Ziller and Foster and Anor

[2017] FamCA 484

FAMILY COURT OF AUSTRALIA

ZILLER & FOSTER AND ANOR [2017] FamCA 484

FAMILY LAW – CHILDREN – Discharge of previous final consent orders – Discharge of orders in relation to children spending time with paternal family – Orders not warranted due to children’s improved relationship with paternal family – Discharge of orders in relation to child communicating and spending time with father – Findings that child spending time with father is positively unhelpful and causing emotional distress to child – Child’s refusal in communicating and spending time with father – Discharge of Independent Children’s Lawyer and s65L supervisor.

APPLICANT: Ms Ziller

FIRST RESPONDENT: Mr Foster

SECOND RESPONDENT: Ms J Foster

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 1052 of 2011

DATE DELIVERED: 10 July 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 20 June 2017

REPRESENTATION

THE APPLICANT: In person

THE FIRST RESPONDENT: No appearance

THE SECOND RESPONDENT: In person

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER :

M M Meehan

Orders

1. Orders 2, 14, 15, 16, 18 19, 22, 23, 24, 25, 26, 27, 30 and 31 of the orders of Tree J made 5 August 2016 be discharged.

2. The Independent Children's Lawyer be forthwith discharged with the thanks of the court.

3. The s 65L supervisor is forthwith discharged with the thanks of the court.

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

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

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVC1052/2011

Ms  ZILLER

Applicant

And

MR FOSTER AND MS J  FOSTER

Respondents

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 5 August 2016 I made final consent orders in the parenting proceedings in this matter.  By orders 30 and 31 then pronounced, I appointed a s 65L supervisor to assist the parties with compliance with the orders, and ordered that her appointment, together with the Independent Children's Lawyer’s appointment, be discharged on 5 August 2017.  However in relation to the Independent Children's Lawyer, I ordered that until that date, “she have liberty to apply to the court to amend these orders, including but not limited to, them providing for the children to spend time with the father in the presence of Ms J Foster, Ms K Foster or Ms L Foster, noting that depending on the nature of any proposed change, it may be that an updated Family Report is required.”

2. The settlement was of an unusual and relatively complex nature.  The first unusual aspect of it was that it added as a party to the proceedings the father’s sister, Ms J Foster.  It then provided a dual regime whereby the parties’ three children B (presently 17 years of age), C (presently 15 years of age) and D (presently 7 years of age) would live with the mother but spend time with Ms Foster and other members of the paternal family during school holidays, and that D would spend specified supervised time with the father at Contact Centres. Additionally, there was a regime of communication between the father and D which was ordered, initially by telephone but ultimately by Skype; otherwise there were no orders for the children to spend time or communicate with the father. 

3. The hope which underpinned those orders was doubtless two-fold.  The first was that the conflict between the mother and the paternal family more broadly would be quarantined from the conflict between the mother and the father, such that Ms Foster and other members of the paternal family would be reintroduced into the children’s lives.  As it transpired, that has occurred.  The second hope was that the father would be able to establish and maintain an appropriate relationship with D, by telephone and Skype initially, and then by supervised time, and if the matter proceeded well, perhaps even be reintroduced to the elder two children, from whom, by the time of the orders of 5 August 2016, he was comprehensively estranged.  Sadly that second hope has proved forlorn as I shall shortly discuss.

4. Pursuant to the liberty to apply afforded to her, on 22 March 2017 the Independent Children's Lawyer sought the discharge of a number of the August 2016 consent orders.  Specifically she sought the discharge of the orders which joined Ms Foster, and which provided for her and other members of the paternal family to spend time with the children, not because they had proved unsuccessful, but because Ms Foster and the mother had moved to a point where they no longer needed a regime of orders to facilitate the children’s relationship with the paternal family.  Further, she sought that the orders facilitating the father communicating with the children (except sending gifts, letters and cards) and spending time with D be discharged, as they had proved not merely unworkable, but positively unhelpful.  She further sought that her appointment and the appointment of the s 65L supervisor forthwith cease.

5. By her Response to the Independent Children's Lawyer’s Application filed 26 March 2017, the mother consented to the orders sought by the Independent Children's Lawyer, and in her affidavit filed 7 April 2017 Ms Foster indicated likewise that she wished to no longer have the benefit of the orders which had been made in August 2016.

6. The Independent Children's Lawyer’s Application in a Case came before me on 22 March 2017, on which occasion it had not been formally filed or served.  I made orders permitting it to be filed in court, and for its service upon all of the relevant parties.  I then directed that on or before 4:00pm on Thursday 13 April 2017, the mother, father and Ms Foster were to make file and serve any Response together with any material upon which they intended to rely at the hearing of the application.  That application was then adjourned to 9 May 2017 for further hearing.    

7. On 9 May 2017, the mother, father and Ms Foster appeared in person.  The father indicated that he wished to apply to adjourn the hearing of the Independent Children's Lawyer’s application, and accordingly I directed that any such application be made filed and served by him on or before Tuesday 6 June 2017, together with all affidavits he sought to rely upon in support of any such application to adjourn.  I further directed that any such application, together with the Independent Children's Lawyer’s Application in a Case filed 22 March 2017, be listed for hearing on Tuesday 20 June 2017.

8. No application to adjourn as contemplated by the 9 May 2017 orders was filed by the father, and he did not appear on 20 June 2017, although he had recently been in communication with the Independent Children's Lawyer who had reminded him of that hearing.

9. Before me on 20 June 2017 the parties who appeared all agreed that the orders sought by the Independent Children's Lawyer should be made, and I proceeded to pronounce them for reasons to be published in due course.  These are those reasons.

THE ORDERS RELATING TO MS FOSTER

1. Dealing firstly with the orders in relation to Ms Foster and the paternal family more generally, it is to be commended that the mother and the broader paternal family have been able to mend their relationship to the point where they no longer feel as though the circumstances of their interaction need to be governed by orders.  There is no reason not to discharge the orders in relation to the paternal family (except the father) spending time with the children and communicating with them, when the parties are agreed that greater flexibility can be achieved without them.  I am well satisfied that the orders proposed in relation to that aspect of the Independent Children's Lawyer’s application are in the children’s best interests and will make them.

THE COMMUNICATION ORDERS

1. Next I turn to the orders permitting telephone and Skype communication between the father and D.  Amongst the material relied upon by the Independent Children's Lawyer in support of her application were a Child Inclusive Conference Memorandum dated 7 December 2016, a Child Dispute Conference Memorandum dated 8 December 2016, and the s 65L Supervisor’s report dated 30 January 2017.  It is sad to relate that those three reports all demonstrate that D has proved to be highly resistant to communicating with the father, whether by telephone or Skype.  For instance in the 7 December 2016 memorandum it is noted:

   [D] gave a very negative account of her communication with [the father].  She said that he says mean things about her sisters and her mother during the calls.  She had difficulty providing specific examples but indicated that [the father] implies that her mother is “horrible” but she is not.  [D] said that [the father] regularly says things to upset her, such as “[Mr M] [her step-father] is not your dad.”  She says that she sometimes tells [the father] what she has done on the weekend but he gets mad at her.  [D] said that she did not know why he reacted like this.

2. The memorandum continues:

   [D] explained that the calls are “not good anymore.”  When asked whether they were “good” initially, [D] said they were “not good” initially either because she was “scared”; but she explained that [the father] did not seem as angry as he seems now.  She explained that she has become less “scared” but that “he’s getting really angry again.”

3. Later it is recorded:

   [D] was adamant she did not want to continue any communication with [the father]; including special occasions.

4. Interestingly, since it proved to be correct, D then intimated that in relation to the then forthcoming supervised contact visit, she did not intend participating in it.

5. In the Child Dispute Conference Memorandum on the following day, another family consultant (the s 65L supervisor) noted the father’s concerns that “[D] has become increasingly reluctant to converse with him so he has difficulty maintaining a conversation with [D].  [D] will then hang up the call after only a few minutes.”  The father expressed a belief that the mother was not actively facilitating the call.

6. For her part the mother expressed concerns that the father “would speak in a loud and angry voice to [D] when [D] did not reply to his questions and this made [D] frightened and even less willing to participate in a call.”

7. In the final memorandum of 30 January, the s 65L supervisor opined that “the Skype calls have not achieved the desired outcome of providing an opportunity for [D] to develop a relationship with her father.  On the contrary, the Skype calls have led to escalating conflict between the parents, via text messages, and consequent exposure of [D] to what has become a stressful and anxiety laden weekly event.”  Based upon this she recommended that the Skype and phone calls forthwith cease.

8. The 5 August 2016 consent orders came unexpectedly at the end of a long and hostile trial.  During the course of that trial I was played a number of recordings of the father’s telephone interactions with the children.  They were appalling and belligerent.  The father berated and bullied the children who were regularly crying.  He emotionally manipulated them and behaved in an altogether unpleasant and counterproductive way.  Had he set out to sabotage his relationship with the children, he could scarcely have achieved it more efficiently.  Sadly I have little doubt that the father has proved unable to modify his means of telephone or Skype interaction with the children, as is borne out by D’s own complaints.  Even if the father’s phone calls have in some way moderated, if they continue only some fraction of the intense bullying in the recordings that were played to me, they would still be counterproductive to establishing or maintaining a relationship with D.

9. To permit or require the telephone conversations to compulsorily continue on a weekly basis going forward, could only serve to destroy whatever filament of a relationship the father may one day be able to salvage between himself and D.  Worse, it is likely that if they were to continue, they would emotionally harm D, or at the very least continue to distress her at being forced to confront her father in such a way.

10. I am well satisfied that the orders in relation to telephone and Skype communication between the father and D should be discharged.  The sad consequence of that is that it is unlikely that the father will ever be able to lay the groundwork for establishing a meaningful relationship with the one child of the relationship which was not at the time of trial wholly estranged from him.  However that hope, which to an extent, in the August 2016 consent orders triumphed over experience, can no longer be permitted to do so.

THE SPEND TIME ORDERS

1. Next I turn to the orders in relation to the father spending time with D.  As I have indicated, in December 2016 D indicated she had no intention of cooperating with spending time with the father, and indeed that transpired.  It is unnecessary to set out much detail of the first attempted reintroduction of D to the father on 13 January 2017, but it was a wholesale disaster.  In attendance on that occasion was the s 65L supervisor and the Independent Children's Lawyer.  The s 65L supervisor’s report noted that D became angry and upset and would not get out of the car.  The Contact Centre coordinator spoke with D, who refused to leave the car to accompany her mother into the Contact Centre.  The s 65L supervisor then sat in the rear seat of the car next to D to try and investigate why she was refusing to participate in the visit.  She noted that D was tightly holding her sister’s hand, crying, breathing in a shallow way, and her face was red and she was sweating.  Inquiries by the s 65L supervisor about why D did not wish to spend supervised time with her father elicited similar responses to those given to the Contact Centre supervisor.

2. The s 65L supervisor concluded:

   My assessment of [D], at that time, was that she was extremely distressed at the prospect of spending time with her father.  Given [D’s] presentation at the time of this assessment, against a background of previous recent assessment by family consultant… and the failure of the Skype calls as reported by each parent, the 65L supervisor made a clinical decision that [D] would not cope with a face to face visit with her father either on that day or on the Saturday.

3. In accordance with Contact Centre guidelines, all of this occurred in advance of the father’s attendance at the Contact Centre.  When he attended and was advised of the outcome of the attempt to have D spend time with him, it is noted that he was “very angry and argumentative.”

4. The Family Report writer noted that D is likely to have recall of a previous occasion when her father had taken her away without notice during the course of Family Report interviews, and that in conjunction with the ongoing hostility between her parents, and her older sisters’ negative view of the father, D now perceives her father in a fearful way, and indeed not as a father at all, but rather as an adult who causes her mother and sisters great distress.  The consultant continued that D “views any contact with her father, whether a Skype call or a face to face visit as threatening and to be avoided at all costs.”

5. It is plain that the regime of orders which were hoped would effect a reintroduction of the father into D’s life have wholly failed.  It would be frankly ridiculous to continue to attempt to have D spend time with the father, given the complete failure of the first attempt.  It is likely to continue to distress the child, and as with telephone calls, simply serve to further undermine whatever fragile chances remain that the father will ever be able to establish a relationship with D.

6. I am well satisfied that the discharge of the orders requiring the mother to make D available for supervised time are in the child’s best interests, and will make them.

OTHER ORDERS

1. The final orders sought by the Independent Children's Lawyer related to the discharge of both herself and the s 65L supervisor.  Given that there are no extant orders of any substance which would require either supervision by a 65L appointee, or justify further public expenditure by the continued involvement of the Independent Children's Lawyer, I was satisfied that those orders should be made and therefore made them.

CONCLUSION

1. For these reasons, on 20 June 2017 I pronounced the orders as sought by the Independent Children's Lawyer.      

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 July 2017.

Associate

Date: 10 July 2017