December the father contacted police in relation to concerns for the welfare of the child.

4. The JIRT interview took place on 19 December 2013 and when asked by police what the child had come to talk about the child is recorded as having said “I don’t want to go back to my dad’s place” and then recounted an incident where the father was said to have screamed at him on the way to the doctor.  When questioned by police about what was actually said, the child said he had a bad memory.  The child later said his father was always hitting him but he did not remember when he was last hit and was unable to answer questions relating to when events had occurred saying that he did not remember.  The child made allegations that the father grabbed him by his legs and dragged him off a bunk bed causing his head to bleed and that on one occasion he was slapped on the face but the child did not report the matter, telling police that his lawyer told him not to.

5. During the interview the police checked text messages from the father’s phone, none of which were threatening or aggressive but which expressed concern for the child and said that the father was worried about him.  Police determined that no criminal charges would be proffered and the mother was informed that she should contact the Family Court and gain some legal advice with respect to the matter.

6. The father commenced recovery proceedings in December 2013 and the matter first came before the Court on 13 January 2014.  Although the father was in a position to proceed on that date, the matter was adjourned on the application of the Independent Children’s Lawyer, who was concerned that the child had expressed serious thoughts of self-harm if he were returned to his father’s care.

7. During the adjourned period a psychiatrist, Dr L, assessed the child and found that while he suffered from a chronic adjustment disorder due to the ongoing conflict between his parents, he did not find any evidence to suggest that the child had any psychiatric disturbance other than the predicament in which he finds himself.  He said there was no overt psychiatric disorder and he was not particularly concerned that the child was at a high risk of significant self-harm.

8. Upon interview the child made it very clear to Dr L that he loved his mother and wanted to stay with her and did not want to see his father or go back to living with him.  The child told Dr L that his father was mean to him and said that the worst thing that had happened was his father screamed at him, saying “He shouts at me.  He blames me for the wrong directions.  We went whale watching and he blamed me for the wrong direction.”  When asked about leaving home and deciding to live with his mother the child said “They took me away when I was little I was scared of him.  He misses me.  I ran away in December.  I am not going back.  My father keeps sending me message ‘I love you’.”  When asked if anything traumatic had ever happened to him the child said going back to live with his father was traumatic.

9. Other than make recommendations in relation to the wellbeing of the child, which was the purpose for which the report was obtained, the doctor also reviewed the previous reports and concluded in relation to the child’s then current position (that is when he left his father’s care and placed himself with his mother for the first time) as follows:

   The stakes are very high for this child.  If the child remains in the care of the mother it is unlikely that he will have any relationship with his father in the future because of the idealisation of the mother and the collusion from the mother to vilify the father.  It is likely I believe from my experience in medico legal matters and also from reading the expert reports and the material that if the child remains with the mother that he will relinquish any connection or relationship with his father and that this will be severely detrimental to him in the long term.

1. At that stage the issue being considered by the Court was a recovery order, which the doctor recommended be made.  He also recommended that in order to reconnect with the father emotionally the child not have any contact for one month with the mother in any way and that after a month the previous Orders should be reinstated.

2. On 4 February 2014 the Director-General, as he then was, of the Department was joined to the proceedings.  Following submissions, I made a Recovery Order for the child to be returned to the father and that Orders in respect of the child’s time with his mother be suspended until 4 March 2014.  I also made a direction that the mother and any person who had accompanied her to Court on that date, including the child’s brother, were to immediately leave the precincts of the Court and were specifically not to attend the childcare section of the Registry.  These orders were made at 4.50 pm.

Events subsequent to the Recovery Order being made

1. According to the father’s affidavit sworn 5 February 2014, after the Orders were made on 4 February 2014 and the father collected the child from the childcare section of the Court, the father was informed by a security guard at the Court that the mother and friends were waiting outside the front door of the Court and the father and child were taken to the Family Court car park, from where they were collected by a taxi.  There is no contrary evidence before the Court as to these matters and they appear to be undisputed.

2. After Court on 4 February 2014 the father took the child home and observed him as settled and normal.  The father heard the child’s mobile telephone ring at about 10.45 pm.

3. The following day, 5 February 2014, the child dressed for school and went to the bus stop where he normally caught the bus for school at about 7.50 am.  Call records from the child’s mobile telephone indicate that the child sent 26 text messages to the mother’s phone from 8.28 am to 10.43 am.  According to the police records annexed to the affidavit of an officer of the Department, rather than attend school, the child travelled to his brother’s residence and later that afternoon attended Suburb I Police Station with his brother, telling police that he was not happy living with his father and would like the situation changed.  Upon questioning by police, the child reported no recent assault and said he just was not happy living with his father.

4. Late in the afternoon of 5 February 2014 the matter was listed urgently on application of the Independent Children’s Lawyer, who was granted leave to make an oral application to revoke the Recovery Order and make interim parenting orders for the child to live with the mother.  This application was opposed by the father and the Intervener and following submissions was dismissed.  I also made further Orders prohibiting the mother herself or through any person acting on her behalf from again removing or taking possession of the child and providing that if the mother again removes or takes possession of the child personally, or through another person acting on her behalf, she may be arrested without a warrant.  At the time of that hearing, the child was still in Suburb I Police Station.

5. On the evening of 5 February 2014 the father attended Suburb I Police Station.  The father said in his affidavit that when he arrived at about 8.20 pm he saw the mother directly outside of the police station talking on her mobile phone and inside the station he saw the brother Mr D Meier at the entrance of the room from which he could hear the child’s voice.  The mother does not dispute that she attended the police station but says she went to deliver some personal items, including clothing.  The father showed the police the Recovery Order and had a discussion in which police told him that the child did not want to go with him.  The police then suggested a plan under which the father was escorted to his car and asked to drive home, which he did, and the child was taken to his home by police, arriving there at about 10.45 pm.

6. On 6 February 2014 the father allowed the child to sleep in and did not send him to school as the father believed the child would be too tired from the events of the evening before.  In his affidavit, the father described the child as being in a reasonable mood, that he ate some food, talked, watched television and played on the X-box and had a friend over in the afternoon.  At around 6.15 pm the child left the father’s home and did not return.  The father reported the child as missing to Suburb N Police Station and at about 9.00 pm received a telephone call from police at Suburb I where the child had once again presented himself.  Police records indicate that the child did not make any complaint of mistreatment by the father and said that, once again, he had run away and was refusing to go home.  When the father attended the police station the child told him that he would only come home if the father promised that he did not have to return to O School.  The father said he agreed he would find another school as soon as possible and, on that basis, the child agreed to come home.

7. On Friday 7 February 2014 the father says the child refused to get ready for O School and the father immediately began making enquiries to enrol the child in another school.

8. On Saturday 8 February 2014 the child was at home with the father during the day, a friend visited and the father says the child appeared to be in a reasonable mood.  At around 6.30 pm the father noticed that the child had disappeared and after looking for him reported him missing to Suburb N Police Station.  Once again, the child presented himself to Suburb I Police Station at about 8.00 pm stating that he had run away from the care of his father and was refusing to go back.  There is no record in the police records of any complaint by the child about any maltreatment or the father’s misconduct to police and the child stated, as he had previously, that he wanted to stay at his grandmother’s.  The father collected the child from Suburb I Police Station at about 10.30 pm.

9. On Sunday 9 February 2014, according to the father, the family went on a family picnic and the child appeared to enjoy himself.

10. During the week commencing 10 February 2014 the child refused to attend school at O School each day and refused to put his uniform on.  The father took steps to have the child enrolled in both Q School and T School.

11. On about 16 February 2014, according to their affidavits, the father and his wife purchased a kitten for the child.

12. On Monday 17 February 2014 the father was informed that there were no vacant positions in Q School and an interview at T School was arranged for 19 February 2014.

13. On 19 February the child attended the interview with his father and was accepted and commenced school on that day.  After school, the father says he and the child went clothes shopping and had a meal together.

14. On 20 February 2014 the father attended the uniform shop at the school and purchased the child a school uniform.  The child attended at T School on Thursday 20 and Friday 21 February 2014 and appeared to the father to be getting back to normal and to being reasonably content.  The father says the child told him he liked the school and had friends there and he heard the child talking to friends on the phone saying he liked school.

15. On Saturday 22 February 2014 the father asked the child to get dressed for Ethnic School, which he had previously attended on alternate Saturdays when in his care.  The father says the child refused and the father was unhappy with the child’s response, but it does not appear that he required the child to attend.

16. The father says that later in the day the child asked if he could have a friend over to which he agreed and that they played together at the home between about 1.00 pm and 4.00 pm.  In the evening the father, his wife and the child went for dinner at the home of friends.  The child had said he did not want to go but the father insisted and the child complied.  There is a dispute about the events of this evening with the father’s version being that he told the child that he had to get in the car and that about 10.30 pm the child asked to leave but the father asked him to wait 10 or 15 minutes and that it was otherwise uneventful.

17. According to the father, Sunday 23 February 2014 was uneventful.  A friend of the child visited and the father took the two of them to a local swimming pool where he supervised them during the afternoon.  On 23 February, according to the call records from the child’s mobile phone, 12 text messages were sent to the mother’s mobile phone between 11.05 pm and 11.16 pm.

18. On Monday 24 February 2014 the father drove the child to school.  The father also went back to the school on his way to work as he had discovered that the child had taken two tablet computers to the school, contrary to the home and school rules.  At the school the father asked the child to give him the two computers and the child complied.

19. The child made three phone calls to his mother’s phone between 3.28 pm and 3.29 pm on that day.  The father spoke to the child by telephone at home at 5.30 pm and when he telephoned again at 7.30 pm the child could not be located by the father’s wife.  The father went to Suburb N Police Station and reported the child missing and received a telephone call from Suburb I Police at about 10.15 pm and was told that the child was at the police station and was being interviewed.  The father rang the police and told them he was coming to collect the child, but according to the father, a police officer informed him that the child had alleged the father had scratched him and that the Intervener had made a decision to take the child into their care overnight.  The father says the police officer also told him that the child was at the police station with his brother Mr D Meier.

20. The Intervener had not taken the child into care at that time, or any time subsequently to date.  Shortly after 1.00 am on 25 February an officer from the Crisis Response Team of the Department telephoned the father, who consented to the child staying in a refuge for the night.

21. On Tuesday 25 February the father attended the offices of the Department and was informed that a Provisional Apprehended Domestic Violence Order (“AVO”) had been made against him on behalf of the child.  The AVO prohibited the father from assaulting, molesting, harassing, threatening or otherwise interfering with, intimidating or stalking the child.  The father has not been charged with any offence.

22. There was a mention in the AVO proceedings in the Local Court on … March 2014 and the matter was adjourned to … March 2014, with the provisional Order continuing in the same terms on an interim basis with the consent of the father.

23. The father says that the Departmental officer suggested that the child be placed in the care of a member of the maternal family, but that he did not consent to this.  The father repeatedly told Departmental officers that the child should be returned to his care in accordance with the Recovery Order, but this did not happen.  He said in these circumstances he agreed to the child continuing in emergency refuge accommodation until 4 March 2014 and he then continued to consent until today.

24. According to the child’s statement to police on Saturday 22 February 2014 the father swore at him when he said he did not want to go out with the father and his wife and that they had a verbal argument at around 2.00 am at the home they were visiting.  The child told police that the father screamed at him and about half an hour later struck him on the right knee, pinched him on his stomach, struck him on the arm and grabbed his right arm, scratching it with his nails, causing it to bleed, as well as verbally abusing him.  According to the application, police observed a small scratch on the child’s right hand below his thumb.  When asked, the child said that similar things and worse things had happened to him before and that he was scared of the father because he hits him, swears at him, calls him names and torments him.  He said that last year was the last time something like this had happened prior to Saturday.

25. The father denies harming the child in any way.

The contested facts

1. In addition to the uncontested facts, in accordance with the decision of SS & AH[1], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George and George[2], which also cites the Full Court decision of Dieter & Dieter[3]).

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

3. In Dieter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and the Full Court said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. Consideration must be given to the contested facts, because each of the parties supporting the order sought by the Intervener relies to a significant degree on the allegations the child makes – that he was assaulted on the 22 February 2014.  It is this event that caused the police to apply for an AVO for the child’s protection, and which caused a change in attitude in the Intervener as to the risk to the child in the father’s care.  It is also a matter of great significance for the Independent Children’s Lawyer in the orders sought.

5. In terms of weighing both the probabilities of the event having occurred and the severity of the impact if it did occur on the child, I make a number of observations on the undisputed facts. 

6. Firstly, there is a plethora of evidence that the child has had an active fantasy life for many years and in the opinion of Dr J those fantasies relate, in particular to the father, and have been constructed as a way for the child to make sense of the mother’s projections and his lived reality.  Dr J said that the child’s surreal fantasy and construction of the father extended, at times, to the point of delusional misrepresentation and gave the example that the child said to a school counsellor in 2006 that the father “killed my daddy and cut the skin off him and wears it to try and get me”.  He also said that the fantasies operate to assist the child’s self- reliance and self-soothing.

7. Second, the child has had a long history of making similar complaints to police and others, but is also well-documented as not being able to provide context and detail when pressed.  This allegation has some of those features, especially when the child speaks of similar and worse things that have happened to him before. 

8. In my view, this allegation in relation to the physical assault is similar to those that the child and his mother have been making over a period of many years, none of which have resulted in the father ever being charged, nor has he been charged in this instance. Over the years many of the complaints appear to have been exaggerated, consistent with the fantasy this child has constructed. 

9. Allegations of harm said to have been perpetrated by the father have also characterised this matter from when the child absconded from his father’s care in late November 2013, when the mother presented at the police station, but have not been necessarily been consistently made, for example, in the interview with Dr L.

10. This allegation is quite extreme, with the child alleging that the father scratched him on his arm, causing it to bleed, whereas he was only able to show police a small scratch on his thumb.  

11. Further, the events are said to have occurred on 22 February 2014 and yet the child did not report them until 24 February 2014, even though this is a child who very readily presents himself to police and makes complaints.  On the intervening day, according to the father, the child had a friend visit and the father took the two of them to a local swimming pool.  The reporting to police also followed the child having made three phone calls to his mother, prior to leaving home.

12. Taking all of these matters into account, I cannot be satisfied that the events occurred to the standard required.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].

   [4] (2006) FLC 93-286, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of children are met in particular ways, such as:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   …

3. The principles underlying these objects include “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development …” (subparagraph 60B(2)(b)).

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Framework for interim applications

1. In Dieter (supra), to which I have previously referred, the Full Court said when making an interim order a Court should also have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the child under consideration.

2. Ordinarily the first issue to be considered in interim proceedings, after having identified the competing proposals, identified the issues in dispute, identified the agreed facts and given consideration to the contested facts, is the issue of parental responsibility.

Parental responsibility

1. Under section 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

2. However, the presumption does not apply when the Court is making an interim order if the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order (section 61DA(3)).

3. In this case, parental responsibility is currently vested in the father.  No application is made for shared parental responsibility and there are many factors that will require resolution prior to determining that matter.  In these circumstances, I do not consider it appropriate for the presumption to be applied.

Section 60CC considerations

1. Section 60CC sets out considerations for the Court to take into account in determining what order is in the best interests of children.

2. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Each of these considerations are central to the dispute in this matter.  It is the Intervener’s position, which is supported by the mother and the Independent Children’s Lawyer, that the only way to facilitate the child having a relationship with both of his parents is for him to reside with the mother.  To a great degree these submissions are based on Dr J’s report. 

2. As set out in the extracts above, it is the doctor’s view that when the child was separated from his father prior to the first proceedings, he was exposed to his mother’s pre-occupation with the father’s dangerousness and developed an ability to enthusiastically join the mother in elaborating accounts of the father’s misdeeds.

3. The doctor also says that after the first set of proceedings, when the child spent little time with his mother, the child developed the idea that the father had taken him away from his mother and had driven false accusations of mental illness against her.

4. The child, in the doctor’s view, experienced stability with his father and, if the father had not had to compete with the mother, he would have proven adequate for the child’s emotional and relational needs.

5. However, Dr J described a lack of emotional connection between the father and child resulting in the father struggling to meet the child’s emotional needs and described life with the father as emotionally barren and lacking intimacy in comparison with the mother, who is passionate, protective and elaborated.  In the years after the first proceedings, when the child spent little time with his mother and missed her, the doctor said that for the child the mother would have been part of his idealised fantasy world, rather than an alternative reality.

6. When the child’s time with his mother increased and he spent full weekends and long holiday periods with her, this, in the doctor’s view, led to a shift in the child’s perception of his relationship with the mother from fantasy to reality.  As this occurred when the child was on the threshold of adolescence, the doctor thinks it likely that the child felt more strongly the father’s lack of empathic attunement and coupled with the influence of the mother’s disrespect for the father the child began to push against the father’s authority.  However, when the interviews were carried out by Dr J 12 months ago, he was of the view that there remained a foundation of positive connection between the father and the child that had been enhanced by the arrival of the father’s partner.

7. The doctor described the child’s relationship with the mother as a yearning for warmth and connection and, in his mind, as an idealised denied possibility.  He felt that the contact regime, whilst being beneficial in that it allowed the child to spend regular time with the mother, had created an artificially positive impression in the child’s mind of his relationship with the mother and the mother’s capacity to meet his needs.

8. Dr J felt that the father did not have the capacity to provide a foundation of love, care and understanding sufficient to assist the child to adapt with what the child experiences as ongoing deprivation from engagement with the mother and that if the status quo were maintained the child’s process of emotional investment in the relationship with the mother and disengagement with the father is likely to continue, the child’s verbal and behavioural disrespect to the father will escalate and the father’s response will further disrupt the child’s relationship with him.

9. The doctor expressed the view that if the Court reduced the child’s time with the mother, this would not make the father any more capable of dealing with the child as the pull towards the mother is now mostly with the child, not the mother, and had been built up over two years (as at the time of the report) of positive weekend experience in the child.  He added that part of the problem for the father, is that the child blames the father for taking him from the mother and any reduction in time with the mother will add legitimacy in this belief in the child that up to now has been misguided.  On this basis, it is submitted by the Intervener that the order sought that the child reside with the mother is the only way of preserving the relationship between the child and the father.

10. The father submits that the events that have transpired since Dr J’s report and, in particular, since the child left the father’s home in late November 2013 and lived with his mother until the Recovery Order was issued, demonstrated that making orders as proposed by the Intervener would, in fact, ensure that the child does not have the benefit of any relationship with his father at all.

11. During the nine weeks in which the child was, albeit as a result of his own actions, in the care of the mother, there was no contact between the child and the father.  There is no dispute that the father sent text messages and the police records indicate that police looked at them and found nothing of concern, and the child himself even complained to Dr L that his father would send him messages about how he missed him but he ignored them.

12. Dr L, who was aware of the previous expert and other treating psychologist reports as well as the recent circumstances, described the stakes as very high for this child and recommended that in order to reconnect with the father emotionally that he not have any contact for one month with the mother in any way.  Whilst that was attempted to be achieved during the previous month, it is clear that the child made regular contact with the mother directly via text messages and telephone calls to her and it would appear indirectly through his brother Mr D Meier.  At times this contact was proximate to the child having a disagreement with his father and was at an intense level and was associated with in some cases him absconding.

13. I cannot conclude that the emotional relationship between the father and the child is a good one, but they do appear to have what was described by Dr J as “a foundation of positive connection”.  Even in recent times since the Recovery Order was issued and the child was living with the father, he was, on the evidence before me, meeting the child’s basic needs and was also able to facilitate the child’s return to school by enrolling him at a new school at the child’s request.

14. There appear to be clearly risks that if the child remains living with his father, and in particular if he has no contact with his mother, the child’s verbal and behavioural disrespect to the father will escalate and the father’s response will further disrupt the child’s relationship with him as predicted by Dr J.  On the other hand, if the mother can abide by the Court Orders, the Independent Children’s Lawyer can explain the Court’s role to the child in making the orders so that the blame attached to the father for the current situation may be minimised and the child can receive psychological support in relation to his position, the situation may be able to improve.

15. The Independent Children’s Lawyer essentially submits that these are matters for the longer term, if it is the case that the parenting Orders are revisited, as does the Intervener.  Both are more concerned with the child’s immediate needs.  However, I am mindful that this is an interim order and I must consider the time frame within which the interim order will operate.  It may be a matter of some months before any parenting proceedings may be heard, if the proceedings are to be reopened, and I anticipate that at the very least an update report from Dr J or a report from another expert will need to be obtained.

16. A matter of some months is significant in the life of an adolescent child, especially a child embroiled in such intense conflict between his parents.  The events since late November 2013 have demonstrated how much can change in a matter of months.  Prior to the child absconding, it appears that he was reasonably well-settled with his father and step-mother.  Dr J’s report released in May 2013, whilst certainly expressing concerns about the father’s incapacity to meet the child’s emotional needs, still recommended the father as the residential parent as he appeared, in the view of the doctor, to represent less risk to the child in an overall sense than the mother.

17. The second of the primary considerations is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  One relevant consideration in this matter and one to which the Independent Children’s Lawyer in particular attaches weight is the allegations made most recently by the child as to the father assaulting him on the weekend of 22 February 2014.  For the reasons I have given, I do not attach much weight to the allegations and do not consider that the need to protect the child from physical harm is of great concern in this matter in all of the circumstances.

18. So far as psychological harm is concerned, most unfortunately for this child, he is at risk of psychological harm in each of his parent’s homes as each fail, on the evidence before me, to meet an aspect of his emotional needs.

19. Section 60CC(3) sets out additional considerations and I will refer to those which are relevant in this case.

20. The child in this matter, who is aged 13 and who has been described as pseudo-mature, has expressed very strong views for many years and it is submitted by each of the parties who support the Intervener’s application that significant weight should be attached to them.

21. It is said by Mr Anderson on behalf of the Intervener that the current Orders provide for the child, in any event, being able to choose with whom he will reside at the end of 2015, and that it is an impingement on his rights to require him to reside with his father when he clearly does not wish to do so, and that this circumstance is punitive.  

22. Mr Brown on behalf of the father submits that in giving effect to the child’s wishes, whilst it may be easier for everyone involved, would mean that a pseudo-mature 13 year old will effectively decide the matter.  

23. At the time of Dr J’s report the child had already been expressing the strong views, he still holds, for a number of years.  Dr J was of the view that, despite his concerns about the father’s incapacity in relation to the child’s emotional needs, it was almost certain that if the child went to live with his mother he would cut off all contact with his father.  This, Dr J said, would have the effect of going beyond the loss of the relationship, as it would detrimentally affect his adult personality development, cause problems within the relationship with his mother, as it has been idealised, and the mother’s vulnerability to be paranoid and protective may also extend to the child. Dr J’s detailed report concluded that the capacity for the child to express his views about the future should commence when he is more mature, such as at the end of the 2015 school year.  Dr L also expressed the view that if the child remains with the mother that he will relinquish any connection or a relationship with his father, which will be severely detrimental to him in the long term.  

24. Having regard to the expert evidence and particularly that of Dr J, the history of the matter including the persistent history of the child’s views, I do not attach weight to his views as they appear to be contrary to his best interest.

25. A number of features of the relationship between the child and his parents have already been outlined with respect to the primary consideration above. 

26. The only other significant people in his life, who are relevant in this regard, are the child’s brother Mr D Meier and to a lesser extent the maternal grandmother, both of whom are important in the child’s life.  The orders sought by the father will not foster these relationships, whereas the Intervener’s proposed orders in all likelihood will.  However, in my view, given involvement of the brother in effectively facilitating the child to place himself in breach of the Court Orders, especially after the Recovery Order was made, I have real concern about the utility of that relationship to the child in the current circumstances in that it fails to assist the child to adjust to his environment.

27. The likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent or a child or other person with whom the child has lived is concerned, is a very relevant matter.  The likely effect of the Intervener’s proposed order, in my view for the reasons given above, will be a complete cessation of the relationship with the father.  The father’s proposed order, or one which involves no contact with the mother, will not, in my view, on the basis of the evidence especially of Dr J and Dr L, damage the relationship with the mother in the long term, and if the psychological support the child requires and an explanation of the Court Orders is given, it may even improve the relationship with the father until the proceedings are reopened, if that does occur.

28. In relation to the capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs, in addition to the excerpt from Dr J’s report about the relationship, I also refer to other matters from his report.  According to Dr J, before coming into the father’s care, the child was self-reliant in that neither of his parents had responded to his needs as a very small child and he retreated into himself.  In circumstances when the child had increased contact with his mother, the doctor said that in validating and amplifying the child’s idealisation, without any attempt to temper it or to assist the child to engage positively with his current home, the mother was also not meeting the child’s need to adapt to his current environment.  He said that she has not been able or willing to accept reality for the sake of the child but has been living out her own grief and distress through clinging onto and amplifying this idealised threat of connection with the child.

29. The doctor was of the view that a big change occurred in 2010 when the child started to spend full weekends with the mother and the child clearly valued the emotionally expressive affection the mother shows for him and appeared to the doctor that they spent constructive and collaborative time together.  The doctor said that it appeared to him that the mother had proven over the last two years (at the time of the interview) to be capable of meeting the child’s basic needs for food, shelter, engagement and relational connection in the context of a shared weekend.  He said that the child’s relationship with the mother, which had been idealised over the past years, had become real and had proven quite positive.

30. The father had shown an attitude of commitment to the child and responsibilities of parenthood and, in the view of Dr J, had the capacity to meet the child’s basic developmental needs for facilitation of a daily routine, school attendance and discipline and, in his view, had met those needs and was experienced by the child as reliable and non-dangerous.

31. It is submitted by the Independent Children’s Lawyer that the father currently fails to meet the child’s basic needs in that he cannot ensure that the child remains in his home.  This has not, in my view, been due to any incapacity in the father, but rather in the child making his own decisions and it would appear assisted in some way by his brother Mr D Meier.  In my view, the evidence, especially of Dr J, is also that the mother has not been able to meet the child’s need to adapt to his environment, that is, to remain living at his father’s home.

32. In my view there are also some concerns demonstrated by each of the parents in relation to the attitude to the child and the responsibilities of parenthood.  The father’s inadequacy in meeting the child’s emotional needs have been attempted to be met by the father by providing psychological support in the past but, in light of Dr J’s report in particular, it would not be unreasonable to expect the father to obtain his own assistance in developing an appropriate emotional connection with the child for the child’s benefit.  There are also the concerns, to which I have just referred, in Dr J’s report that the mother has not assisted the child in adapting to the reality of his life in accordance with the Court Orders. 

33. Having regard to the objects and principles of the Act, the relevant principles with respect to interim orders, especially where there are issues of risk to the child having been raised and applying the undisputed evidence, and particularly the evidence of Dr J, which the Intervener and mother and Independent Children’s Lawyer clearly themselves rely upon in their submissions, albeit that Dr J’s evidence is untested, the best interests of this child, in my view, do not suggest that the orders sought by either the Intervener or the father should be made.

34. However, in light of the likely period of the interim order, that is, until a consideration is given to the mother’s application (to reopen the proceedings), orders in the terms sought by the father, are in my view in the best interests of the child and are made until further order as opposed to for the period sought, which was at the end of 2014.

35. Accordingly, I make the orders in terms of the father’s application but instead until further order.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 March 2014.

Legal Associate:      

Date:    12 March 2014