Aubreys and Aubreys
[2011] FMCAfam 437
•6 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AUBREYS & AUBREYS | [2011] FMCAfam 437 |
| FAMILY LAW – Parenting dispute – psychologist recommending, and father supporting, further counselling – children aged 17 years 10 months and 16 – children strongly resistant to time with father and/or counselling – orders made in conformity with children’s wishes. |
| Family Law Act 1975, s.60CC |
| Applicant: | MS AUBREYS |
| Respondent: | MR AUBREYS |
| File Number: | MLC 732 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 31 March 2011 & 1 April 2011 |
| Date of Last Submission: | 1 April 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 6 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smith |
| Solicitors for the Applicant: | Adams Maguire Sier |
| Counsel for the Respondent: | Mr Puckey |
| Solicitors for the Respondent: | Gillian Coote Family Law |
ORDERS
The father and mother have equal shared parental responsibility for decisions regarding major long-term issues with respect to the two children of the marriage namely [X] born in 1993 and [Y] born in 1995 (“the children”).
The children live with the mother.
The mother facilitate time spent with the father on such occasions as may be requested by the children.
The mother facilitate the children’s attendance at counselling in the event they request this.
The father be permitted to respond once to any communication initiated by either of the children adopting the same form of communication as the child.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Aubreys & Aubreys is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 732 of 2010
| MS AUBREYS |
Applicant
And
| MR AUBREYS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The parties would be aware, or at least their legal advisers probably would be, that it is not my practice to give oral Reasons for Judgment in this way as a general rule. I much prefer to reserve, have the Reasons for Judgment transcribed, and so on. But since there is a live issue in this case as to what should happen in relation to a child who will shortly turn 18, if the Judgment is to have any effect at all upon that child Judgment must be given quickly. I think that both parties are entitled to an outcome that is capable of being put into place. The oral Reasons I will give today will be transcribed and forwarded to the parties as soon as possible.
Property matters in this proceeding resolved by consent on 1 April 2011. What remains is a parenting dispute about [X], born in 1993 who therefore is 17 years and 10 months old, and [Y], born in 1995 and therefore now 16. Both parties agree there should be equal shared parental responsibility. Both parties agree the children should live with the mother. The issue remaining is what steps, if any, should obtain to enable contact between the children and the father. The father wants counselling with Ms F to continue, and limited time, subject to the children’s wishes, admittedly putting his proposals rather broadly. The mother seeks that there be no time or contact at all unless the children themselves decide they want it, and likewise with counselling.
So far as the evidence is concerned, the mother was extensively cross-examined on day one of the hearing and she said she supported counselling and supported the children having a relationship with their father, but that the children were strongly resistant. She said the children were not babies now; she said “I can’t pick them up and put them in the car and make them go to counselling”. The mother’s view, put shortly, is that the children are of an age where their views should be respected. At present, they do not want any contact with their father. It seems from the matters that arose in cross-examination of the mother that there has been some measure of contact by the children with their father, but it is clearly limited.
On at least one occasion, it involved a breach of an intervention order when the father contacted [Y] with an offer of an iPad for her birthday; not surprisingly, [Y] took up the offer. No further oral evidence was given. On the second day the matter proceeded by way of submissions only. The only other evidence of any significance is in the reports of Ms F and a family report from Ms T.
Turning to the facts. The mother and father married in 1990, although they commenced their relationship in 1987. The children, as I say, were born in 1993 and 1995. Separation took place in July 2009 when the mother walked out with the children. They have spent very little if any time and had very little other contact with the father since then.
In an effort to address the problems that had arisen, the Court ordered on 19 April 2010 that the parties attend a counsellor/psychologist and that they follow that person’s recommendations. There are two reports from Ms F, which are exhibits MJA2 and MJA3 to the father’s trial affidavit. The first report is dated 12 July 2010. It is clear meetings had taken place, Ms F suggested further sessions and said it was important that the mother bring the children to the sessions to convey her support for the process. Ms F said there should be more sessions if the sessions were helpful, and I quote “that this would only be in the context of [X] and [Y]’s agreement”.
Ms F’s second report was dated 26 July 2010. It noted the children had told the mother that they did not wish to speak with
Ms F and that the mother supported their decision. Ms F noted that the father was disappointed and still wished to speak with the children and Ms F, quite properly, reminded the parties of the Court order to comply with her recommendations. She reminded the parties of the challenge to put aside their emotions, and of the importance of support for the process. She went on to recommend further sessions; these did not occur.
The mother says, at paragraph 20 of her trial affidavit, that [Y] was distressed during the visits to Ms F and Ms T and that this led to poor performance at school and poor attendance by her also. I note in passing that Ms T observed that [Y] was distressed, as she records in her report. I also note that [Y] has had problems with school but I do not find that the evidence goes far enough to say that this was caused by any distress that may have been occasioned by her attendance upon Ms F and Ms T.
The family report, dated 10 August 2010, was not the subject of any desire to cross-examine, and even though that is some months ago, it is clear there have been no material changes in the facts as described in the family report. The father’s position is set out at paragraph 6 of the report, which I will read:
“Mr Aubreys is of the belief that Ms Aubreys has delayed involvement in counseling sessions with Ms F. He is keen to follow recommendations made by Ms F and continue his involvement in this process. Mr Aubreys remains personally distressed with the current family situation, including the ending of his marriage and the thoughts expressed by both girls that they do not wish to engage or communicate with him in any substantive manner. Mr Aubreys expressed a desire to engage in ‘shared parenting’ with Ms Aubreys, wanting an active involvement in the girls’ everyday lives.”
The mother’s position is set out at paragraph 7 as follows:
“Ms Aubreys stated that she remains reluctant to engage in future counselling sessions with Ms F. She stated that [X] and [Y] have also expressed their reservations in this area. Ms Aubreys is proposing that both [X] and [Y] make their own decisions in this area describing them as capable of initiating communication with their father if they choose to do so. She believes that they – And, she obviously meant to say “are” – of an age when they can make decisions without undue pressure being placed upon them by their father.”
Those extracts, in substance, were the parties’ positions before the Court. The mother told the counsellor that the father was abusive, as is set out in paragraph 3 of Ms T’s report. The father denied parenting in an abusive manner, but in paragraph 4 of the report I note that Ms T records him saying, and I quote:
“He acknowledges that his behavior towards Ms Aubreys could be deemed low-level domestic or situational abuse.”
Indeed, the father has commendably sought assistance in this regard. It is clear from what the father says that he loves his daughters. It is clear he has been very distressed by the ending of his marriage, and it is also clear that he still struggles to accept it. [X]’s attitude is recorded at paragraph 19 of the report:
“[X] presented as an attractive, verbal, confident and self-assured older adolescent. She was clear and determined in her views. [X] stated that ‘she has no more patience with her father, I don’t like him, he is abusive and controlling’. [X] added that she is refusing to go again to Ms F. She described her father as ‘getting worse now that I am my own person’. [X] stated that she wanted ‘no contact with him, I don’t want this, I have told him’. She described feeling ‘harassed and annoyed’ by attempts by her father to communicate with her. She believes that her father has ‘followed us around, we want to be left alone, I get frustrated and annoyed that he doesn’t listen’. [X] commented, ‘I have been looking for a way out with him for a long time, it has never been good’.”
[Y] is dealt with at paragraph 20 as follows:
“[Y] presented as anxious and reluctant to talk about her feelings in relation to her father. She stated that it was ‘hard to talk about it’. She added that she ‘only talked to close friends about her feelings’. [Y] was observed to be tearful for the majority of the interview, experiencing difficulty discussing her thoughts, preferences, and opinions. At times, she was resistant to gentle encouragement for her to express her feelings in relation to her father. [Y] commented that she has ‘seen Ms F once, I am not keen to go back. I would go if I had to, if I was forced, I would rather not, it should be my choice’. [Y] stated, ‘I don’t want to see dad right now, it is like a guilt trip, I feel bad, I need space from him’. She stated that, ‘life has been better over the past twelve months, just me [X] and mum, I don’t know how I feel sometimes’. [Y] commented that she has friends to talk with, especially ‘my youth leader at Friday night church group’.”
The mother’s attitude to the matter is further described at paragraph 23, as follows:
“Ms Aubreys described both [X] and [Y] as ‘reacting to their dad’s insistence they see him, he demands, he is not letting them have their own space, they didn’t have a normal childhood there are tainted memories, they have been emotionally hurt. Ms Aubreys stated that she does not want the girls not to see their father forever, but both are upset and angry with him now, I need to protect them and make amends’. Ms Aubreys described [X] as ‘forthcoming, blunt, has a strong mind’. Mr Aubreys hit her and yelled at her in the past, she feels manipulated by her dad, he told her he had a present for her if she came to lunch with him. Ms Aubreys described [Y] as ‘quiet, used to be daddy’s girl, she has said someone had to stop dad getting angry, she is not wanting to talk about her feelings, she went to the football with her dad, insisted that her friends go with her, she didn’t want to be alone with her father’. Ms Aubreys acknowledged that [Y] experienced missing some school last term, she was having some problems with friends, she was emotional.”
The conclusions of Ms T are described at paragraphs 28 and following, in these terms:
“Mr Aubreys does not accept that his behaviour during the marriage was consistently abusive. He remains of the opinion that the reasons for the marriage breakdown also involved communication and intimacy issues between himself and Ms Aubreys. Mr Aubreys does not accept that his behaviours were abusive towards [Y] and [X], viewing himself as a caring and involved father. Mr Aubreys appears not to have reached the stage of accepting that his marriage to Ms Aubreys has ended, continuing to express feelings not only for his daughters but also Ms Aubreys. This remains a significant area of distress and grief for him. Mr Aubreys continues to ask for detailed explanations from both Ms Aubreys and his daughters, impressing as emotionally intense.
Ms Aubreys clearly articulated her belief that Mr Aubreys engaged in abusive behaviours, both as a father and husband during the marriage of twenty three years. She expressed some relief that the relationship has ended, wanting to move forward with her own independent life. Ms Aubreys stated that Mr Aubreys remains unwilling to accept the current situation. She believes that his continuing insistence that family members participate in counselling reflects his inability to fully understanding the feelings and current thoughts of both his daughters and herself. She believes that his individual personal needs and demands are being enforced by the requirement for family members to continue attending counselling sessions with Ms F.
[X] aged seventeen years, and [Y] aged fifteen years, were able to express their resistance to spending time and communicating with their father at the present time. Both girls also expressed their significant reluctance to participate in future counselling sessions with Ms F. [X] and [Y] reflected that they feel settled, happy, and emotionally secure living with their mother. [Y] and [X] both expressed their personal views that they are now old enough in order to make decisions as to how, when, and if they want to spend future time with their father.
[X] impresses as a determined, capable, and mature girl of seventeen years. She appears fixed in her current views, not wanting to enter into communication with her father. She impresses as able to make her own decisions in this area given her chronological age and understanding of the family issues. It is considered that [X]’s views and opinions be accepted and acknowledged at this time.
[Y] impresses as an emotionally vulnerable adolescent girl. She was visibly distressed when discussing her relationship with her father, acknowledging that she experiences personal difficulty expressing her feelings in this area. It is considered that [Y] requires ongoing support and assistance not only from her family, but also from a professional counsellor. She impresses as emotionally confused, traumatised, and saddened by the current situation. [Y] spoke of her willingness to engage with her school counsellor and youth group leader, however the encouragement is given to Ms Aubreys to provide [Y] with the additional opportunity to engage with a professional counsellor.
There remains the strong possibility that Ms Aubreys, [X], and [Y] have experienced volatility and abusive behaviours from Mr Aubreys. Although Mr Aubreys was able to acknowledge some personal responsibility in this area, it appears that he continues to underestimate the impact of his behaviour upon family members. It is considered that through continuing personal counselling he may be able to modify and change his interactions with Ms Aubreys and his daughters and to demonstrate this in his future communication with them. It appears that [X] and [Y] continue to feel anger, hurt, and mistrust towards their father. It also appears that Ms Aubreys continues to strongly feel anger towards Mr Aubreys, wanting to protect herself and her daughters from ongoing emotional trauma.
Following the recommendations of Ms F has identified benefits in the current circumstances. Ms Aubreys has clearly stated that she is supportive and accepting of the girls’ individual decisions. However, it is considered that both girls feel a strong loyalty towards their mother and would be acutely aware of her strong opinions in relation to Mr Aubreys. It is important that [Y] and [X] have the ongoing opportunity to develop their own relationship with their father given the family’s changed circumstances. It is considered that it may be in both [Y] and [X]’s best interests to participate in a counselling session with their father with Ms F facilitating their conversation with Mr Aubreys. There is the added benefit of Mr Aubreys hearing directly from the girls their current feelings, thoughts, and decisions, and the associated reasons. It is noted that Ms F is willing to engage with Mr Aubreys in the future to discuss parenting issues. It is considered that this may aid Mr Aubreys in developing further insight into his parenting responses, and future parental communication.”
The recommendations were therefore made by Ms T that the daughters be given an opportunity to meet with the father and
Ms F but thereafter the views of [X] be respected, that [Y] have counselling, that time be as the children agree, that there be counselling for the father, and that the mother facilitate contact between the children and their father.
Relevantly, I would make from the materials the following findings. [X] wants, at this time, no contact with her father at all. [Y] is possibly more equivocal but prima facie the same. Both children are loyal to their mother and do not wish to upset her. The mother says she will encourage relationships between the children and their father. That was clearly an honestly expressed view, but it is not her true state of mind. Her real state of mind is that the children do not want to see their father, and she will protect them by not facilitating this.
The father’s proposals - leaving aside agreed matters such as that the children live with the wife and that there be shared parental responsibility – are that the children spend time with him for dinner on the first Sunday of each month, and on such other occasions as may be agreed to between the parties, subject to their wishes; that the mother facilitate time spent with the father on such further or other occasions as may be expressed by the children; that the children each attend upon Ms F for therapeutic purposes and comply with all recommendations and directions of the treating therapist; that the children attend upon Ms F with the father for facilitated family therapy under her recommendation; that the mother facilitate the children’s attendance at counselling in accordance with the children’s wishes; that the father be permitted to provide the children with a letter written by him, and any other communication from time to time, providing electronic communication is limited to (a) responding to contact initiated by the children or (b) contact initiated by the father no more than once a week.
The mother’s countervailing proposition is that the mother shall facilitate time spent with the father on such occasions as may be requested by the children; that the mother facilitate the children’s attendance at counselling in the event that they request this; that the father be permitted to respond once to any communication initiated by either of the children adopting the same form of communication as the child.
Superficially, it might be thought that these are similar propositions, but in fact they are very different. The mother’s proposals will cease all time, save by the children’s wishes. The father’s proposals will compel regular consideration, at least of contact face to face, and once a week contact by letter or email. The father also envisaged enforced counselling with Ms F.
I approach the matters set out in s.60CC with the objects in s.60B of the Family Law Act 1975 (“the Act”) well in mind. Turning to s.60CC(2) and the primary considerations as to what are in the children’s best interests.
The benefit of a meaningful relationship with their father is clear - that he loves them is conceded by the mother in any event. The difficulty is that psychological harm is a real issue in this case. The steps the father seeks to be implemented regarding Ms F and other contact, on the evidence, would be distressing for the children.
Turning to s.60CC(3)(a); the views of the children are extremely clear. They do not want to see their father and as a result, do not want to see Ms F. [X] is almost 18. Within a matter of weeks the Court’s jurisdiction over her will lapse. She is a confident and self-assured older adolescent. [Y] is 16. That is younger, but still an advanced age for a child.
Section 60CC(3)(b); clearly the children have good relationships with their mother, they have a fractured relationship with their father, although perhaps less so in the case of [Y].
Section 60CC(3)(c); the wife says she will promote the relationship between the father and the children, but in fact in my view will not do so at the present time.
Section 60CC(3)(d) is not relevant; there is no application to separate the children.
Section 60CC(3)(e); the practical problem in relation to the children spending time with their father is the views of the children and their mother’s support of those views.
Section 60CC(3)(f); the mother is certainly capable of providing for the children. There must be some question of the father’s capacity. His lack of insight over the break-up of the marriage supports the view that there is a lack of insight into the fact that the children do not want to see him at the moment.
Section 60CC(3)(g); the only matter that arises here is that the children are mature.
Section 60CC(3)(h) is irrelevant, and section 60CC(3)(i) adds little; I have already referred to the mother’s non-facilitation of relationships with the father for the children.
Section 60CC(3)(j) is a matter I have already noted; there clearly was some measure of abuse during the relationship.
Section 60CC(3)(k); I note that there has been an intervention order in place since May 2010.
Section 60CC(3)(l); this is important in the context of this case. The Court is required to make the orders it best can to seek to avoid further litigation. In my view, if I make the orders the father seeks there will be further proceedings. The children will not attend Ms F, and the mother will be accused of contravening the order for facilitation. Contravention orders will be inevitable if I make the orders the father seeks.
Section 60CC(3)(m); any other matters the Court considers relevant. Ms F’s reports are clearly relevant, and there is no doubting her expertise, but I am not bound by her views or those of Ms T. It is for the Court to decide what is in the children’s best interests, it is not a question of trial by expert. To the extent that both Ms F and Ms T recommend more counselling, or more contact with
Ms F, in my view they fail to pay sufficient regard to the views of the children and their age. I accept those views may have been influenced by the children’s love of their mother. I accept the mother’s evidence that she tells the children that she favours contact with the father but it is very probable, at least in part, that they are influenced by their perception of the mother’s views. I refer again to Ms T’s report at paragraph 34 in this regard.
These children are almost adults. They cannot be picked up and placed in a car like babies or little children. They will, quite clearly, do what they want. That the father is pressing his case, particularly in relation to [X], shows a disturbing lack of insight. It will be better for everyone, including him, if I make the orders the mother seeks. The best interests of the children, on these facts, will be met by respecting their strongly expressed views. If either of them, and particularly [X], wish to spend time with their father or to have other contact, they will be more than likely to do so if they are in control. This will also reduce the mother’s anxiety, and this is also in the children’s best interests.
It is clearly desirable that the children have ongoing meaningful relationships with their father; he loves them dearly. In the circumstances of this case, however, the best chance of achieving this desirable outcome will be to leave it to the children to decide. If they wish to contact the father, as he asserts, the orders permit it and it will occur. If he is wrong and they do not, it is not in their best interests to compel it. I will make final orders in the form sought by the mother. These will be engrossed and forwarded to the parties, together with these Reasons for Judgment, as soon as practicable.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 6 April 2011
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