Birdwood and Heggarty

[2014] FCCA 1546

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRDWOOD & HEGGARTY [2014] FCCA 1546

Catchwords:
FAMILY LAW – Parenting – children’s relationship with their father has broken down – father lacks insight – parenting orders seeking to micromanage  both parents behaviour to an unrealistic degree – whether or not orders should be made to the father spend time with children at fixed times or in accordance with their wishes.

Legislation:

Family Law Act 1975, pt. VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B

Rice v Asplund (1978) 6 Fam LR 570
Nash & Reis [2013] FMCAfam 11
Scott & Kent [2013] FCCA 127

Pauli v Beffa [2013] FamCa 144

Jones v Dunkel (1959) 101 CLR 298

Applicant: MS BIRDWOOD

Respondent: MR HEGGARTY

File Number: DNC 626 of 2007

Judgment of: Judge Harland

Hearing dates: 22, 23 and 24 April and 26 May 2014

Date of Last Submission: 26 May 2014

Delivered at: Darwin

Delivered on: 17 July 2014

REPRESENTATION

Counsel for the Applicant: Ms Truman

Solicitors for the Applicant: DS Family Law

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Northern Territory Legal Aid Commission

Counsel for the Independent Children's Lawyer: Ms Terrill

Solicitors for the Independent Children's Lawyer: Terrill & Associates

ORDERS

1. That the mother have sole parental responsibility of the children X born (omitted) 2003 and Y born (omitted) 2005 subject to the following conditions:

   (a)The mother will text message or email the father of the decision required to be made and her proposal;

   (b)The mother will consider any written response sent by the father provided it is received within 7 days of the mother’s initial  text message; and

   (c)The mother will inform the father of the decision she has made in writing.

2. That the children live with the mother.

3. That the children spend time with the father as and when sought by the children or either of them provided it does not interfere with their schooling.

4. That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.

5. That the mother do all acts and things and give all irrevocable authorities necessary to ensure that the father can obtain directly from any health, welfare or other professional attended by the children, copies of any reports or notices of relevant verbal or written advice relating to the health and welfare of the children. For this purpose the mother will notify the father and keep him informed of the names and contact details of such health, welfare or other professional.

6. That the father is restrained by injunction from attending at the children’s schools unless at the specific request of both of the children if both children are attending the same school. The father is only at liberty to attend school functions and activities at the request of both of the children if the children are attending the same school. If the children are attending different schools, then the father shall only attend at that school or at any functions and activities at the specific request of the child attending that school.

7. That should the children be spending time with the father, changeovers are to occur at a place and time agreed to between the parents but if there is no agreement then at CatholicCare NT.

8. That should the mother wish to travel outside of Darwin with the children:

   (a)The mother shall provide 14 days’ notice to the father of such travel including dates of travel, location of travel and emergency contact number for the children whilst the children are away.

   (b)In the case of an emergency the mother shall provide 24 hours’ notice to the father of such emergency, together with dates of travel, location of travel and emergency contact number for the children whilst the children are away.

9. That each parent shall advise the other parent and keep the other parent advised of their current residential address and contact telephone number (landline and mobile numbers) and advise the other of any changes to these details within 48 hours of such change occurring.

10. That each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each parent do all things necessary to ensure that no third party makes critical or derogatory comments about the other parent in the presence or hearing of the children.

11. That both parties do all things and sign all documents necessary for the children to be issued with current passports.

12. That the father sign and return to the mother any passport applications within 14 days of receiving them. If he fails to do so the mother is permitted to apply for an Australian Passport without the consent of the father being obtained.

13. That the mother be permitted to take the children on holidays overseas.

14. That at all times the mother have possession of the children’s passports.

15. That the Independent Children’s Lawyer is hereby discharged.

NOTATION

1. The mother undertakes she shall continue to attend appointments with a psychologist for such further period as the psychologist deems necessary.

2. The mother undertakes to arrange for X to attend upon Ms D for such further period as Ms D recommends and X agrees to attend.

3. The mother undertakes to arrange for Y to attend such therapy as recommended by Ms D for such further period as Ms D recommends and Y agrees to attend.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 626 of 2007

MS BIRDWOOD

Applicant

And

MR HEGGARTY

Respondent

REASONS FOR JUDGMENT

Introduction

1. X is eleven years old.  His brother Y is nine years old.  Their relationship with the father has broken down.

2. The parties separated in 2006.  Parenting proceedings first commenced on 14 December 2006 when the mother filed an application for parenting orders.

3. The mother seeks orders for the parents to have equal shared parental responsibility but that she has the final say if they cannot reach agreement.  She also seeks orders that the father spend time with the children in accordance with their wishes provided it does not interfere with their schooling and that handovers take place at CatholicCare NT (CatholicCare) unless otherwise agreed.

4. The Independent Children’s Lawyer (ICL) also seeks orders for the parents to have equal shared parental responsibility subject to the mother having the final say if the parents cannot agree and that the children spend time with their father in accordance with their wishes.

5. The father seeks equal shared parental responsibility.  He also seeks to spend time with the children five nights a fortnight.

Litigation History

1. The parties have been in litigation about their children on and off for years.  The mother works as a (occupation omitted) at a (employer omitted).  The father is unemployed and has been for a long time.

2. The mother commenced parenting proceedings in December 2006.  Terry FM (as she then was) made final parenting orders on 21 June 2007.  The mother filed a Contravention Application on 8 November 2007.  The parenting orders were varied by consent on 18 December 2007. The father filed a Contravention Application on 28 December 2007.  His Contravention Application was withdrawn and dismissed on 4 March 2008.

3. The mother filed another Initiating Application for parenting orders on 15 August 2008.  The father filed a Contravention Application on 19 August 2008.  Terry FM ordered both parents to attend a parenting orders programme.

4. A family report was ordered and the matter was listed for final hearing in March 2009.

5. Final Consent Orders were made on 18 March 2009.

6. The father filed an Initiating Application on 27 October 2010.  Turner FM (as she then was) dismissed his application after argument, applying the rule in Rice v Asplund (1978) 6 Fam LR 570.

7. The father filed a Contravention Application on 10 April 2012.

8. The mother filed an Initiating Application on 18 April 2012.

9. On 1 June 2012 Turner FM made interim orders suspending the parents orders and ordered the father to have supervised time with the children at CatholicCare.  She also ordered the parties to attend family therapy with Ms D.

10. The first family report prepared by Mr V was released on 21 September 2012. The court made orders on October 2012 requiring the parties to re-enrol at CatholicCare so that the children could spend supervised time with their father.

11. On 21 January 2013 the Court made consent orders providing for the father to have unsupervised time on alternate weekends with the handovers to occur at CatholicCare. The court made further interim consent orders on 13 May 2013.

12. On 30 July 2013 the court dismissed the Contravention Application filed by the father on 10 April 2012.

13. On 13 August 2013 the Court made further interim parenting consent orders and ordered an updated family report.

14. In December 2013 the matter was set down for hearing on 12 and 13 March 2014.

15. On the 25 February 2014 those dates were vacated on the mother’s application because of the death of her nephew and the new hearing dates were set for 22 to 24 of April 2014.

Letter from the Independent Children’s Lawyer

1. The ICL sent a letter to the parties on 9 April 2014.  It is exhibit A.  In that letter she raises several issues of concern relating to the boys.

2. The mother and children have recently experienced an extremely traumatic family event.  The mother’s eight year old nephew drowned in a stormwater drain in January 2014.  The accident received some publicity in the press which made it more difficult for the family.

3. The mother states candidly that she found it very difficult to cope.  It is still hard for her but she is coping better.

4. Part of the boys’ complaints relate to the mother’s care of them after this tragedy.  The boys felt that their mother was not paying attention to them and complained that she was feeding them frozen food.

5. The mother admits that the tragedy and other deaths in the family have left her extremely stressed and admits this impacted on her parenting.  This is only to be expected in the circumstances.  She said she is doing everything in her power to get better.

6. The mother says she fed the boys frozen meals because she felt she was not safe to cook because her hands kept shaking.  She also wanted to reduce the stress on her.  These proceedings would also have added to her stress.  Court proceedings are stressful for any litigant.  The mother’s explanation is perfectly appropriate.

7. The most concerning aspect of the ICL’s letter are the references to the boys being “emotionally drained about the situation” and feeling that they have “no control over this situation”. She says the boys spoke in a flat and sad monotone and “they were expecting that they would not be listened to.”

8. By the time of the ICL’s letter X was living at his maternal grandmother’s house and the ICL noticed that the boys’ relationship with each other also appeared to have broken down with neither boy wanting X to return home. She makes it clear in her letter that both parents need to take some responsibility in the way the boys are feeling. It is very concerning that the boys relationship with each other has been affected as so often happens when children are surrounded by conflict, as these boys have for years.  A sibling relationship as well as their school can provide the children with safe havens.

9. The ICL also makes it very plain in that letter that both boys’ views are very strong. They know it will hurt their father’s feelings but they do not want to spend time with him. These children probably do not remember a time when their parents were not fighting about them. If there have been court proceedings on foot in one form or another for most of their lives with short breaks in between. These proceedings need to end for the children’s sake. The damage that long-term parental conflict can cause to children’s emotional and psychological wellbeing should not be underestimated.

10. After reading the ICL’s letter the father sent a text message to the mother which stated “I heard 2day was so much despair that are childs r whingeing about having to eat microwave food at urs.” The whole of the text message is exhibit E. It is significant that he makes no mention of the issues of concern raised directly to both parents. The orders that the father seeks is simply to go back to the orders of 2009 (except to have one single block instead of two).  He does not address the issues the ICL raises of the parents needing to attend further parenting courses or the children receiving further counselling. The only change he seeks is that the five nights a fortnight be in one block instead of two.

11. When cross-examined the father acknowledged that many people, including the children themselves, are saying that the children do not want to see him but that he is still seeking orders requiring them to do so. One of his answers was “this is a request for orders to be made. What we can progress to from there would be looked at and obviously appreciated.” When he was asked to expand on that he said “we can progress to getting my children’s lives back on board and getting them into a settled routine again whether it with myself or with Ms Birdwood.” It was clear during the course of his cross-examination the father is unable to put himself in his children’s shoes.

12. The father’s focus was still on wanting orders even though that has led to a continuation of proceedings in his book, Contravention Applications in part. He says if orders are made and the children do not want to come home they will not come as is what has been happening under the current orders. He says it would be silly for him to file a Contravention Application. The difficulty with his evidence is that in the letter from the father’s lawyers to the mother’s lawyers on 5 December 2013 (exhibit F) the father threatened to bring a Contravention Application after the children refused to spend time with him on 22 November 2013.

13. It seems clear from the father’s answers as well that he does not truly accept that the children don’t want to see him. He often referred to it being “according to all these documents”. He had difficulty explaining coherently the reasoning behind seeking the orders he seeks in the circumstances and at one point said “I would like to think that the [sic] Honour is going to try and help us in the best way she can to get us all together again.”  The father talks about reuniting family. The father has extremely rose coloured glasses on to refer to such a reunification. These parties have been separated and unable to communicate with each other constructively about the children (with some limited exceptions) since 2006. It is now 2014.

14. Exhibit G is a text message exchange between the parents. The mother sent a text to the father saying that the children were refusing to go see him on the weekend and suggested that he could talk to them after school and he could come to her car to do that. The father’s response was to tell the mother that she has to tell the children that they have to come and that they have two choices in being “dada or dada”. The father said he thought this was supposed to be a little bit humorous. Again this demonstrates the father’s lack of insight.

X

1. X has shown some troubling behaviour for some time. Late last year there was an incident at after school care when he tried to self-harm. The mother says she spoke with the manager of the after-school care service and the principal and that they felt it was an attempt by X to get attention to get people to listen to him rather than to seriously hurt himself.

2. The brothers fell out with each other earlier this year in January or February 2014 and at times they have been physical with each other.  Part of this is likely to be because of their cousin’s death.

3. A few weeks before the hearing X left the mother’s home in anger.  The mother called the police and asked them to do a welfare check.  He went to his grandmother’s house.  He has been staying at his grandmother’s house.  The mother says X’s behaviour has been very challenging and there has been increased tension between the boys as well.  The mother does not view this as a long-term arrangement.

4. The mother has contacted Ms D who has previously been seeing X.  She says she is in daily contact with X and they are working on re-establishing their relationship.

5. Mr V said during cross-examination that X’s behaviour could be due to a combination of things including his cousin’s death.

The father’s relationship with the children

1. In 2012 and 2013 the parties engaged with CatholicCare.  Initially the father spent supervised time with the children at CatholicCare. Later the family used CatholicCare’s supervised handover service. Exhibit C is a bundle of CatholicCare observation notes. There was a handover on 6 December 2013. The worker records in her notes that she encouraged X to see his father but he refused despite several attempts. She records that when she brought Y over the father became upset that X was not there and told the worker to “go and make some other arrangements I can collect him tomorrow morning with you as this is unacceptable.” The worker says she spoke to the mother by phone and reported back that X did not want to go with him this weekend. She records that the father became upset. When this incident was put to the father in cross-examination that the mother encouraged Y to go and see him but he qualified this by saying “on this occasion.” Exhibit L is a further bundle of CatholicCare supervision notes tendered by the father of supervised visits in late 2012 which show positive interactions between the father and the children. The three of them engage well together and shared activities and games and enjoyed themselves.

2. Another worker recalls that at the handover on 8 December 2013 the father said to Y “get that brother of yours to get his act together and be here next time”.  The father agreed he said that. He said he believed it was appropriate to ask his eight year old to communicate that to his ten year old son “in a loving and caring manner” and he says this is in some part of his communication style and it was a positive loving message. It is concerning that the father cannot see how this could be perceived quite differently by Y and X and what a difficult position it puts Y in. The father put Y directly in the middle of conflict and potentially put him in conflict with his brother.

3. One of the allegations that the children have made against the father is that in 2012 he hit them on the back of the head. The children have repeated that allegation to a number of people including the Department of Children and Families and the family report writer. The father said it was a playful tap on the back of head. The children have said that it was not light-hearted play but caused them pain. This is recorded in the first family report. This is another example of the father being unable to accept someone else’s point of view.  The father says that Ms D told him that the children told her that it is a playful tap. Initially he said he could produce a document to show that, then he retracted this. I do not accept the father’s evidence on this point. The ICL asked the father if he could accept that it is the children’s perception that it was hard and not soft. He could not.

4. The father consented to orders requiring him to have supervised time at CatholicCare.  He agreed that when seeing the children at CatholicCare he said to X on 4 August 2012 “why should I have to see you here?” He said he thought that was an appropriate conversation to have with the child who was nine at that time. The worker told him not to have that kind of conversation with X. He places the responsibility for the situation on X by saying after being told not to discuss it by the worker “you’ve got to tell them you don’t want to see me here”. After the worker again told the father that he could not discuss it he started whispering to X.

1. The father says he did not understand the rules and regulations at that time.  Again he is missing the point. The father says he ceased to do it. It is clear that he only ceased because he was told to and not because he understood why it was inappropriate.  It is inappropriate because it involved X in adult issues. The father cancelled the next visit because of work commitments.

2. The consequence of the father’s behaviour was that the children did not want to see their father on the next visit.  X told the worker that the father’s questioning of him on the last visit made him uncomfortable. It is not surprising that X had this reaction. What is concerning is that the father did not really take responsibility for his actions. He does not show any insight into the effect of his conduct on other people.  There is no reason to think that this will change.

3. It is clear that at times the children have found the father’s behaviour in public embarrassing. One such incident was when the father argued with a worker at the pool area at the (omitted) for collecting mussels when it was not allowed. The father could not accept that this was embarrassing the children as he said he has always encouraged the children to stand firm in their beliefs and what they are doing is right. On another occasion he had an argument with the workers at Coles supermarket because a worker complained that he and the children were touching seafood and as a result it would have to be thrown away. The father says he pointed to other things they touched. Again he could not see that the children would have been embarrassed.

The father’s attitude

1. The father complained about the mother not negotiating with him to see the children on Christmas Day. Significantly what he ignored was that the parties had negotiated consent orders providing for the father to spend time with the children during school holidays commencing on 3 January 2014. The father was legally represented when those orders were negotiated.

2. The boys spent a few days with the father in January 2014 but came home early. They were reluctant to spend further time with him because they were concerned that their father would not allow them to return home early again even though he had done so because apparently the father had expressed some anger about this. It was suggested to the father during cross-examination that he did not refer to the fact that the mother actively encouraged the boys to spend time with him on 13 January 2014 which she was aware of because he was on speakerphone at the time because it does not support his case that the mother has been alienating the children. 

3. The father raised alienation as an issue but did not actively pursue it during the course of the hearing.  There is no evidence to support an alienation argument.

4. The father was shown the second affidavit that he filed in the proceedings being sworn on 23 May 2012. Contrary to raising any concerns about the mother alienating the children he proposes:

   “it is with great sadness to myself, but with full consideration, children’s mental stability and well-being that I propose the children to live with their mother.… That the mother make the children available to see their father if at all when the children request to see their father.”

   The first time the father mentions the word alienation in the affidavit is in the affidavit he swore on 8 May 2013. The father said during cross-examination that what he means referring to alienation is that he is concerned the mother is not encouraging the children to see him. The evidence does not support this. The CatholicCare notes show the mother encouraging the boys to spend time with him and the family consultant also refers to the mother encouraging the children to spend time with him in the family report. The father confirmed that despite these examples he is still concerned that the mother is alienating the children from him. He was unable to say who he would need to hear from in order to accept that the mother does encourage the children to spend time with him.

5. In the family report the report writer noted that the children appreciate the handovers occurring at CatholicCare because they feel confident in being able to express the views about not wanting to see the father.  Somewhat incredibly the father says the same thing could happen at a library, Hungry Jacks or McDonald’s.  He referred to communication between him and the mother might make that happen. He says if the children did not want to go he would discuss it with the mother and

   “see what she can offer me, as far as underlying concerns are about much will not want to come, and then we open communication about it, and, together we might be sorted out between the two of us and make kids give a bit comfortable.”

   This is completely unrealistic and ignores the children’s needs.  At CatholicCare they could express it to an adult independent of their parents who could listen to them and who can tell the father without them having to do it directly which would in turn lead the father to pressuring the children as he has done so many times in the past.  Mr V commented on the father’s proposal during cross-examination and said that the emotional and behavioural regression of the children would likely continue and that they would get further away from wanting to spend time with the father. Likewise the father’s proposal that the mother bring the children to his home so that the children could “look him in the eye” and tell him that they did not want to see him also caused Mr V concern as it could be extremely damaging to them emotionally and has the potential to make them feel very guilty.

6. Another example of the father’s attitude is with respect to child support. He is not required to pay child support and he refused to act with the mother’s requests to remove the child support assessment.  He told the mother this is because he likes to see what her income is. He describes that as being an enjoyable moment of communication between them but it would be hard to believe that the mother would have seen it that way.  It is likely that the mother finds this harassing.  It is understandable why she would not want him to know about her income given that she is not receiving any financial contribution from him for the children’s care. It is another example of the father’s insensitivity and inability to see things from anyone else’s point of view.

7. During cross-examination of the ICL she put to the father that his proposed orders would have the mother having to deal with the children and try and encourage them to see their father every fortnight, and every fortnight the children would have to express again not to spend time with their father. The father was asked if he saw this as being in their best interests and his reply was that he thought it was in the best interests of any children to “lead a good strong life with their mother and father.” He accepted that the children are currently distressed. I then asked the father if he considered whether there would be a benefit to the children of not having the pressure of orders requiring them to see him every fortnight and that without the pressure of orders being placed there might be an improvement in this situation. He accepted the proposition that having orders in place will put pressure on the children but he still maintains that he wanted orders in place because he wanted to be included in the children’s lives.  The father simply cannot separate his own needs and desires from what is in his children’s interests.  I have a real concern that the father’s proposal would also put too much pressure on the relationship the children have with their mother as they may come to resent her as she would have to ask the children if they wanted to see their father every fortnight.

8. Concerns about the father’s behaviour towards the children have been raised not just by the mother but by the school and by the Department of Children and Families as far back as 2012. The mother brought an application to court in 2012 to suspend the 2009 orders because of the concerns. The mother refused to allow the father to spend time with the children on Saturday, 7 April 2012. The father filed a Contravention Application on Monday, 10 April 2012. The mother’s application was returnable in court on 8 May 2012. He turned up at the mother’s home again on 13 April 2012. The gate was locked and he was calling out to see the children. Significantly in the lead up to April the father had failed to spend time with the children on 19 and 20 March 2012 to 25 March 2012 and 5 and 6 April 2012.  As the father failed to turn up to see the children on these occasions it is not surprising that the children then refused to see him on 7 April 2012. When asked if he could see the possibilities that his behaviour may have an impact on the children he said no.

Events in early 2014

1. The father describes an event in January 2014 when the mother invited him in to her home. He said it was a positive thing as the boys could see their parents talking. The mother was asked about this in cross-examination and she agreed that she thought it was a good thing and she thought that it was good for X to be able to show his father his bedroom. She said at that stage things had settled down considerably and she said that the father was talking to her like a human being. The father agreed that he was happy about not having to do handovers at CatholicCare. The mother says she agreed that she did tell the father that she was distressed and sometimes cried in front of the children but it is important to note that this was just a few days after her nephew drowned. She also agreed that she may have told him that she was having trouble with her mother.  The mother said that sometimes her mother treats her like a child and not like an adult with qualifications and a parent herself.  She agreed she mentioned difficulties at work. She says she was trying to let the father know that things are really difficult for her at that time.

2. The mother says that the father can be irrational and that at times in public he can be very exuberant and the boys get embarrassed by him.

3. On 26 February 2014 the mother rang the father and told him that X was out of control and swearing at her and asked him to come over. She says it was a bit of an experiment to see if the father would be able to assist. At that stage she thought it would be a good thing for X to go to his father’s home. X wanted to go to his grandmother’s home.

4. On 7 March 2014 the father came over to collect the children and both children refused to go with the father. She says that she heard the father say to Y “if you don’t come with dadda now I will never come to you again.” Y replied “that’s your loss dad not mine.”  The father replied “no actually Y that’ll be your loss.” She disagrees with the father’s version as described in his affidavit. The father says that he said to Y “if you keep saying no when daddy comes to pick you up that is going to end up that daddy won’t be able to pick you up again.”  On either version the father shows his lack of insight.

5. The mother has occasionally shown the same lack of insight as this is demonstrated by her own affidavit in particular paragraph 212.e when in March 2014 she said to X “hitting me like your dad used to.” When asked about this in cross-examination she said she could not see that as being derogatory of the father because it was contextualised. The difficulty here is that her comment made it clear to X that there was a part of his father’s behaviour that she does not like that she is now seeing in him. X is well aware that he is made up of parts of both his parents and that his mother doesn’t like his father.

Injunction restraining the father from attending the children’s schools

1. The mother seeks an order that the father be restrained from attending the children’s schools except by the boys’ written invitation.

2. The father used to attend the boys school and their classrooms. There was an incident on Monday 20 February 2012. The father attended one of the boy’s lessons and disrupted the class. When asked about this in cross-examination the father said he couldn’t pinpoint the date as he does that on many occasions but does not believe that he was disrupting the class. It seems to be most unusual behaviour for the parent to sit in on the children’s classes so often. It is easy to see how merely having a parent present could be disruptive. It is quite different to parents attending classes by invitation for example to read to the children. Often primary schools have volunteer parents doing that.

3. There was another incident at school between the father and the maternal grandmother. The father says the grandmother was assaulting the children verbally and mentally. The teacher who saw the incident recorded the father being aggressive. Exhibit B is a bundle of documents extracted from the Department of Education subpoena. It is clear from the records that both boys’ teachers have reported the father making them feel uncomfortable. The father denies receiving the letter from Mr J a copy of which was in the subpoenaed material addressing his inappropriate behaviour. I do not accept the father’s evidence the school revoked any consent for the father to enter the school premises without specific prior approval because of his behaviour. The teacher complains that the father frequently came into the classroom between 40 and 50 minutes before the end of the school day and she reports that she told him that he would need to sign in and obtain a visitors badge if he wanted to spend significant time in the classroom. I accept that the documents in exhibit B are an accurate reflection of the father’s interaction with school staff. Being faced with these documents the father still referred to his participation in class as being positive and that the children enjoyed him being there. He pursued an order allowing him to attend the children’s school. He acknowledged that the children do not want him at the school currently but he appears to have an unrealistic view of the situation with the children. For example he referred to “further development on the situation” and explained that “the children will get calm and peace and settle down and accept me back in their life again and not constantly say that I want to see their father.” 

4. The Court does not make injunctions lightly as they restrict the person’s freedom of movement. Section 68B of the Family Law Act 1975 deals with injunctions in relation to children. Section 68B(1)(c) empowers the court to grant an injunction restraining a person from entering all places in the case of education or a child’s school. The injunction may be made on an interlocutory or permanent basis in any case where it appears to the Court to be just or convenient: section 68B(2). In this instance the injunction being sought is long term. It could potentially be in place until Y graduates from high school. I am satisfied that it is just and convenient to make the order and that it is in the children’s best interests so that they can have peace of mind that their father will not interfere with their education. It is necessary to make the injunction because the father has not shown any insight into the impact of his behaviour on others. He sees no problems with his behaviour at the boys’ schools. I am not confident that without an order being in place that the father would stay away from the boys’ schools. The injunction would be so expressed so as not to prevent the boys, or one of them, inviting the father in writing to attend school functions.

The family report writer

1. Mr V prepared a child inclusive dispute memorandum and two family reports.

2. The child inclusive conference took place on 29 May 2012. Neither child wanted to engage with the father. X made various complaints about the father’s home and the father hitting him hard on the head. He was anxious about resuming time with his father as he was worried about his father being angry at him for not spending time with him.  Y made similar complaints. Mr V observed that both boys were strongly aligned with their mother. This is not the same thing as alienation.

3. The first report was dated 21 September 2012. Mr V refers to the subpoenaed material from the school.  He referred to there being a theme of the school being unhappy with the father’s unruly and disruptive behaviour. He also referred to an incident where the father dropped the children at school so early there was no supervision there. The father said he had seen cars in the carpark so there should be no issues.  He said the children asked him to drop them off early. Mr V identified the issue of concern being the parent’s capacity to care for and make an appropriate decision for the children. I suspect from the father’s overall manner that he is reckless and the children probably do not feel safe with him.

4. Mr V described the father as being dismissive of the mother. His manner was laconic. In dealing with the claims against him he blamed others such as the mother, maternal grandmother and the acting principal. He was also dismissive of the boys’ claims against him. My observations of the father in the witness box are consistent with Mr V’s observations.

5. Mr V described the mother as thoughtful and reflective and being at a loss at how to proceed.

6. Y expressed fear of his father being angry with him. He said the therapy was helpful. Y revealed a sense of being trapped. He did not want to see his father because of his anger but by not seeing him his father may become more angry. X also expressed concern about the father’s anger and said he found the therapy helpful.

7. Mr V commented that both parents need to take responsibility for the events and the pressure on the children but the mother impressed as being more insightful and trying to address the issues constructively whereas the father’s “laconic manner appears to conceal a person who does not suffer opposition easily.” The children have picked up on the mother’s anxiety which has been borne through years of the ongoing dispute although he did not think this had been done in a calculating manner by the mother. The mother’s anxiety is likely to have heightened the boys’ anxiety.

8. The last report was prepared on 29 November 2013. The father complained about the alternate weekend time meaning that he was just a babysitter. He was very negative about the supervised handovers.

9. The boys both proposed maintaining the current arrangement. X expressed some concern about spending a three week block with his father in January 2014. Both boys expressed appreciation of the supervised changeovers. The father presented as emotionally wearied and the mother as struggling emotionally to find balance for the boys. The therapy had concluded.  Mr V expressed concern about the father taking the position of walking away from the children if he did not get what he wanted. He noted that the mother had mellowed in her approach. There were still elements of the mother being overprotective but she was working hard on that. The father had made little progress. He seemed to have an ingrained bitter attitude towards the mother and continued to denigrate her.

10. Mr V noted the father’s opposition to Ms D continuing as the children’s therapist but explained that as the children have engaged quite well with her it would be:

    “fool hardy to change therapist unnecessarily when the therapist had such a thorough working knowledge of the family’s history, the children’s concerns, and, again, given her legs of experience and her standing in working with family law clients.”  

    It is of some concern that the father would not agree to an order that that therapy continue with Ms D.

11. When cross-examined by the father’s counsel Mr V explained that there is a great difference between the father choosing to abandon the boys and the boys being aware of that and the boys are feeling that they have control over how and when they interact with their father when they know that their father wants to interact with them.

1. It is not surprising that the mother’s overprotectiveness may have come back to the fore in light of the tragic death in the family and the trauma associated. It could also explain X’ angry behaviour. Mr V said that it is not unusual for a child to express anger towards the parent they feel most comfortable with when there is an inexplicable death in the family.

2. Mr V expressed the importance of the children receiving ongoing therapy to help them deal with the position they find themselves in the conflict and also to repair the relationship with each other and to assist them in making decisions that they are voicing about their father. He commented about the parents needing to be absolutely, positively committed to being positive and encouraging. The father is not in a position to do that.

3. Mr V suspects that X is taking the family trauma out on his mother and his brother.  This is not surprising in the circumstances. Given his attempt at self-harm at the school late last year it is also likely that the conflict is having a negative impact on him which occurred prior to the family tragedy.

4. The ICL raised the issue of the boys being ordered by the Court to attend counselling and the difficulties they may have in accepting that. Mr V said that the parents would need to be ready to enforce it positively. If the father was going to be negative about it, that could be damaging to them. Mr V was unduly optimistic about the parties’ capacity to deal with this positively. He talked about giving the parents one last chance. I do not think that is in the boys’ interests. These proceedings have been going on too long.  In my view it would be counter-productive to make orders about further family therapy and may lead to an expectation on the father’s part that this would lead to the father pressuring the boys to spend time with him.

5. The mother has already shown a willingness to re-engage Ms D and I am satisfied that she will arrange for therapy for the boys, in particular X, if they want to engage in it.

6. There is also the issue of the cost of ongoing therapy. The mother seeks an order that the costs of therapy be shared. The difficulty is that there is no evidence before me as to what those costs are likely to be.  They are probably able to get a rebate from Medicare but the father is only in receipt of a disability pension so there is an issue about his capacity to pay. It is certainly a significant financial burden for the mother compounded by the fact that she does not receive any child support.

7. Given that Ms D has established a rapport with the boys, in my view it would be best that they continued to see Ms D if they want to. They can be encouraged to go but I do not think they should be forced to stop and this is something that is going to have to be in the mother’s control. It is unlikely that the father will participate in the future therapy and it may be that the therapist would not see that as appropriate.

8. I cannot be satisfied that the father has the financial capacity to contribute to the costs of the children’s therapy with Ms D.

9. Mr V recommended that the parents do a Triple P parenting course to adapt their parenting styles and manage the children’s behaviour constructively. The father said he had done such a course and as it turned out he had attended a post parenting separation course at Anglicare in late 2008, early 2009. Mr V said the value of the Triple P programme is being able to implement what you have learnt so there would be little value to the father in ordering him to attend if he has not seen the children regularly.

Parenting orders which seek to micromanage

1. In her case outline the mother seeks detailed parenting orders.  Some of those orders seek to regulate the parents’ behaviour with respect to “maintaining a respectful distance from each other” at social events, acknowledging the children’s Aboriginality and restraining the parents from denigrating Aboriginal people and culture.  They also require the parents to “purchase, maintain and keep clothes, toys and other personal entertainment items…”

2. Some of these orders are consented to by all parties.  Examples of these orders include:

   (a)For the purpose of such changeovers both parents shall maintain a respectful distance from each other and to refrain from communicating in a manner that is intimidating or hostile and any such communication is strictly limited to handing over the children.

   (b)That each parent purchase, maintain and keep clothes, toys and other personal entertainment items for the children at their respective home and ensure that any items that the children bring with them to time with that parent is returned at the end of the time.

   (c)That the father and the mother must maintain a respectful distance from each other at such events and refrain from engaging in any social interaction unless each consent to doing so.

3. Some of these orders are mirrored in the ICL’s proposed orders.

4. They also require both parents to “promptly” seek medical treatment for these children.  These types of orders are likely to cause problems in the future.  They seek the Court to micromanage the parents’ parenting of their children to an undesirable degree.  Others have commented on this problem, for example in Nash & Reis [2013] FMCAfam 11 and Scott & Kent [2013] FCCA 127. They would be difficult to enforce. When making orders the Court must be mindful about the enforceability of such orders. It would be undesirable for there to be Contravention Applications about these types of orders and it would be very difficult to establish and would lead to further conflict between the parents. I decline to make this order.

Legal principles

1. In cases about children under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: section 60CA.  What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

2. There are objects set out in section 60B that help to clarify what Part VII aims to achieve when it talks about best interests: section 60B(1).  There are also principles that underlie these statutory objects: section 60B(2).

3. The concept of best interests is explained in section 60CC.  The primary considerations are set out in section 60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

4. There are additional considerations set out in section 60CC(3).  These include: the views of the child, the nature of the child’s relationship with the parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of  change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

5. At the core of Part VII of the Act is a presumption of equal shared parental responsibility.  Thus section 61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility.  This presumption may be negated in certain  circumstances (section 61DA(2)), or rebutted (section 61DA(4)).

6. If the presumption applies, the court is required to consider certain time arrangements as between parents and children: section 65DAA.  Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: section 65DAA (1) and (2).  Equal time means what it says, and substantial and significant time is explained in section 65DAA(3):

7. Another important concept used in section 65DAA is that of reasonable practicality.  That is explained in section 65DAA(5).

Application of the law to the circumstances of the case

1. I must now consider the application of the legal principles in the circumstances of this case to determine what parenting orders are most likely to promote X and Y’s best interests.

Primary considerations

1. Turning firstly to the application of the primary considerations namely:

   a)the benefit to the child of having a meaningful relationship with both parents; and

   b)the need to protect the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

2. There have been several sets of orders that have attempted to ensure that the father be able to continue to have a meaningful relationship with children. Although some progress was being made that progress has been lost. There has to be a benefit to the children having a meaningful relationship with a parent rather than it being about the benefit to the parents.

3. Ordering the children to spend time with their father in the face of their opposition is likely to drive a further wedge between the children and their father and may also impact negatively on the boys’ relationship with their mother.

4. The best prospect of the boys continuing to have a meaningful relationship with their father is to take the pressure off the boys and giving them control. If they are given space and know that they can decide when and if to see their father they may well approach him.

5. I am satisfied that the mother will facilitate time between the boys and their father if they, or one of them, expresses a wish to do so. I am also satisfied that she will engage with Ms D and support the boys in seeing her if they want to do so.

6. The children have suffered emotional and psychological harm because of the ongoing conflict between the parents. Both parents must take responsibility for this. The orders I am making will reduce the chances of the children continuing to be exposed to this conflict.

Additional considerations

1. In this matter I consider the additional considerations that are relevant to be as follows:

Children’s views

1. The boys are now eleven and nine. They probably do not remember a time when the parents have not been in conflict.  The boys have expressed their views very clearly on a number of occasions now. There is an issue about their maturity and understanding of long term implications of the decision but the children of an age (particularly the case of X) where I have to give their views real weight. I find that the children’s views are based on the actual experiences of their parents and are not based on any undue influence by the mother. As the ICL submitted, the children have been expressing their views consistently over a long period of time.

Nature of children’s relationship with the parents and significant others

1. I have discussed the children’s relationship with the father in depth.

2. I have no doubt that the father loves his children and that they love him. I will not repeat the comments I have made earlier.

3. The mother has been the boys’ primary carer throughout their lives. Her relationship with X is fragile at the moment. X is a particularly troubled boy. It is fortunate that he enjoys a close and loving relationship with his maternal grandmother and that he felt able to go to her.

4. It was somewhat surprising that the maternal grandmother was not a witness in the mother’s case given her involvement with and support of the mother and the boys.

5. The father invites me to draw an adverse inference from this. I am not prepared to do so. I accept the mother’s evidence that her mother provides her with significant, practical and emotional support. Their relationship is not perfect and the mother sometimes feels that the maternal grandmother treats her like a child rather that as an independent adult and parent.

6. X’s move to his grandmother’s house only occurred a few weeks before the hearing. The entire maternal family has been under a great deal of strain in recent months due to the tragic death of the mother’s nephew.

7. It is clear that there have also been concerns about the mother’s parenting, particularly in the past few months. It is clear that the mother is under great strain at the moment and that was evident when she was being cross-examined and also in his demeanour in the courtroom. She is vulnerable. The mother has sought assistance when she is needed and clearly receives emotional and practical support from her mother.  One might expect that her mother was a witness in the case given what has gone on in the family in the last few months but I am not prepared to draw any Jones v Dunkel (1959) 101 CLR 298 inference. I am satisfied that the mother has encouraged the boys relationship with the father and has sought assistance for the boys appropriately.

8. The mother’s parenting has also been criticised. The mother is fragile. The difference between the mother and the father is that she has shown some insight into her weakness and has sought professional help and continues to engage with her psychologist. The mother says she will continue to do so. I accept her evidence.  The mother is much better able to provide for the boys’ physical, emotional and psychological needs.

Willingness and ability of the parents to encourage and facilitate a close and loving relationship between the child and the other parent

1. There were some issues of concern raised about the father’s household, in particular the boys having to go to the roof to turn on the water for their showers. It is also clear that sometimes the boys find their father’s behaviour in public embarrassing. The father has not shown any capacity to take on board views that differ from his own and has not shown a capacity to be able to place himself in his children’s position and accepted that their perceptions are valid even if he disagrees with them.

2. I am satisfied that the mother is willing and able to encourage the boys’ relationship with their father.  I gave examples of the mother doing this earlier in this judgment.

Likely effect of change in circumstances

1. I am going to involve a change of circumstances for the children.

The capacity of each parent to provide for the children’s needs

1. I have commented on this elsewhere and will not repeat them here.

Aboriginal and Torres Strait Islander culture

1. The mother and children are Aboriginal. This factor was not focused on in either the written or oral evidence.

Attitude of the parents to the children to the responsibility of parenthood

1. I have addressed this elsewhere in detail.

Family Violence

1. This is not a relevant consideration.

Whether it would be preferable to make an order least likely to lead to further proceedings

1. I am satisfied that the orders I am making are the least likely to lead to further proceedings.

2. If I made the orders the father seeks it is likely that there would be further proceedings including contravention proceedings which would not be in the children’s best interests.

3. X’s recent behaviour is worrying.  As the ICL submitted, there is a real potential that X may become estranged from both parents. Continuing litigation or making final orders that seek to compel the children to spend time with their father in these circumstances is not in X’s or Y’s best interests.

4. It is clear that the maternal family has been under a great deal of strain in the past few months due to the tragic death in the family. I have no doubt that this has compounded issues for the children but the children were already under pressure because of these proceedings. The mother has also been under pressure and it is important to protect her role as parent particularly in circumstances where she is the only candidate to have these children primarily in her care.

5. At times the father has been inconsistent about seeing the boys which has led to the boys in turn then refusing to see him. The father does not seem able to see the connection. I agree with the ICL’s submissions that the father is not child focused and that his concerns really focus on his needs. That is not to say that he does not dearly love his children and want to be involved in their lives.

6. The father’s proposal in his case outline and also during his cross-examination is completely unrealistic and do not take into account the burden that they would impose on the children as well as the mother in terms of psychological and emotional welfare.

7. The Father’s counsel submitted that the father made concessions and that the orders he seeks are out of love for his children and not of self-interest. The difficulty with his submission is that the father made concessions such as that he did tell X that he did not want them at CatholicCare because the father could not see anything inappropriate about what he said to X and that is what is of concern.

8. The fact that in the final submissions the father’s lawyer was continuing to seek orders for set times for the children to see the father shows that the father has not taken on board the evidence he has heard.

Parental responsibility

1. Although the orders sought by the mother and the ICL for parental responsibility are expressed as being for equal shared responsibility the nature of the order is giving the mother sole parental responsibility with an obligation to take into account the father’s views before making the decision. Watts J discussed this issue in Pauli v Beffa [2013] FamCa 144 and the difficulties with phrasing that order in the way suggested here.

2. I find that because of the high conflict between the parties and the inability of the father to consider other people’s points of view if they differ from his own that it is not in the children’s best interests for the parties to have equal shared parental responsibility.

3. It is appropriate that the mother inform the father of proposed major decisions and that she consider his views before making a decision.

4. The mother seeks orders that enable her to travel overseas with the children and obtain passports for them. A sole parental responsibility order is not usually sufficient for the Australian Passport Office to issue passports for children without both parents consent. Therefore I will order the father to sign and return to the mother any passport applications with 14 days of receiving them. If he fails to do so the mother will then be able to apply to the Passport Office without his consent.

Time

1. It is not in the boys’ interests to make any orders for the boys to spend time with their father other than in accordance with their wishes.  It is not necessary to consider the factors set out in section 65DAA in light of my findings.

Conclusion

1. The father will be disappointed with this decision. Unfortunately the Court does not have a magic wand that can fix this family’s problems. Hopefully the father will heed this Court’s decision and give the children space. Given space and time the children may choose to reconnect with the father and appreciate what he can offer them.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  17 July 2014