AYTON & ESSEX

[2015] FCCA 994

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYTON & ESSEX [2015] FCCA 994

Catchwords:
FAMILY LAW – Parenting – children of seven and five years – issue of time with father – children have had no relationship with father – failed interim arrangement at contact centre – benefit to children of any direct relationship between children and father – allegations of a violent relationship between father and mother – whether mother’s own parenting capacity compromised by direct contact between children and father.

Legislation:

Family Law Act 1975 (Cth)

Champness v Hanson [2009] FamCAFC 96

Applicant: MR AYTON

Respondent: MS ESSEX

File Number: DGC 4383 of 2010

Judgment of: Judge McGuire

Hearing dates: 16 & 17 April 2015

Date of Last Submission: 17 April 2015

Delivered at: Melbourne

Delivered on: 30 April 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondent: In Person

Counsel for the Independent Children's Lawyer: Mr R Hoult

Solicitors for the Independent Children's Lawyer: Mr McCormack

ORDERS

1. The children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”) communicate with the father as follows:

   (a)Not more frequently than once each calendar month by way of the father sending letter, card or gift (including photographs) to the children or each of them at (omitted), Victoria or such other postal address nominated by the mother;

   (b)The mother be permitted to read such correspondence and to then pass the same onto the children provided that should the communications contain material inquiring of the mother’s personal particulars or the children’s residential address then the mother not be required to pass on the correspondence but should this occur then the mother to notify the father in writing within seven days of receipt and the father then be able to send a substituted letter or letters for that month;

   (c)The mother assist and encourage the children and each of them to reply to the father on each occasion by letter, card or gift (including photographs) and to forward each reply to the father at (omitted), Victoria, or such other postal address as nominated by the father such reply to be sent within seven days of receipt of the father’s communications;

   (d)Additionally, by letter, card or gift (including photographs) from the father to the children each Christmas and on each of the children’s birthdays and on the same obligations for the mother as to the children’s replies as in Order (1)b) above; and

   (e)Such other terms of communication or time-with as the parties may agree from time to time in writing.

2. Orders 1 and 2 of the Orders of 18 July 2012 remain in full force and effect.

3. That the order appointing the Independent Children’s Lawyer dated 1 JUNE 2011 be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 4383 of 2010

MR AYTON

Applicant

And

MS ESSEX

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the parties’ two children X born (omitted) 2007 (aged 7 years) and Y born (omitted) 2009 (aged 5 years) (“the children”).

2. These reasons are to be read as an addendum to my more detailed history and reasons of 18 July 2012.

3. The substantive issue as to the children’s time with the father was agitated in this Court in June and July 2012. On 18 July 2012 and after some four days of Court time, I made interim Orders for the children to spend time with their father supervised at a contact centre. I determined that such Orders be interim only given the background of the matter and the limited time, if any, that these then very young children had spent with their father.

4. The matter came back before me in April of this year being effectively as a continuation of the Trial over a further two days.

5. Whereas both parties had been represented by Counsel at the commencement of the proceeding, they are now both regrettably self-represented. This simply added to the complexities that already presented to the Court given that, although the mother is well educated and articulate, the father unfortunately is functionally illiterate. He has suffered a number of medical conditions including a stroke. He has blindness in one eye. He has an admitted lengthy history of serious drug abuse which, in all likelihood, has led to some drug induced psychosis. He concedes suicide attempts. Fortunately, however, the Court has the benefit of the appointment of an Independent Children’s Lawyer with the consistency of Counsel in the two episodes of the Trial.

6. My comprehensive reasons of the 18 July 2012 set out in detail the background to these two parents, the evidence, the issues before the Court and reference the evidence to the relevant considerations under sections 60CC(2) and (3) of the Family Law Act 1975 (“the Act”). Those issues remain relatively unchanged despite the almost three years since the commencement of Trial.

7. Suffice to say that the mother entered into a relationship with the father when she was in her mid-teens. She came from a comfortable middleclass background and it is fair to assume that she was then enduring a rebellious period of her adolescence. She commenced a relationship with Mr Ayton who was some years senior. The evidence at the first part of the Trial suggested that he wore his involvement in the drug- culture and the violence that accompanies it as some badge of honour. In any event, the relationship was, not surprisingly, one characterised by violence and drug abuse. Mr Ayton admits that he was primarily culpable in this regard. Predictably, the relationship ended and the young mother and two infant children returned to the bosom of her family. The father has had little or no time with the children since.

8. The mother mounts her argument on the following fronts:

   (a)That the children would be so distressed to spend time with their father that it would not be in their best interests to do so;

   (b)That should there be time between the children and the father then the mother would be so anxious by that prospect that her own parenting would be seriously compromised to the detriment of the children’s best interests. To this end, she believes that she suffers from, and has been diagnosed with, post-traumatic stress disorder; and

   (c)That, in any event, there is no benefit to these children in having a continuing relationship with their father and with emphasis on the terms of the Orders that he seeks being for supervised time only (at least for the foreseeable future).

9. For his part, the father argues that the mother regrets her liaison with him and now wishes to erase history and remove him completely from the children’s lives. He says that he has addressed his drug and social problems. He seeks Orders only for supervised time but with the prospect of more time in the future.

10. Both parties provided updated affidavit material but, as I have said, the issues remain effectively unchanged over the past three years. Significantly, however, my interim Orders of July 2012 have had virtually no operation and certainly no success. The evidence suggests that the children were taken to the contact centre on perhaps two occasions. They were so distressed that the contact centre did not proceed with the visits and ultimately advised the parties that counselling was a preferred option. The children at this time were five and three years of age. The younger child had experienced no contact with the father. The elder child’s contact had ceased at 18 months of age.

11. Both parties gave evidence and cross-examined the other in a very limited sense with little probative assistance to the Court. Counsel for the Independent Children’s Lawyer was probing in his cross-examination of the parties and witnesses which provided some real evidentiary assistance to the Court. Nevertheless, both parties conducted themselves appropriately and with courtesy throughout the proceedings. It is proper to note for the purposes of these reasons by observations, however, that the mother was more able and confident in her preparation and presentation of her case than was the father.

12. The mother relied to a high degree on affidavits from her counsellor, Ms J. She provided two affidavits and has had a lengthy and regular professional relationship with the mother. Indeed, I requested that Ms J be at Court for testing on her evidence given the clear reliance given by the mother on Ms J’s diagnosis of post-traumatic stress disorder and her view that the mother would be further traumatised by there being direct time between the children and their father and hence her parenting capacity would deteriorate. This, of course, is the essence of the mother’s case where she espouses generally a view that children should have relationships with their fathers and, importantly, she has not at any time actively dissuaded the children from seeing their father. The mother and Ms J both consider, therefore, that the children’s distress at the contact centre in 2012 can only be explained by these young children somehow having subliminal understanding recognising that their mother would be anxious by the prospect of time between them and their father.

13. The mother was an excellent witness. She answered questions in cross-examination directly and assertively but always with courtesy. She disputed any accusation of an agenda or motivation other than the children’s best interests. My observations of her were, as in 2012, of a confident, stoic, at times dogmatic, and capable young mother. Certainly, in the Court room there was no obvious indication of any undue anxiety by reason of the presence of Mr Ayton excepting one tearful response from which she quickly recovered.

14. The mother’s counsellor, Ms J, maintains a diagnosis of post-traumatic stress disorder with a cause of the emotional or psychological abuse experienced by Ms Essex during the relationship with Mr Ayton. It should be understood that Ms J is Ms Essex’s therapist. Her reports, and particularly the second, tended towards generalisational social comment and superlatives. She also volunteered a critique on Dr D’s forensic assessment of the parents, he being the Court ordered expert psychiatrist. Understandably, Ms J is supportive to a high degree of the mother’s case.

15. Intrusive and vigorous cross-examination by Counsel for the Independent Children’s Lawyer of Ms J resulted in little, if any, retreat or objective consideration by her. I observed her to be understandably partisan of the mother’s case in particular but also to espouse firm views in respect of family violence often tending to be gender specific. I consider Ms J’s evidence against the earlier evidence of Dr M who I considered to be appropriately objective. Nevertheless, Ms J’s evidence is of some assistance given the length of and continuous relationship with the mother. No issue was taken with Ms J’s experience, qualifications or expertise to provide us with the benefit of her opinions.

16. The Court also had the benefit of psychiatric assessments on each of the parents prepared by Dr D whose affidavit was sworn in October 2014. Indeed, the psychologist, Ms J, offered us her critique of Dr D’s report. Dr D gave evidence by telephone. Essentially, he was unable to conclude unequivocally a diagnosis of post-traumatic stress disorder in the mother. He did, however, acknowledge the history and the symptoms informed by the mother which have been before all of the professionals in this matter from 2012 to current.

17. Dr D did not diagnose a mental illness in the father although he acknowledged his past anti-social behaviours. In any event, given the narrow ambit of this dispute, the father’s capacity is of limited probative assistance to me save and except perhaps in respect to the issue of whether there is any benefit to the children of a very limited time relationship with Mr Ayton.

18. Without diminishing the abhorrence of domestic violence, the fact of a history of domestic violence and the mother’s claimed consequential fear of the father are not in themselves the primary issues here. The only time with the children realistically contemplated by the father is to be subject to professional supervision. The relevance of the alleged violence and history on the mother’s case is only to the effect, if any, on her own parenting capacity should the children experience direct contact with the father.

19. My previous reasons left me satisfied of the father’s historical violent behaviour. I am equally satisfied, however, that he has taken proper measures to address that history and has now achieved some degree of maturity, certainly relative to when he was last before this Court in 2012. I am satisfied on the evidence that he no longer pursues his interest in the drug culture. He has left behind his involvement in various dubious underworld activities. He suffers significantly, both physically and intellectually, from his various injuries and ailments most of which seem self-inflicted from his drug use. He continues to live a fairly sedentary life in his father’s home. His actual and social mobility seems limited by his various disabilities.

20. Mr Ayton has had no real contact with the children over the past three years. There has been no communication between him and the children by letter, or otherwise. It seems that he has left the matter of his relationship with the children to the finalisation of this Court case. I accept, however, that he has probably suffered in a forensic and practical sense from the disengagement with his solicitors. Mr Ayton does not impress me as having a high degree of initiative or possessing of the wherewithall to be proactive in pursuing his relationship with his children. He seems to have been completely unresponsive to the non-events of my Orders of 2012.

21. The mother continues her life and her relationships with her family. She has re-partnered. All indications are that she lives a stable and successful life and there is no suggestion that the children are other than well-adjusted and well cared for. They are now of school age. She was candid in her statement to the Court that she would simply prefer that Mr Ayton be completely absent from hers and the children’s lives. I have no doubt that her teenage liaison with Mr Ayton and his then lifestyle preferences is something that she very much regrets.

22. At the reconvening of the Trial the parties’ positions remained at the extremes. The father sought direct time with the children. The mother argued for an Order for no time or communication between the children and the father. Cross-examination of the father by the Independent Children’s Lawyer, however, produced a third option being that the children have no direct contact with the father but communicate with him by letter. Indeed, in his final submissions the father seemed to adopt this as a viable option whilst not retreating from his preferred position. Similarly, the mother in her submissions also accepted such an option as reasonable and committed to providing the communications to the children and assisting in responses. I should say that I found this revelation from the mother to be somewhat surprising given the tenor of her evidence, and in particular that of her therapist Ms J, who both indicated that it was the mere connection for Ms Essex with Mr Ayton which would aggravate Ms Essex’s post-traumatic stress disorder symptoms and hence bring negative impact on her parenting. Frankly, I have some difficulty in understanding any difference in respect of the mother’s response to a scenario where the children would have direct time with their father supervised in a contact centre but without any direct involvement of the mother whatsoever and, secondly, a situation where the mother would be obliged to pass on communications involving letters, cards and photographs from the father to the children and assisting them in responding. This involves, at the very least, some form of connection for Ms Essex whereas the children might be taken to and collected from a secure contact centre by a third party although both the mother and her psychologist claim this to be likely to trigger the symptoms of her post-traumatic stress and significantly negatively impact her parenting capacity. Nevertheless, when challenged with this conundrum, the mother, in her usual assertive and confident style, was able to tell the Court that she would adhere to any Orders obliging her to pass on correspondence from the father to the children and assist them in their response.

Discussion and Conclusions.

1. In the main, the evidence has been referenced to the relevant section 60CC(2) factors of the Act in my reasons of 18 July 2012. The specific factors that should be re-addressed given the flux of time are, firstly s.60CC(2)(a) “the benefit to the children of having a meaningful relationship with both of their parents”.

2. This is a prospective notion but one based on a consideration of the current relationship between children and their father. Put simply, there is no current relationship. The older child was an infant when she last had any direct contact with the father. Whilst I have some scepticism as to Ms J’s opinion as to the memory retention of an 18 month year old child (Ms J’s evidence in this respect being as to the child recalling the volatile relationship between the parents) there is simply no current relationship. The time-with proposed by the father is limited in the foreseeable future to short periods of time supervised in a contact centre.

3. The father’s case is that the children should be able to establish and maintain their identity through a direct relationship with him with an inference being that this might constitute a meaningful relationship. The word “meaningful” is not defined in the Act but is most commonly seen as being analogous to “important”, “significant” or “valuable”. The nature of any such relationship should focus on its quality rather than simply an allocation of quantities of time.

4. Certainly, the father is mistaken if he understands that the obligation for the Court is to simply make Orders that are most likely to ensure children have a “meaningful relationship” with their parents. The task is a much broader one as observed by the Full Court in Champness v Hanson[1] as follows:

   The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the Trial Judge to make the orders most likely to ensure that the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interest. In seeking to achieve that objective, s60CC(2)(a) directs the Court to consider “the benefit to the child” having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.

   [1] [2009] FamCAFC 96

5. It cannot be disputed that these children currently have no relationship with their father. They are, however, still very young. The mother says that they are aware that they have a biological father different from her own partner. They are in the early years of their education and it is reasonable to assume that they will become inquisitive as to the identity and whereabouts of their own biological father. The mother says that she is not opposed per se to the concept of the children having a relationship with both parents. Whilst she opposes a direct relationship of any form, she insists that she has not infected the children with her own opinions in this regard. Taking all of these matters into account it might be reasonable to expect these children could adjust reasonably easy to the reintroduction of their father. They are not infants. They are in a process of socialisation at school and elsewhere. Meeting new adults is not a novel experience for them. The mother says that she has not imparted her own negative views of Mr Ayton onto the children. It follows that the children should not experience any undue anxiety or distress in being re-introduced to their father. Of course, if I am wrong in this regard and Ms Essex has infected the children with her own negative views of the father then it would be reasonable to expect the children to be apprehensive of any meeting with him. By way of comment, I am still unable to understand, therefore, the reason for the children’s distress on the two visits to the contact centre given the factors that I have just articulated. Certainly, I have difficulty accepting the view of the mother and her therapist that children at five and three years of age would be able to rationalise and be imbued with the unspoken apparent anxieties of their mother with some connection to a visit to a contact centre. Such a notion does not, in my experience in these Courts, sit well with most expert opinion as to the capabilities of such young children.

1. The concerns I have in respect of the father’s case are in relation to any “benefit” for these young children in having a relationship in the terms sought by him in his application. It would be a relationship constrained by the dictates of a contact centre and hence infrequent and for short durations. The opportunities to develop a full and meaningful relationship would be necessarily limited. Further, there is no apparent “sunset” clause on the father’s proposal. Practicalities and the experience of Courts over a number of years suggest that ongoing supervised contact, and especially at a contact centre, is not a reasonable or recommended long term option. In addition, I am reasonably satisfied that this mother has, despite her lip-service, a vehement and entrenched opposition to time taking place between the children and the father. It would be unlikely, in my view, for her to be able to objectively encourage and facilitate the children’s transit to a relationship with the father given her own entrenched views and her unhappy memories of her own relationship with Mr Ayton which are clearly supported by her therapist. It is highly likely therefore, in my view, that these young children would again approach time with their father very much armed with their mother’s opinions and not only by way of some subliminal osmosis as suggested by Ms J. Further, after hearing the evidence of Ms J and considering her affidavit, it would be difficult for Ms Essex to achieve any real degree of objectivity given her long relationship and reliance on the counsellor together with what I see as some of the unbalanced, unsubstantiated and generalised opinions proffered by this therapist. For example, Ms J’s offer at [16-19] of her second affidavit is of little assistance to the Court, and any intended analogy with Mr Ayton is unwanted,  when she poses:

   [16] It is to Ms Essex’s enormous credit that she does and always has been a good mother. Her symptoms if she is allowed some peace may diminish. She is a very intelligent and diligent young woman. She managed to escape her situation only to be put in a situation with the Family Court where her trauma has to be revisited constantly. The cruelty is profound.

   [17] In my professional opinion, and in my personal opinion, it is extremely important in most situations that a child has a relationship with both biological parents.

   [18] There are exceptions to this however. For example: Robert Farqhuarson or the father of Luke Batty.

   [19] Extreme care must be taken.

2. The second mandated consideration is that I must make Orders which protect children, where necessary, from emotional and psychological abuse. The mother says that the children will be distressed by spending time with their father. She must base this view on the two isolated experiences from 2012. The children, however, are now older and more socialised by reason of their maturity and attendance at school and must inevitably have met a number of adults outside their immediate family. The mother says that she does not infect the children with her own opinions. This being the case, I repeat that I find it difficult to accept the view of the mother (as supported by her therapist, Ms J) that these children would be distressed, as opposed to understandable anticipatory trepidation of the unknown, by the simple prospect of meeting their father. Of course, if the mother is not to be believed in respect of her refraining from influencing the children then conversely these children might reasonably be expected to exhibit anxiety and real distress at the prospect.

3. Thirdly, I am to consider the capacity of each of the parents to attend to the children’s physical, intellectual and emotional needs. Despite the father’s serious and various limitations, this is not a factor of great relevance given the relatively constrained and limited time he anticipates spending with his children. The real issue here is the capacity of the mother to properly parent the children if they enter into a regime of spending time with the father. The mother and Ms J say that she suffers from post-traumatic stress disorder and that her symptoms will be aggravated by this prospect. I cannot be satisfied, however, on the balance of probabilities, that this is the case. Again, I rely on the evidence of Dr M and my own observations of the mother’s demeanour whilst placing little weight on what I see as the partisan opinions of Ms J , such opinions, in my view, coloured by her commitment as the mother’s therapist.

4. I have before me the evidence of Dr M from 2012. She described the mother’s strength of character and her ability to “cope”. My observations of the mother are detailed above and remain consistent with those from 2012. Consequently I prefer, on the balance of probabilities, that this mother is a good, strong, successful parent. She is intelligent and well informed in respect of the issues before this Court. I anticipate that she would understand and accept the safety afforded to her children by a contact centre. Whilst her own opinions of Mr Ayton are understandable and perhaps justified, she has now extracted herself from that situation. I do not accept that there is any reasonable nexus between Ms Essex’s fears of Mr Ayton, her views as to him personally, and any impact on her parenting capacity.

5. There are certain limitations in the options available to me by reason of the positions of the parties in this case. Ironically, if I was to accept Mr Ayton’s argument that the mother deliberately pursues an agenda to erase him from the children’s lives and her own history then there seems little prospect of, or benefit in, the children having an ongoing relationship with him. The likelihood would be that the mother would continue in her manipulative behaviour. The children would inevitably be distressed by the prospect of direct contact with their father. They are still young and vulnerable to influence. The suggestion by the father in his final submissions that the mother might improve “after six months” is unrealistic and not a conclusion available to me on the evidence. Put simply, if the mother thwarts the father’s relationship with the children then it will be unsuccessful and of no benefit to them. This, of course, would be a tragic and undesirable result for these children. A usual option available to the Court on such a factual platform is to place the children with the other parent. That is not an option here.

6. I am satisfied on the balance of probabilities that the mother does pursue her own agenda. It may well be justified in her mind and to some who properly abhor family violence or those that support her. I am not satisfied that she could even passively encourage and facilitate a direct relationship between the children and their father. The more likely scenario is one of active opposition. I am satisfied that these young children have been and will continue to be infected with their mother’s negativity.

7. Secondly, I am not satisfied that there is any actual or potential benefit to these children of a direct contact relationship with their father in the context proposed by him. The strongest likelihood would be that they would be leaving a home very much hostile towards the father. His experience and skills with children in those circumstances are virtually non-existent. The circumstances of supervised time with the children give little prospect of a developing or flourishing relationship. Long term assistance from the contact centre is unlikely. No other prospective or acceptable alternative supervisors have been seriously nominated. It follows that any direct time relationship between the children and the father would bring with it numerous actual and potential difficulties and constraints. The father’s own mental and physical problems are tragic but objectively give little scope or confidence for his participation in any more active or productive way with these children in the future. The children themselves are likely to rapidly become frustrated by the confines and limitations of a contact centre. It seems inevitable and corroborated by the failed interim arrangement, that the benefits of a direct time-with relationship between the father and children will be few, limited and problematic.

8. I am gladdened, however, by the suggestion and concession by each of Mr Ayton and Ms Essex of a communication relationship by letter or card between the children and father. This would serve to maintain the identity and understanding of the children of their father which is a prime initiative of Mr Ayton. It will not involve the anticipated hesitation, reluctance or distress that might accompany a process of direct contact. Of course, should these children be more assertive of their enquiries in the future then they might themselves seek to meet with their father. Alternatively, should the mother come to terms with her own former relationship with Mr Ayton, then she might see herself in a position where she could assist in establishing a direct relationship. These are possibilities reasonably open to the parties in the future.

9. I intend to make Orders for the father to communicate by letter/card/photograph with the children on a reasonable but not onerous basis and is an option urged by the Independent Children’s Lawyer. Given the mother’s own concession, I will make Orders for her to assist the children in making responses to the father. I suggest communications not more frequent than each month together with anniversaries including Christmas and each child’s birthday. I stress that such Order would be predicated in the mother’s own volunteered comment that he would be agreeable to an Order and regime in these terms. Inherent in the Order is the obligation on the mother to provide the children with the communications and to encourage and assist in responses from the children. I would anticipate the father therefore receiving information from the children as to any milestones reached, their schooling and their extra-curricular interests. Importantly, there is nothing in these Orders which would prohibit any appropriate extension of the relationship between children and father in the future for this reason there will be an important “otherwise as agreed between the parents” clause.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  30 April 2015