Barak and Veitch
[2008] FMCAfam 335
•31 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARAK & VEITCH | [2008] FMCAfam 335 |
| FAMILY LAW – Parenting – estrangement from children – weight given to teenage children’s clearly expressed views. |
| Family Law Act 1975, ss.4, Part VII Division 1, 60CC(2), (2)(a), 60CC (3)(a), (b), (c), (i), (j), 60CC (4), 60CC (4A), 60CD, Part VII, Division 2, 61B, 61C, 61DA, 65DAA, 65DAC, 65DAE |
| C & C [2004] FamCA 708 Bates, F., “`Completing the Charm’: The Relevance of Children’s Wishes in Contested Cases: A Contextual Commentary,” (2003) 5 Newcastle Law Review 97 Parkinson, P., “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179 |
| Applicant: | MR BARAK |
| Respondent: | MS VEITCH |
| File Number: | CAM 319 of 2006 |
| Judgment of: | Neville FM |
| Hearing dates: | 15, 16 & 20 November 2007 |
| Date of Last Submission: | 20 November 2007 |
| Delivered at: | Canberra |
| Delivered on: | 31 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Elrington Boardman Allport Lawyers |
| Counsel for the Respondent: | Mr Hubert |
| Solicitor for the Respondent: | Capon and Hubert Barristers & Solicitors |
| Independent Children’s Lawyer: | Mr Stagg |
ORDERS
All previous Orders are discharged.
The parents have equal shared parental responsibility for the children S born in 1993 and P born in 1994.
S and P will continue to live with their Mother.
S and P will attend upon Ms H, Clinical Psychologist, for counselling. At the conclusion of that counselling it is for Ms H to assess and make any recommendation(s) in relation to whether there is to be any joint counselling session(s) with their Father, and if so, when, where and how that is to occur. It is requested that Ms H provide copies of any assessment or report to the Court, both parents and to the Independent Children’s Lawyer.
After three months of the date of these Orders, the Father is permitted to forward appropriate cards, gifts, and correspondence to S and P. The Mother will ensure that any such correspondence is passed to the girls.
S and P will spend time and communicate with their father at times and in a manner upon which they themselves request. Their Mother is to facilitate any such time with their Father that the girls request.
In twelve months from the date of these Orders, the parties and the girls will attend upon Ms Lang, Family Consultant for the Family Court of Australia, for the purposes of Ms Lang producing a further Family Report to the Court. The parents will be notified in writing of the dates and times for any interviews to occur for the purpose of producing such a report.
Nothing in these Orders will prevent the parents reaching an agreement in writing, regarding the time and manner in which the girls spend time with their father.
Neither parent shall discuss these proceedings with S and P, nor cause or permit anybody else to do so.
Neither parent will denigrate the other parent, to or in front of the child, nor cause or permit anybody else to do so.
AND IT IS NOTED:
(a)I request that the Independent Children’s Lawyer explain these reasons and Orders to the girls.
(b)Only with the written agreement of both parties shall the girls be permitted to read this judgment.
IT IS NOTED that publication of this judgment under the pseudonym Barak & Veitch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 319 of 2006
| MR BARAK |
Applicant
And
| MS VEITCH |
Respondent
REASONS FOR JUDGMENT
Introduction
In the course of the hearing of this matter an image of sorts kept recurring as I listened to the parties’ evidence. Recounting the image may give some readily accessible overview of the central issue to be determined in this matter and the orders made in the light of it.
The image that came to mind was of one parent standing on a precipice calling plaintively to the other parent and the children. The latter stood on a similar precipice. A large chasm separated them. There were also ruins of a bridge that once spanned the abyss. Some foundations remained in place. The foundations themselves had become unstable.
What was also clear, both in the image and in the light of the evidence, is that the [relational] bridge’s collapse was caused predominantly by the actions of one of the parents. But, the continued erosion of its foundations was not only a result of the natural weathering process that can attend human endeavour over time but also by some action and inaction by the other parent.
Metaphorically, this image presents the issue to be addressed by the Court, which is how to facilitate the rebuilding of the relational bridge between Mr Barak and his two teenage daughters, S and P (“the girls”). To a very significant degree, the destruction of the bridge has been of his own doing. I explain below, and as summarily as possible, why I hold such a view. For her part, Ms Veitch, Mr Barak’s former wife and the girls’ mother, has not facilitated, to any significant degree, any serious rapprochement between Mr Barak and the girls. While much of her attitude towards Mr Barak is readily understandable in the light of the facts and circumstances of the matter, some of which are noted below, its flow-on effects with the girls has been less than helpful.
The issue facing the Court is to craft orders that might begin a process of reconstruction of the relationship between S and P (who live with their Mother and with whom they have a close relationship) and their Father. For some time, specifically since they learnt of their Father having an extra-marital relationship, the girls have adopted and exhibited consistently and persistently an attitude of hostility towards him.
Whatever the reasons for this, and quite a number of them are also perfectly understandable if not perhaps morally justifiable to some degree, the estrangement between Father and daughters is both unproductive and ultimately not in anyone’s interests, and certainly not in the best interests of S and P.
These reasons seek to explore the relevant circumstances which have given rise to the current impasse and what might be done to facilitate some bridge-building and reconciliation between Mr Barak and his daughters. It may be, however, that some therapeutic assistance is required solely for the girls and that this occurs without the immediate prospect of them being required to spend time in counselling with their Father.
To take this a little further, I should say even at this early stage of my reasons that I do not think it is in the girls’ best interests to be ordered to undertake counselling or any other action which has, as its ultimate or immediate goal, meeting with their Father. That important goal must be some time and distance away. Ultimately, the ebb and flow of the healing waters of time, together with the most discreet therapeutic intervention, seem to me to be the only solution to the terrible level of estrangement between the girls and their Father. They have both expressed the view very forcefully that they will speak, let alone spend any time, with him only when they are ready. It is time to consider the facts of the matter and the relevant law that might be brought to bear to aid both parties and their children.
Relevant summary of facts
S and P are the daughters of Mr Barak (the Applicant) and Ms Veitch. They were born in 1993 and 1994, making them 15 and 13 years old respectively.
The parties were married in 1991. They separated in difficult circumstances in February 2006. The girls’ parents both work for the same government agency. Until relatively recently, Mr Barak worked full-time. He says that due to stress associated with matters before this Court, on medical advice, in July 2007 he reduced his full-time work to part-time. Also for health reasons, Ms Veitch works part-time.
In detailed affidavits filed by both parties in these proceedings, and in the course of the trial, a number of matters concerning the strained relationship between the parties were canvassed. They included allegations of the significant use of alcohol by both parties, Mr Barak’s use of pornography, his collection of sex aids, which Ms Veitch on one occasion placed on the driveway of the matrimonial home, and an on-going dispute about the manner by which Mr Barak pays child support.[1] He wishes to pay it directly to his family; Ms Veitch wishes it to be assessed and collected by the usual means of the Child Support Agency. She wishes this to continue so as to keep a certain distance between herself and Mr Barak.[2]
[1] Mr Barak’s possession of pornography, and sex aids, is referred to in Ms Veitch’s evidence: Transcript (16th November 2007) pp.133-34 & 115 respectively.
[2] Among a number of places where “child support” is discussed, see Mr Barak’s evidence: Transcript (16th November 2007) p.49. At various times, including in discussions with Ms Lang, Mr Barak expressed the view that if he was to have no meaningful involvement in or communication with the girls, Ms Veitch should assume the financial responsibility for them. Perhaps the often-cited words of Gummow & Callinan JJ regarding parental sacrifice (moral and legal) in U v U (2002) 211 CLR 238 at [92] are salutary in more than the relocation context of that signal case. In my view, they have wider application.
In my view, it is unnecessary to make any comment on, let alone any formal determination in relation to, these matters. While some of them, especially child support, are very important not least because it has been the girls’ [erroneous] view that their Father has refused to pay child support, they are not at the heart of the matters that require judicial determination in these proceedings. Those matters, as I have already indicated, concern orders that relate to S and P’s best interests and their relationship with their Father.
More directly relevant to the central issue concerning the girls are a number of incidents involving their parents, which the girls understandably seem to have focussed on, and which have patently and negatively affected their relationship with Mr Barak. There is also one matter alleged against Mr Barak, which understandably has deeply affected him and thereby strained even further the relationship between the parties. The three matters, summarily stated, are: the girls’ knowledge of Mr Barak’s admitted extra-marital relationship;[3] the girls’ witnessing Mr Barak and Ms Veitch in a physical struggle (in which it is alleged that Mr Barak attempted to strangle Ms Veitch); and an allegation that Mr Barak sexually molested S. Only to the degree necessary to the making of orders in relation to the girls will I deal with these matters.
[3] Ms Veitch gave evidence that she was unaware of problems in the marriage before 2005. She also gave evidence that S had seen her Father at a shopping centre with women and was embarrassed by it. Transcript (16th November 2007) pp.73 & 98 respectively.
Factual context
Both parties filed several affidavits in these proceedings, together with affidavits from a number of other people. The Court also has the significant benefit of two Family Reports from Ms Lang, a highly experienced Family Consultant attached to the Family Court. Those reports are dated 24th October 2006 and 16th May 2007 respectively.[4] Unsurprisingly, a large part of the content of the affidavits relates to denying, challenging or correcting the other party’s version of a particular event, or describing one party’s talents, capacity and or care for the girls, and by implication, thereby disputing the alternative or competing view of the other parent.
[4] The Reports became exhibits during the trial, “C1” and “C2” respectively.
It is not this Court’s task to determine the various causes or reasons for the breakdown of the relationship between Mr Barak and Ms Veitch, or to ascribe blame therefore. That said, a number of matters speak loudly and strongly for themselves. This Court is required to consider those matters that are directly relevant to determining what parenting orders are in S’s and P’s best interests. In a number of respects, however, in ventilating various facts and issues, there is the prospect – perhaps/hopefully - that parties will, so to speak, `get some things off their chests’, which in turn may enable them to move on so that the parenting of their children can take centre stage.
The patent and deep strains between the parents, leaving aside questions of when any incident relied upon occurred, the details and circumstances surrounding it, and what weight should be ascribed to it, are relevant considerations to the important statutory consideration in s.60CC(3)(c) of the Act regarding the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. For my part, this was and remains one of the crucial issues in the litigation, and in a number of respects, a more critical factor than any of the incidents – individual or collective - recounted or relied on by the parties.
By focussing on a few highly contested incidents, understandable and critical as they are – especially in the eyes of the girls - the accent during the hearing on what might be described (without criticism) as the dysfunctional features of the family under great pressure tended to give something of a disproportionate emphasis to the stresses and strains in the family’s life. The family corporately, and the individuals who comprised it, were all understandably torn if not traumatised by the breakdown of the relationship between the girls’ parents.
Put another way, the various specific or discrete incidents recounted by the parties and put in evidence are directly relevant, in my view, only to the degree that they can establish, or otherwise show or facilitate, what the parenting orders should be that are in the girls’ best interests. As I have already stated, it is not this Court’s function per se to make determinations about the culpability or otherwise of parents whose once evidently close relationship was brought under great strain, sometimes by virtue of one party’s unfortunate conduct and bifurcated life, sometimes because of the conduct of both parties. Still less is it the Court’s role to punish or penalise any parent on account of human failure, frailty, neglect or otherwise, save where such conduct attracts any of the considerations set out in s.60CC(2)(b) and s.60CC(3)(j) – or any other sub-section of s.60CC – and thereby requires the Court to protect the children involved. This is especially so where, as is the case here, the children involved are adolescents with firm views of their own about what should and should not happen in their lives.
Mr Barak admitted that there had been one extra-marital relationship.[5]
[5] Transcript (16th November 2007) p.44. While he admitted an extra-marital relationship elsewhere, this admission came in the course of Mr Barak’s cross-examination by Mr Stagg, the independent children’s lawyer. Mr Stagg had put a scenario to him, which was essentially stated to be the girls’ knowledge, that Mr Barak had had “affairs” during the marriage with Ms Veitch. He denied that there had been more than one. In answer to a question that I put to him, Mr Barak confirmed that this one affair had commenced in `early 1998/1999’, the initial period, and that it had continued – after a break – in 2003. He then confirmed that he could not continue with two separate lives, one with his wife and children at home, and another secret life with another woman. That relationship finally ended in 2004 after which he instigated counselling, initially for himself and then with his wife, in early 2005. Transcript (16th November 2007) p.58.
Mr Barak also confirmed that there had been a physical contest between he and Ms Veitch, some part of which (at least) had been viewed by the children. Their view of it, according to Mr Stagg, was that Mr Barak had [ultimately] overpowered his wife and ended up on top of her. He denied that he had assaulted her.
The third matter of particular significance, perhaps more so for the parties than for the girls, was the allegation that Mr Barak sexually molested his daughter S. Clearly, and understandably, Mr Barak is deeply grieved about the allegation, which he vehemently denies, with which he has been forced to live for some time. In his evidence,
Mr Barak used the strongest possible language to describe the accusation that he claims has been consistently made against him, including that he had raped his daughter.
In various ways in the course of the trial, this allegation was rightly put to rest. Ms Veitch stated that she did not think Mr Barak `had touched S’, while Ms Lang confirmed that S confirmed to her that her Father had not touched her inappropriately.[6]
[6] Transcript (16th November 2007) p.129 (Ms Veitch). In response to a question from me, Ms Lang stated: “…as far as S was concerned, that was not – anything of a sort has happened.” (Transcript: p.156)
Although Mr Barak is, hopefully, somewhat comforted by the public confirmation in Court that no such allegation has any substance to it, he clearly remains hurt and angry at what he sees as Ms Veitch exacerbating the estrangement between the girls and himself. The sexual molestation allegation could be seen perhaps as the apotheosis of a course of conduct by Ms Veitch, which Mr Barak sees as calculated to alienate the girls from him. While not denying
Ms Veitch’s import to the girls’ attitude towards their Father,
Mr Barak’s view that Ms Veitch was the prime if not sole force behind alienating the girls from him was challenged forcefully by Mr Stagg.[7]
[7] Transcript (16th November 2007) p.44.
It seems to me that Ms Veitch has involved the girls in aspects of some adult matters that should have been kept between the parents, such as issues concerning the dispute over child support.[8] She also appears not to have exercised appropriate restraint on the girls’ very brief correspondence with their Father.[9]
[8] See for example the discussion at Transcript (16th November 2007) pp.77 & 78.
[9] See Transcript (16th November 2007) pp.132, 133, 138-39 & 140.
Some of her evidence I found implausible, such as her lack of recollection of whether she used the word “paedophile” in relation to the accusation against Mr Barak about molesting S.[10] The use of so grave a word as “paedophile” in circumstances of such a serious accusation against Mr Barak involving S are unlikely, in my view, to be easily forgotten. Similarly, her lack of recollection of what she did and did not tell the police about the same accusation has a ring of implausibility about it.[11] It may be, of course, that her lack of recollection is explicable as a reaction to the trauma of the time and that one way of dealing with it is, so to speak, to have parts of the events erased from one’s memory banks.
[10] Transcript (16th November 2007) 84.
[11] Transcript (16th November 2007) p.93.
I accept Ms Veitch’s evidence that she has now, to a significant degree, “moved on” in her life and that her degree of hostility towards
Mr Barak is not what it once was. She admitted, however, that there continued to be a considerable degree of animus towards Mr Barak, which is well known to the girls.[12] I also accept that, theoretically at least, she is content to pass on presents from Mr Barak to the girls. She also readily acknowledged that he should play an important part in the girls’ lives. The practical implementation of these things has not fully reached the theoretical ideal. Indeed, it would be almost trite to observe that it will likely take some time yet for the wounds of the recent past to heal such that, as she said in evidence, any discussion at home about Mr Barak does not arouse anger – to some degree – in either Ms Veitch and or the girls.[13]
[12] Transcript (16th November 2007) p.140.
[13] Transcript (16th November 2007) p.140.
I should also make an observation about Mr Barak’s evidence. In a number of respects I accept the import of Mr Stagg’s question to
Mr Barak, to which I have already referred, when it was put to him that Mr Barak seems to attribute his estranged relationship with S and P, to a significant degree, to the actions of Ms Veitch. Regrettably, his evidence suggested that he does not appreciate, or do so sufficiently, that his once bifurcated life – one with the family while at the same time having a relationship with another woman – was calculated to deceive.[14] When this concealed relationship was revealed to
Ms Veitch, and the girls learnt of it, understandably it strained if not ruptured the bonds of trust, and not a few other dimensions, of the familial relationships involved. He is remorseful of his actions. However, his evidence indicated that he did not appreciate, or sufficiently so, the degree to which his deliberate actions, once they were revealed, had fractured his relationship with both daughters, not to mention his wife. Hence Mr Stagg putting to Mr Barak that his daughters were, and remain, “extremely angry” with their Father and that they were not ready to see him. They would do so when they were ready.[15] Not completely unreasonably, Mr Barak asked rhetorically but nonetheless plaintively how long they could remain in this state without some therapeutic intervention.[16]
[14] It is unnecessary to recount here anything of the classical ethical tradition, which deals with basic human virtues of truth and justice as essential to relationships of “friendship.” A fortiori is this so in family relationships. Generally, see for example, Aristotle, Nicomachean Ethics ; J. Annas, The Morality of Happiness, (New York: Oxford University Press, 1993); A. Kenny, Aristotle on the Perfect Life, (Oxford: Clarendon Press, 1992 [reprint 1995]); A. MacIntyre, A Short History of Ethics, (London: Routledge & Kegan Paul, 1966 [reprint 1984]); A. MacIntyre, After Virtue, (Second Edition) (Notre Dame: University of Notre Dame Press, 1984).
[15] Among other places, see Transcript (16th November 2007) p.57.
[16] Ibid. Mr Barak wants a parenting plan to provide for counselling with the girls.
Because of what has been said already, I do not think it serves any purpose to stir up further or rake over other embers as between the parties that are, in my view, best left now to burn themselves out slowly either over time and or with some assistance from appropriate counselling. As I have already stated, it is more important and hopefully therapeutic for the girls, and no less so for their parents, that this Court focus its attention on what orders it considers are in their best interests. This needs to be done in the light of the girls’ expressed views and the evidence of Ms Lang. Borrowing from the title of one of Graham Greene’s famous novels (which also involved an extra-marital relationship), we are now at `the heart of the matter’ of these proceedings.[17]
[17] Mr Hubert, for Ms Veitch, acknowledged as much when he confirmed, at the conclusion of the evidence: “Effectively, it is a short issue.” Transcript (16th November 2007) p.158. I understood him to say by this that, whatever the strains and causes thereof in the relationship between the parties, the central issue concerned the appropriate parenting orders in relation to S and P.
By and large, the remainder of these reasons is concerned with two things: (a) examining what might be the most appropriate `therapeutic intervention’ for the girls, particularly in the light of their strongly expressed view that they are not ready to see or spend time with their Father; and (b) considering and applying relevant legal principles, particularly those relating to the weight to be given to the expressed views of teenage children.
The heart of the matter: S’s and P’s views
I have already mentioned Mr Stagg’s questions and propositions in cross-examination to Mr Barak which confirmed the attitude of the girls towards their Father and their views as to whether and when they might be agreeable to see him.[18]
[18] Again, see, for example, Transcript (16th November 2007) p.57. In cross-examination by Ms Tonkin, Counsel for Mr Barak, Ms Veitch agreed that as far as she was concerned “the children do need their father in their life.” She also acknowledged that it is their wish “not to have any contact with their father.” Transcript (16th November 2007) p.111.
By way of further summary, at the conclusion of cross-examination of Mr Barak by Mr Stagg, the following exchange took place which, in my view, highlights the inherent tension between the orders sought by Mr Barak, in the light of the girls strongly held and strongly expressed views:
[Mr Stagg] If I put it to you that the attitude of the children that comes out of the report – or the reports, plural, from Ms Lang, and certainly from my observations as well is that their attitude seems to be, we want both of you [i.e. both parents] to leave us alone; don’t involve us in your own – in disputes between the two of you, let us get on with our own lives. What would your response to that be? … [Mr Barak] I’ve written letters suggesting draft parenting agreements which say exactly that.
So you wouldn’t disagree? … No. The hope is that eventually the children will come to some understanding and make choices.[19]
[19] Transcript (16th November 2007) p.58.
I move to a consideration of the material in Ms Lang’s two reports, as well as her testimony given in the course of the trial.
In her first report of 24th October 2006, Ms Lang recorded that
Ms Veitch stated to her that the girls believed that their Father “doesn’t care [about them]”[20] Ms Lang also recorded that S was adamant that she did not want to spend any time with her Father, and that “he had his chances.” In relation to P, Ms Lang recorded that “what he done was wrong – nothing can repair that.” Ms Lang also confirmed in that Report (p.3) that P was adamant she did not want to spend time or communicate with her Father. That view also extended to Mr Barak’s side of the family. In that Report, Ms Lang noted the obvious situation whereby the girls had aligned themselves with their Mother.
[20] Report (24th October 2006) p.1.
Ms Lang concluded her Report saying that “… it is likely to be counter-productive for the girls to be obliged to spend time with their father or obliged to communicate with him.” A strong sentiment expressed in this Report from the girls was that Mr Barak was dismissive of their views. He expressed somewhat similar sentiments in his evidence during the trial, at the same time acknowledging that both girls are highly intelligent and strong-willed.[21]
[21] See for example Transcript (16th November 2007) p.45. Earlier he had acknowledged that the girls were so damaged that any reconciliation between he and the girls needed to occur slowly. Transcript (15th November 2007) p.37. While that was an important acknowledgment, it was somewhat undermined by his later disagreement with Mr Stagg about the clearly expressed and consistent views of the girls not wanting to see any counsellors. Transcript (16th November 2007) p.43.
In her second Report (of May 2007), Ms Lang recorded that from
Mr Barak’s perspective, nothing had changed; the girls had continued to have no meaningful communication with him. She recorded
Mr Barak’s view that some joint counselling should take place with him and the girls “as an intermediate step towards a shared parenting arrangement.”
Ms Lang also noted P’s “advice” or wish, that much pressure would be relieved if Mr Barak ceased the Court proceedings. Ms Lang recorded: “I would know that I didn’t have to live with him – I would feel better.” Regarding communication with him, P said to Ms Lang: “I’m just not ready – I’m sick of the pressure.”
According to Ms Lang, S’s attitude to her Father had changed somewhat, largely it would seem from participation in a Parenting Orders Program, which involved the girls. S, according to Ms Lang, Ms Veitch and Mr Stagg, has quite a nuanced if not (in Mr Stagg’s words) “sophisticated understanding of the situation.”[22]
I accept Mr Stagg’s submission that S is now not angry with her Father but still feels betrayed by him. I also accept his description of the relationship between S and her Father, largely borrowed from
Ms Lang: “Leave me alone. Let me get on with my own life.
I don’t want to be involved in your feud.”[23]
[22] Transcript (19th November 2007) p.175.
[23] Transcript (20th November 2007) p.175. In the same place he advised the Court that S’s comments to him directly were to similar effect. In Ms Lang’s May 2007 Report, she noted that S again reiterated that she would see her Father when she was ready, and that joint counselling with her Father might assist “maybe down the track, but not at the moment”. She was also amendable to him writing to her but without any pressure or expectation that she would reply.
Quite reasonably, Mr Stagg observed that the position of the two sisters and their respective ages complicated the orders that should be made. He opined that if P was an only child an order requiring counselling that would have the prospect of joint counselling time with her Father might be apt. However, to force such a situation on her when such a course would not be appropriate, in his view, for her older sister, was fraught with problems and counter-productive. In such circumstances, he could not and would not recommend that the girls be forced to have counselling that has, as its ultimate prospect, counselling with and or seeing their Father. He submitted that the only order to be made is that the children attend counselling, without any expectation or probability that it would inevitably lead to meeting and spending time with their Father. Ultimately, in the light of the evidence I accept that submission.
I also accept Ms Lang’s conclusion from her second Report (p.3), which accords with that which was put at trial by the independent children’s lawyer:
It would appear that the prospect of the children establishing a relationship with their father might occur in the long term rather than in the near future. Typical of adolescents, S and P wish to focus on their education, jobs, peer relationships and interests. They are angry when their lifestyle is disrupted by the parental dispute. The girls blame their father and are resentful of the pressure caused by his proposal of shared care and Court action.
Ms Lang made the important observation in her evidence during the trial that the utility of any counselling with or for the girls would be dependent upon how they were prepared for it. Rightly, in my view, she insisted on the importance of the girls being properly prepared for any therapeutic intervention.[24]
[24] Transcript (16th November 2007) pp.154 & 157. She put it simply and succinctly later: “… the children need to be involved in the process.” Transcript (16th November 2007) p.156. See here also Carmody J’s important observations in Dylan & Dylan where, at [181], his Honour said: “The domestic law is supposed to include procedural requirements designed to ensure that the decision-making process is fair and pays due respect to the children’s interests and wishes by giving him or her a meaningful opportunity to genuinely participate in the process through which decisions[s] affecting them are made.” Similar sentiments had been expressed by Baker J in Harrison and Woollard (1995) 18 Fam LR at p.820. More recently, see also the helpful discussion by Nicola Taylor in “What do we know about involving children and young people in family law decision making? A research update,” (2006) 20 Australian Journal of Family Law 154, especially the section styled “Participation of children in family law proceedings: Children and their right to participate.”
It remains now to consider the relevant legal principles to be applied to the facts to determine what the parenting orders should be that are in S’s and P’s best interests.
Children’s views: Legal principles
The statutory loci regarding “children’s views” is in ss.60CC(3)(a) and 60CD. For the purposes of assisting the resolution of the central issues in this case regarding “children’s views”, perhaps four cases are most germane. They are: Harrison and Woollard (H & W) (1995) 18 Fam LR 788 (the children were aged 8 & 7); R and R: Children’s Wishes (2000) 25 Fam LR 712 (children 12½ & 10); In the Marriage of
R (Children’s Wishes) (2002) FLC ¶93-108 (children aged 14, 11 and 9); and Dylan & Dylan [2007] FamCA 842 (children aged 15 & 10).[25][25] To these may be added Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 113; Department of Health & Community Services v JWB & SMB (Marion’s Case) 1992) 175 CLR 218; ZN v YH & Anor [2002] FamCA 453 and C & C [2004] FamCA 708. Among various secondary literature, see also F. Bates, “`Completing the Charm’: The Relevance of Children’s Wishes in Contested Cases: A Contextual Commentary,” (2003) 5 Newcastle Law Review 97 and N. Taylor, “What do we know about involving children and young people in family law decision making? A research update,” (2006) 20 Australian Journal of Family Law 154.
The following may suffice as a distillation of appellate and superior court judicial principle regarding the relevance and weight to be given to children’s wishes. I begin with an older High Court discussion. In Reynolds and Reynolds, Mason J said (Menzies & Walsh JJ agreeing):
The admissibility in custody proceedings of statements by children of the kind in question is a difficult subject. The relationship which exists between a child and its parent is plainly a relevant consideration and the wish of a child (of reasonable age) to live with one parent rather than the other is a matter to be taken into account by the court, although the weight to be given to it will depend upon the circumstances of the case.[26]
[26] (1973) 47 ALJR 499 at p.502. It is sufficient to note here that the significance of Gillick’s Case and Marion’s Case for present purposes is the respective discussions by the House of Lords and the High Court of the gradually increasing weight to be accorded the wishes and responsibilities of young people. It is summarised precisely by Deane J in Marion’s Case where he said (1992) 175 CLR at [7] of his judgment: “The … extent of the legal capacity of a young person to make decisions for herself or himself is not susceptible of precise abstract definition. Pending the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of the particular young person.” It will be recalled that the High Court endorsed the views of Lord Scarman in Gillick as representing the common law in Australia with respect to the capacity of children to give consent to medical treatment. See the judgment of the majority (Mason CJ, Dawson, Toohey & Gaudron JJ) at [21].
In a joint judgment in Harrison and Woollard, Fogarty and Kay JJ stated that “[t]he wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.”[27] Their Honour’s continued:
… the court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.[28]
[27] (1995) 18 Fam LR at p.797.
[28] (1995) 18 Fam LR at p.800. See also the detailed discussion by Baker J of the psychological literature (at pp.819-823), which includes his Honour noting (at p.820): “There appears to have been a tendency for adults to underestimate the wisdom of children and their ability to make sound choices about their future welfare. It must be recognised that children know their parents’ attributes and failings better than any outsider and in most cases they alone have direct experience of the environment which each offers.”
In R and R, the Full Court (Nicholson CJ, Finn & Guest JJ) considered further the import of Harrison and Woollard. In the course of the joint judgment, their Honours said (at [44]): “What is required is that they [i.e children’s wishes] be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held wishes are departed from by the trial judge, it is apparent that good reason should be shown for doing so.”
Later in their judgment, the Full Court said (at [54]): “Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.” And later (at [57]): “… it is not the law that those wishes are determinative of the outcome which may be overridden by other factors relevant to the determination of the child’s best interests.”
The Full Court decision in In the Marriage of R (Children’s Wishes) (Nicholson CJ, Holden and Monteith JJ) bears some resemblance to the current proceedings. In that case, at first instance, Guest J found that there was an escalation of distress on the part of at least one of the children as the legal proceedings wore on. The child’s angst was not helped by the Mother’s stress. Somewhat so here: all legal proceedings necessarily involve stress on those involved. Ms Lang has reported (which I accept) that the girls in particular want the legal proceedings to be resolved, and the sooner the better. There is also more than a hint of Ms Veitch’s stress both in relation to the proceedings and the understandable tension that is an almost inevitable consequence of the failed marriage to Mr Barak and the on-going problems regarding his relationship with S and P. I do not intend any criticism of her by this observation.
Returning to In the Marriage of R, the Court there said (at [123]):
His Honour took the view that the mother had played a significant part in the formation of C’s wishes. He rejected the proposition that she had appropriately encouraged C and J to attend on contact. He said that he had no doubt that she conveyed to them by either the spoken word or by her conduct or demeanour that she did not favour contact. He remarked that to take a passive position is equally infectious as to verbally express opposition. He said either way he was satisfied that she made her position clearly known to J and C.[29]
[29] At [129], the Court said: “The principle is clear that a court must take children’s wishes into account, but is not bound by them.”
I do not regard the position of Ms Veitch as approximating the situation described by Guest J – as quoted by the Full Court. While she has not, in the past, encouraged the girls in their relationship with Mr Barak as well as one would have liked, in the light of the consistent evidence presented to the Court, it is clear that the views of the girls about their Father are strongly held and, for the most part, they have formed of their own accord. Mr Barak confirmed in evidence (to which I have already referred) that they are highly intelligent young people, very strong willed, and who also had a strong sense of `right and wrong.’ While Ms Veitch’s attitude in the past has doubtless reinforced their antipathetic attitude towards their Father, in my view they formed it and strongly hold it of their own assessment of his actions and have done so consistently for some time. Having regard to their ages and maturity their views must be given very significant weight.[30]
[30] In this regard, see also the comments of Nicholson CJ in ZN v YH (2002) 29 Fam LR 20, albeit in a relocation case. His Honour referred at [140] specifically to the age and maturity of children as relevant to the weight to be attributed to their views.
Finally, in Dylan & Dylan, Carmody J echoed the views of Nicholson CJ in ZN regarding the importance of the age and maturity of the children whose views are the subject of importance. At [228], his Honour said:
The weight to be given to a child’s views in any given case is, however, dependent on a range of factors including the child’s age and maturity, any protective needs, the views of siblings where it appears best to keep them together, and the desirability of maintaining a long term relationship with the parent where the child has negative views about the relationship at that point in time.
Of particular relevance to the current proceedings is the following extremely important observation of Carmody J at [68] in Dylan & Dylan:
Professor Parkinson identifies a number of reasons why a child may in fact not benefit from an ongoing relationship with both parents even in the absence of violence or abuse.[31] The court may conclude that there is not any advantage to the child due to, for example, his or her having strongly resistant views or because the relationship has irretrievably broken down or the parent may be emotionally unavailable because of mental illness.[32]
[31] P. Parkinson, “Decision-making about the best interests of the child: the impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179 at p.185. In the course of Parkinson’s discussion of situations where a child is strongly resistant to contact with a parent, he referred to In the Marriage of PA and JA Litchfield (1987) 11 Fam LR 435, a case involving a Father who had been in an adulterous relationship, and his 9 year old daughter found out about it. The Mother and the daughter were involved in the Exclusive Brethren.
[32] See also the discussion by Moore J in C & C [2004] FamCA 708 at [87-90], a case involving a 12 year boy who was alienated from his Father, allegedly (on the Mother’s evidence) due to the Father’s own short-comings. The orders ultimately made in that case were that previous orders for contact between the child and his Father were discharged, the Father was permitted to forward appropriate cards, gifts and correspondence to the child regularly, the Mother was ordered to give the child any items sent by his Father, and that the Mother was to facilitate any contact time between the child and his Father in the event that the child requested it.
In W and G (No 2) (2005) FLC ¶93-248 (at p.80,067: [45]) Carmody J has also said:
Australian family law is unashamedly pro-contact. Consequently, this court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done.
Without discounting either of these statements, unfortunately, his Honour’s remarks in Dylan are more apt to the current proceedings than those which he made in W and G. Applying them to the facts of and evidence in this case, I have already stated on more than one occasion that the unreceptive attitude of the girls to Mr Barak is strongly held and has been consistently held since February 2006. That attitude has also consistently been that they will see him when they are ready. There appears to be some mellowing on S’s part in relation to the level of hostility, but not in relation to meeting with her Father. In these circumstances, as I have already indicated, I agree with the submission that there would be no benefit in forcing the girls, either separately or collectively, to see Mr Barak at this stage. Given the entrenched positions of the girls, nor do I see it as being beneficial to anyone to force them to have counselling, which includes as a prescribed goal or even an expectation, that they will see their Father. This is clearly a most unfortunate situation for all, but it is the reality of the state of affairs at the moment.
Determination and conclusion
I have remarked in other judgments (to which I need not refer specifically) that the object of legal proceedings is not to resolve inter-personal conflict (short- or long-term) between parents. Rather, to use the language of Part VII Division 1 of the Family Law Act1975, the principal issue and paramount consideration in this litigation is to determine and make orders that provide for the best care, welfare and development of S and P, the early-teenage daughters of Mr Barak and Ms Veitch. That said, it is nonetheless a hope that the finalisation of these proceedings and the making of orders that are considered by this Court to be in S’s and P’s best interests may bring some closure to, and facilitate some stability and order in, the discordant relationship between their parents.
The legislative and judicial pathways in making a parenting order of the kind required in these proceedings are well established. In Goode v Goode, the Full Court of the Family Court stated:
…in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in s 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case. [33]
The Full Court (Bryant CJ, Finn and Boland JJ), continued:
… when making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[34]
... it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. …the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.[35]
[33] (2007) 36 Fam LR 422 at p.428 [10].
[34] Ibid, at p.435 [43]. Emphasis in original text. See also p.438 [56] and p.440 [65]. See Part VII, Division 2 – Parental Responsibility, of the Act. S.61B defines “parental responsibility”; s.61C prescribes that each parent has parental responsibility; s.61DA provides for a presumption of equal shared parental responsibility when a court makes parenting orders.
[35] Ibid, at p.443 [72].
I have reviewed [again] the Full Court’s discussion in Goode v Goode of the application and operation of s.61DA and its relationship to ss.65DAC and 65DAE regarding equal shared parental responsibility, and consultation being required only in relation to major long-term issues.[36] Notwithstanding the strained circumstances on display in this case, acknowledging Ms Veitch’s acknowledgement of the importance of them having their Father in their lives, and S’s somewhat mellower attitude towards her Father,[37] I consider it to be in the girls’ best interests that both parents have equal shared parental responsibility in accordance with the presumption in s.61DA and its import for decision-making in relation to major long-term issues in relation to the girls. Of course, this does not translate into the girls spending time with him any time soon.
[36] See Goode v Goode (2007) 36 Fam LR 422 at pp.433-438 [29] – [56].
[37] S’s attitude towards her Father certainly shows a growing maturity. Hopefully, it may also ultimately assist in P coming to terms with at least some aspects of the past and finding some pathway out of the current relational labyrinth.
An order to this effect may provide a three-fold opportunity: (a) for both parents `to practise what they preach’ about ensuring that each parent is involved (to the degree possible in the current circumstances) in decision-making about the girls’ major long-term issues (as defined in s.4 of the Act) as opposed to day-to-day matters; (b) over time, for a process of reconciliation to be explored between the parties; and (c) appropriately to facilitate and encourage, over time and to the degree possible at this stage, Mr Barak’s involvement in the girls’ lives. These are all matters that are relevant to s.60CC(3)(c) and particularly s.60CC(4) and s.60CC(4A), regarding the extent to which each parent has fulfilled (or failed to do so) their responsibilities as a parent, notably in facilitating communication with the girls. That said, many of these things are some way off into the future when the girls are ready to see their Father.[38]
[38] In this regard, see Carmody J’s considered discussion about parental attitudes and “practices” of co-operation or obstruction in Dylan & Dylan at [79].
The same qualification also applies to other usually applicable sections, such as s.65DAA regarding the girls spending significant and substantial time with Mr Barak.[39] That too must be some time off.
[39] Again, see Carmody J’s helpful examination in Dylan, at [117], of the operation or applicability of s.65DAA in the light of the Full Court’s decision in Goode v Goode.
In all the circumstances of this case, in my view the most appropriate course is to make orders as sought by the independent children’s lawyer, with some qualifications and modifications. The thrust of those orders is that the girls are to see Ms H for assessment and counselling. Only in the light of that assessment and at the conclusion of the prescribed counselling should there be any consideration of whether, and if so when and how, there should be any joint counselling between them and their Father. Any further orders in this regard should be deferred until after the conclusion of the counselling between the girls and Ms H.
Mr Barak is permitted to forward appropriate cards, gifts and correspondence to the girls, but nothing in this regard is to occur within the first three months after the date of these orders. There is no formal compulsion on the girls to respond to them, although one would hope that, over time, some civility and courtesy of reply will ensue.
Ms Veitch is to give to the girls any items sent by Mr Barak. In due course, and subject to any recommendations by Ms H, she is to facilitate any time between the girls and their Father in the event that they request such time. At the end of 12 months from the date of these orders, the parties and their daughters are to see Ms Lang who is requested to provide the Court with a further Report. Nothing in these orders shall prevent the parties, in consultation with their daughters, reaching any alternative agreement in writing regarding the time and manner in which the girls spend with their Father.
Ms Veitch is to encourage, but not force, the girls to contact members of Mr Barak’s family. I also order that the independent children’s lawyer explain these reasons and orders to the girls. They should not, without the written consent of both parents, be provided with a copy of or be permitted to read them.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 31st March 2008
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