Zane and Ikeda

[2019] FCCA 1385

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZANE & IKEDA [2019] FCCA 1385

Catchwords:
FAMILY LAW – Interim application by father for urgent change of residence – trial in approximately three months’ time – unacceptable risk of psychological harm in the mother’s care – mother undermining father’s relationship with the children.

Cases cited:

Stott & Holgar and Anor [2017] FamCAFC 152

Applicant: MR ZANE

Respondent: MS IKEDA

File Number: MLC 3391 of 2018

Judgment of: Judge Harland

Hearing dates: 20 & 21 May 2019

Date of Last Submission: 21 May 2019

Delivered at: Melbourne

Delivered on: 21 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Glezakos

Solicitors for the Applicant: Kenna Teasdale Lawyers

The Respondent: Appearing in person

Counsel for the Independent Children’s Lawyer: Mr Easteal

Solicitors for the Independent Children’s Lawyer: Taft Lawyers

ORDERS

1. All previous parenting orders be suspended.

2. The children, [X] born … 2010 and [Y] born … 2007 live with the father.

3. The mother be restrained from making any contact with the children in person or by any form of communication, including email, text, WhatsApp, FaceTime and any other similar application.

4. The mother be restrained from attending the children’s school and after school care at any time.

5. The mother be restrained from allowing any other person to contact the children on her behalf by any means whatsoever.

6. Pending further order, the father be granted sole parental responsibility.

7. The father be permitted to provide a copy of these orders to the children’s school and Victoria Police.

8. The parties be permitted to give a copy of these orders and reasons to any therapist they engage with.

9. The Independent Children’s Lawyer provide a copy of these orders and reasons to Ms A before the next appointment.

10. The Independent Children’s Lawyer be granted leave to list the matter at short notice.

11. The children go home with the father from the childcare facility at the 5^th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria.

12. The mother must leave the Commonwealth Law Courts, 305 William Street, Melbourne Victoria before the father takes the children home today.

AND THE COURT NOTES THAT:

A.The matter was listed for Interim Defended Hearing on 20 May 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3391 of 2018

MR ZANE

Applicant

And

MS IKEDA

Respondent

REASONS FOR JUDGMENT

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

2. This is the father’s urgent application in the case seeking to change the children’s residence from the mother’s care to his pending the final hearing, which is scheduled to take place in approximately three months’ time.

3. Before turning to the parties’ submissions and affidavits that they relied on, it is worthwhile referring to the family report in this matter, which was prepared after the first return date last year. Ms A released the report dated 23 May 2018 and is scheduled to see the family for an updated report in two weeks’ time.

4. She identified the issues in dispute as being how much time the children were to spend with their father, concerns about mental health and drug use, historical allegations of family violence, the children’s exposure to legal documents and processes, the mother’s views and wishes and the weight to be given to the children’s views. She recorded that during the relationship, the father was the primary income earner and the mother was the primary parent. At paragraph 19, she records that the father told her that [Y] has reported to him that she is afraid of the mother and tells lies to appease her. He also expresses concerns about the children saying things to him like “Why is he keeping them out of the house?” and he expresses concern about the mother being unsupportive of his relationship with the children. He refers to a number of concerning comments that the children have made to him, including talking about the court proceedings, asking him why he kicked them and their mother out of the home, why he is taking their mum and them to court and why he is saying that their mum is taking drugs. At the time of the report, the father had not seen [Y] for about 11 weeks and had seen [X] for two hours at Easter. He spent the day with the girls on a Saturday prior to the report after I made orders on the first return date and he told Ms A that, initially, [Y] was quiet and then started quizzing him about the court proceedings. The father said that he told [Y] that she was asking about adult things and he could not answer her.

5. Ms A describes the mother as being self-aware and prepared. She described the mother as being highly critical of the father throughout the assessment, both as a partner and a father. She complained that the father frequently made inappropriate comments to her and the children and she said that when [Y] was three, he hit [Y] on the head with his fist when she rode his bike near his car. I note there is some concern that [Y] refers to that incident when she was interviewed by a report writer and I will return to that. The mother says that the father was abusive, screaming and making threats in front of the children and she says that she called the police on multiple occasions, but was worried about the consequences and did not press charges.

6. At paragraph 47, the mother emphasised to Ms A that she had been careful not to talk to the children about inappropriate matters and made an effort to take calls from the father and her lawyer outside of the hearing of the children. She said she did not know how the children knew about the court orders or the father’s concerns about her possible drug use. She then said that they may have read the orders on the kitchen table, but that they have not had any opportunity to read the father’s affidavit in detail. Ms A found the mother’s explanations in this regard inconsistent and she recorded the mother saying that she has been supporting the children seeing their father and supporting the children’s reconciliation with their father.

7. The mother said that on the visit before the family report interviews, [Y] texted her multiple times saying she did not want to be there and she described [Y] as being the most affected by the relationship breakdown. [Y] was 11 when Ms A interviewed her. [Y] described herself as an anxious person said she was anxious about being interviewed and she was anxious and angry about the separation. She said that she had had a positive relationship with her father pre-separation, but post-separation, she is very angry with him. She talks about the father yelling at the mother about three times a week in the last six months prior to her parents’ separation.

8. Paragraphs 58 to 60 of Ms A’s family report is concerning in that she records [Y] telling her that she was uncomfortable seeing her father the previous Saturday. Then Ms A writes:

   She proudly announced that on the previous Saturday ‘I didn’t talk to him all day’ and [Y] smiled when she shared this information with the writer, which indicated the level of incongruence between her statements and demeanour.

9. She then records [Y] recounting the father hitting her on the head when she was three and telling her that, following that event, the father took tablets to keep calm and to stop him from becoming angry. [Y] told Ms A that she asked him if he was taking his tablets. What is concerning about this is that it is mimicking what the mother had told the report writer. Ms A records that when she asked [Y] about how she knew about the medication, she responded, telling her that her mother does not discuss adult issues with her. She described [Y] as appearing emotionally burdened and confused as she tried to give Ms A negative information about her father whilst at the same time explaining that this information did not come from her mother.

10. [X] was seven at the time of the report and presented as talkative and confident and she said she did not know about the separation, that it just happened and that she felt sad and hurt about it and said that her mother was angry with her father because he said mean things about her. She said she had not heard her parents argue, but she had been told that her father called her mother fat. She was not sure why she was not seeing her father after the separation. Concerningly, Ms A records that without prompting, [X] told her that her mother does not talk to her or [Y] about adult issues.

11. [Y] also said she was uncomfortable with her father, because when she needed to go to hospital, her mother went with her and her father kept gardening and she was not sure when that occurred. Again, that is mimicking what the mother had said.

12. Ms A also records the mother saying in front of the children at the assessment that [Y] was not comfortable in spending two hours with her father whilst the mother was being interviewed, as though another family member cared for the children. During the observation, [X] engaged warmly with her father and they played together and she records that the father was child focused, while [Y] sat aside and ignored her father. She records the father inviting [Y] to join play, but not being intrusive.

13. Ms A refers to the contradictory accounts of family violence given by the various family members and said that it suggests that most of the conflict was verbal, with possible emotional abuse around the time the parents were separating. At paragraph 87, she said that there appeared to be a shift in the mother’s understanding about the harm being done to the children being exposed to her negative views about the father. She then said that the mother did not concede that the children had been exposed to her negative views, but provided inconsistent explanations as to how the children had obtained information and emphasised that she had not exposed the children to adult issues. Ms A found that it was likely that the children had been excessively exposed to the mother’s views and wishes and that that was having a detrimental impact on their emotional and social wellbeing. However, she thought that it was likely that the mother had become more aware of this since the matter was last in court, on 8 May 2018, and that given her recent insight, she was hopeful that the incidents may reduce over time and recommended that the children spend overnight times with their father on alternate weekends and that the family engage in family therapy to assist with communication and conflict resolution skills.

14. When the matter next came before me on 3 July 2018, orders were made increasing the father’s time and order 5 restrained the wife from communicating with the children or either of them by telephone, text message, email, WhatsApp, Facebook, Instagram or any other application whilst in the father’s care, except by prior written agreement. On 24 September 2018, further interim applications were made by consent in chambers. The matter next came before me on 14 May 2019 with the father’s urgent application to change residence and on that occasion, I ordered the urgent appointment of an Independent Children’s Lawyer and listed the matter for further hearing yesterday.

15. In the father’s supporting affidavit for his application to change residence, he says that he has not been able to see [Y] at all since Tuesday, 19 March 2019 and has only seen [X] during the day and expresses concerns for the children’s psychological and emotional wellbeing in the mother’s care. He outlines problems that he has encountered with the orders made in July 2018 and these problems date back to just a couple of weeks after those orders were made. He talks about, for example, on 24 July 2018, [Y] refusing to spend time with him, saying that she would run away from school, and [Y] also telling him that she could ring her mother any time and that her mother had told her not to listen to him. On 3 August 2018, he says he overheard the girls when they were in their room. He heard [Y] saying “this is not a safe environment” and that [Y] then came out of the room and told her father that he was in big trouble and she had called her mother, who was calling the police. The police attended the father’s home a short time later, saying they needed to sight the children, presumably to do a welfare check. The father says that that visit by police scared [X] in particular. He describes another incident on 21 September 2018, which is also referred to in the police records, which I will address later.

16. One of the difficulties with the father’s affidavit was that he made several references to text messages between the mother and [Y] in particular but did not annex those messages to his affidavit. He has since filed a further affidavit annexing those messages and the mother has filed a further affidavit in reply.

17. Turning to that second affidavit and the text messages, there is a concerning pattern in those messages of the mother communicating with [Y] whilst she is in the father’s care and what is of most concern is the content of those messages. I am not going to recite all of them, but what they indicate is a concerning pattern of the mother encouraging [Y] to play up for her father and ask to go home. What is really concerning is that there is a consistent pattern of these types of messages for the past several months. Early examples include the mother telling her not to show the father that it is her on the phone and that she should start coughing and saying that she feels sick and wants her own bed. [Y] reported that she said that to her father and that her father had said that he was there for her and the mother saying that she should say “I just want my bed. It’s not that hard to say” and [Y] replying that she would try and then further replying that the father said he would look after her. There are other messages where the mother asks her to delete the messages from the phone. There is a message where [Y] reports to her mother that the father told her that he would take away the phone and next time no phones would be allowed and so she told him that she would call the police. The mother replies – and this is in July 2018 – that the orders do not say that she cannot have a phone, so she should let him try.

18. And what is concerning about these early messages is that quite apart from the fact that it appears to be in breach of order 5 of the orders made on 3 July 2018 – and the important point there is that it is about the mother initiating the communications with the children – but it is the attempts by the mother to undermine the children’s relationship with their father and also involving [Y] in the dispute and quite plainly telling her that the orders do not say that she cannot have a phone, for example.

19. There are messages in September where [Y] has asked her mother to pick her up, the mother saying that she will come and get her and also telling [Y] to make sure she deletes the messages from both phones. Concerningly, a message that just says:

    Make sure you tell them everything. Swearing, yelling, finger in your face. Everything.

    And then saying:

    Delete messages from me.

20. There are then texts which appear to be the mother encouraging [Y] to message her father, saying that their mother asks every day if they want to call him, but that they are still angry with him and that they do not want to, and this is in March 2018. Then there is a message where [Y] says:

    Don’t even try to text or ring me.

    She calls her father a “shit father” and complains about the father keeping her phone and asks about her Goosebumps books and makes other complaints about him and refers to him as “Mr Zane” and not “dad”.

21. The mother refers to the text messages in her affidavit of 6 May and 20 May and says that where she was quoted as saying “It’s not that hard to say and speak calmly,” for example, she was just encouraging [Y] to express her feelings to her father. The mother annexes to her affidavit a handwritten note from [X] complaining about her father and says that she found that note in [X]’s bag, written on the father’s work letterhead. She says that the messages sent in September were trying to reassure [Y] after there had been several incidents whilst in the father’s care. The mother also says that the father has shown damaging messages, but not messages of no substance.

22. She also says that the father has known about the communication between them all throughout and in this regard, exhibit B, which the mother relied on, is a letter from her lawyers to the father’s dated 13 March 2019, which the mother says supports her contention that the parties have been communicating freely for the past six months. That letter says that:

    The mother’s instructions are that the parties have enjoyed a successful co-parenting arrangement for six months and that both are working well together for the benefit of the children.

    It seeks to discharge order 5 of the orders made on 3 July 2018, noting that the children have been communicating with the mother during their time with the father with the father’s consent.

23. I observe that, certainly, the parties’ affidavits and the text messages do not indicate a cooperative co-parenting relationship. That letter contains the assertion from the mother that they are cooperating and the father consents to her communication with the children, but does not indicate that the father agrees with that proposition.

24. What is also apparent is that in recent months, things have escalated. On 18 March 2019, the girls went to after school care for the first time and the father was due to collect them. The mother does not use the before or after school care service. The father says in his affidavit that when he collected the girls, [Y] was complaining that he was not allowed to put them in after school care, as that was not in the orders and that the girls rang the mother and were telling him that the orders do not say that and the mother was on the way to collect them. The father says he rang the police, as the mother had told him that she was on the way to his home to collect the girls and the police attended and spoke to both girls.

25. One of the other troubling aspects of this matter, which I will turn to now, is the children’s involvement with the police. Exhibit A is the subpoenaed records produced by Victoria Police. They included the statements that the mother made to the police, as well as the girls’ statements. The mother also had annexed the girls’ statements to her affidavit of 6 May 2019. In the mother’s statement to police, she refers to the girls returning home from a visit on 29 September 2018 and complaining that the father had been hitting them and that [Y] printed out an account from her computer about her times with the father and the mother told [Y] that she was not going to read that and took the children to the police station to make a report. Following the statements, there is a series of typed entries that are a series of [Y]’s complaints about her father. In [Y]’s statement to police – I note this is a statement that she gave and signed – she says that she does not call the father ‘dad’, as he does not deserve it, and complains about the father yelling and pushing them around. [X] complained in her statement to the police that her father’s nice to them when other people are around, but not when they are alone and complains about the father giving them things and then taking them away and putting her phone out of reach.

26. There are several police entries which include an entry on 21 September 2018 referring to the father attending school to pick up the children and the children trying to run away and refusing to get back in the car. This is an incident where [Y] complained about the father grabbing her arm and hurting her arm and forcing her into the car. The police record the girls screaming at the father and that the father grabbed [Y]’s backpack in an attempt to get her in the car as she tried to run away. Then the father took her by the arm and put her in the car. [Y] then contacted her mother, saying the father was abusing her, and the police spoke to the mother and they record that the mother wanted the father charged and the police telling the mother that they would not charge him and that they believed the children were safe in his care.

1. They referred to the father pulling [Y] into the car as she tried to run away. The police note that, in their view, the mother has tried to get the police to apply for an intervention order with the children named due to it being before the family law courts and that they were not concerned about the father grabbing [Y] to stop her from running away and that they did not sight any visible injuries on her. The police entry on 29 September 2018 records that both parents call the police on a daily basis with respect to the each other’s behaviour and that the children are the focus of the dispute between them. They refer to the types of incidents that [Y] recorded in her statements and said that the list of incidents were describing issues where the father was trying to parent the children, which resulted in argument with [Y]. The police did say that the sixth incident referred to the father swearing at the children and the police noted that they would contact SOCIT and DHHS.

2. The entry further records that the police took statements from both girls with the assistance of a support worker and they record the following:

   Both girls spoke as if they had been instructed, coached by their mother on what to say as they gave repeated and vague accounts of the same times where the respondent has yelled at them, pushed them into their rooms, but could not provide much specific detail as to the actual abuse.

   The accounts showed a consistent theme of the father trying to parent the children and using lawful chastisement to get their cooperation, such as taking the phone away from them and that neither child made any account of the father swearing.

3. There was another incident on 10 October 2018, where [Y] complained that the father yelled at her to turn off the TV and have a shower and that she ignored him and kept watching the TV. Then the father took the remote from her and took her by her arm and sent her to her room. The police did not detect any offence in the father’s behaviour and expressed concern– the children being with the mother when they were supposed to be in the father’s care due to court orders. The mother asked for copies of the children’s statements to police, as she was worried that the father had destroyed them. The police made a further referral to the Department of Health and Human Services.

4. On 18 March 2019, the father called the police after he was told by [Y] that the mother was coming to his house to take them. The mother also called triple zero and said she was coming to the house and that [X] had said she wanted to kill herself. The police attended and spoke to both girls away from their parents and [X] told the police that she had wanted to kill herself because she had a headache, because she was tired, her father did not make the dinner that she wanted and had stopped her from trying to go out the front of the home when she tried to leave. The police did not have any concerns for the children’s welfare. The father told the police he wanted the girls to stay overnight with him in accordance with the orders. The children did not want to stay with him, complaining that the father yelled at them and was controlling. When the police asked the girls as to what prompted the incident, the girls complained that they were unhappy that the father had put them in before and after school care, as they did not want to go. The father said he did not have a choice, as he had to work and his working hours had recently changed. The police recorded that they did not have concerns for the children and informed the mother to leave the home. They then had to spend some time negotiating with [Y] before [Y] agreed to stay the night. By the end of March, [Y] was refusing to see her father at all.

5. I am very troubled by the statements that the girls made to the police and the level of exposure that they have had to the police, both with respect to making statements, but also the police attending the father’s home on more than one occasion. When reading what they say, these are complaints that children make about parental discipline. But it is very concerning that the mother would think it is appropriate to take the children to police to make reports and to give statements about these types of issues. What really concerns me about that is the harm to the children in doing that. That, combined with the mother’s persistent undermining of the father and involving the children in the dispute, particularly [Y] – I hold grave concerns for [Y]’s emotional wellbeing in particular. [X]’s a little younger and seems less affected, but that is a product of her age and stage of development.

6. There was a further incident at the after school service on 7 May 2019. The parties give very different versions of events as to what occurred, with the mother saying that she was shopping and received a call that the girls were outside of school on their own and that she went there and asked them what they were doing. There is an incident report from the after school service which indicates that the father had called the service, indicating that he was going to be picking up the girls and that the mother was not allowed to collect them. Arrangements had been made for the girls to be escorted from their classrooms. Whilst they were being escorted, a parent walked by and told the girls that their mother was waiting for them outside the school and they should hurry up and go and meet her and that the girls ran to their mother, who was waiting in the car and got into the car and left. The father also annexes a letter from the Child Support Agency to the father dated 4 May 2019 which advises that the mother has notified them that the care arrangements for the children have changed and that, as from 25 March 2019, they were spending no nights in the mother's care. The mother says that that was not an attempt to undermine the father but simply seeking support. She says that she is the one who takes the children to all of their medical appointments with the father showing no interest in that and that she also has the financial burden of paying for those appointments and other school activities without the financial support of the father. 

7. The mother says that she has asked the father to assist both financially and by taking the girls to appointments but that he has refused. She says she has always kept him up to date about these issues and that she promotes the girls relationships with him as best as she can. She says that she has continued to make the girls available but the resistance is not hers but the children's alone. She refers to [X] calling her on FaceTime on 9 March 2019, being inconsolable and crying and saying that her father abused her. The mother refers to having video evidence which she sought to tender in Court which she said supports the proposition that the father allows the girls to talk to her whilst in his care and that also the father can't cope with the girls and always needs her to assist. The other Counsel watched it outside court. I refused the tender. The issue of concern is the mother contacting the girls and what she says to them.

8. She also talks about the incident where the girls were distressed and where [Y] called her saying that [X] had threatened to kill herself over the family situation. She said after that incident she took the girls to see their doctor and got them referred to a mental health plan. She also says that she has signed all the authorities necessary for the father to speak to the girls' psychologists and she can't explain why the father says that the service refuses to give him any information. In essence, the father points to many of the incidents that I have outlined in support of his application for an immediate change of residence. 

9. The Independent Children's Lawyer, who has only been recently appointed, expressed a preliminary view supporting that application. The mother opposes that application and says that she has been doing all she can to encourage the father's relationship with the girls and that it is the father who cannot cope with the girls and that the father always turns to her when there is a problem with them. I should note that, with respect to the text messages, what is apparent is that, even as the girls were being interviewed by the family report writer last year, the mother was texting the girls about what to say. The mother says that she was simply telling them to tell the truth but what is of concern is the level of intrusiveness of the mother being in contact with the girls and, whether she realises or not, influences their opinions and views. 

10. It is not surprising that the girls would be, particularly [Y], contacting the mother frequently when they are in their father's care as it is very clear from the material that both girls are well aware of the mother's attitude towards the father and her view that they are not safe with him. I am very mindful that this is an interim application and it is a drastic step to change residence in circumstances such as this, particularly on an interim basis. At an interim hearing, the court is not in a position to test the contested issues of fact but the court is also obliged to assess the allegations of risk. In this regard, I refer to the comments of the Full Court in Stott & Holgar and Anor [2017] FamCAFC 152 and, in particular, paragraphs 34 to 38 with respect to unacceptable risk test which applies to not only cases of sexual abuse and family violence but other forms of risk.

11. What the court needs to do is to assess firstly whether there is a risk and, secondly, whether it's unacceptable. In this case, the concern is that the children are at an unacceptable risk of emotional and psychological harm if they remain in their mother's care. I am satisfied, having regard to the evidence I have outlined and particularly the fact that I have a family report, though, whilst untested, is consistent with the other evidence particularly with respect to the girls' exposure to the adult disputes and the mother's negativity towards the father, the records from the police and the report from the after school care. The real dilemma is assessing whether or not the risk is such that there should be an immediate change of residence rather than leaving the children in the mother's care until the final hearing in a few months’ time where the evidence will be tested. 

12. It is a matter of balancing the competing risks as it is not without risk to the girls' emotional and psychological wellbeing to change their residence at this stage. However I have real concerns that, unless drastic action is taken now, there is likely to be real, long term damage to the children's psychological and emotional welfare that could stay with them throughout their lives. It may well be that, at the trial, the result is different and the children live with their mother. What concerns me is that, despite having the family report almost a year ago, that the mother is unable to support the father's relationship and appears to have no insight into the damage that is being done to the children. The parties will be seeing Ms A for an updated report in a couple of weeks time. 

13. The difficult issue for me now is to determine what time, if any, the children should spend with the mother pending the final hearing. In these types of cases, it can be necessary to consider whether or not there should be a moratorium on the parents' time in order to allow the children to settle into the other parent's care and reconnect with them. The ideal outcome for these children will be where they can have a healthy and loving relationship with both their parents. Whether or not that is going to be possible is something I cannot foresee at this stage. I am mindful that the orders that I'm going to make will be traumatic for the children but also for the parents and particularly the mother and that it may be that the arrangement breaks down. 

14. The father will need to ensure that he is available for the girls, available to undertake any necessary therapy at the recommendation of the Independent Children's Lawyer and that may well mean needing not to work for a period of time. Now, I arranged for the mother to bring the girls to Court today so that they will be in the play room with the family consultants and so that the Independent Children's Lawyer could see them as he has not had the opportunity to see them before. The benefit of having the girls at court today is that the Independent Children's Lawyer, with the assistance of a family consultant, will be able to explain the orders to them.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 May 2019