BOYCE & BOYCE
[2013] FCCA 1689
•25 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOYCE & BOYCE | [2013] FCCA 1689 |
| Catchwords: FAMILY LAW – Parenting – consideration of weight to be given to the child’s view of not wanting to spend time with the father – consideration of whether child should spend time with the father. |
| Legislation: Family Law Act 1975, s.68B |
| Re F: Litigants in person guidelines (2001) FLC93-072 |
| Applicant: | MR BOYCE |
| Respondent: | MS BOYCE |
| File Number: | PAC 5761 of 2010 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 11 and 12 February 2013, 19, 20 and 21 June 2013 and 1 July 2013 |
| Date of Last Submission: | 31 July 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 25 October 2013 |
REPRESENTATION
| Applicant: | Self-Represented |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Ian Harper & Co | |
| Counsel for the Independent Children’s Lawyer: | Ms O’Rourke | |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
All prior parenting orders are discharged.
The mother shall have sole parental responsibility for the children, X born (omitted) 1996 and Y born (omitted) 2000.
The children shall live with the mother.
The child, X, shall spend such time with the father as arranged between X and the father.
The child, Y, shall spend time with the father:
(a)Each alternate Saturday from 10.00am to 5.00pm commencing 2 November 2013;
(b)For such other times and days as the parties agree.
Each period of time that Y spends with the father shall begin and end in a supervised setting at the (omitted) Contact Centre unless the parties otherwise agree. Until the (omitted) Contact Centre can provide a supervised changeover facility or if the Centre is at any time unable to provide supervised changeover services, then changeovers shall occur in the foyer of the (omitted) Police Station.
The parties shall, within seventy-two (72) hours of the date hereof, provide a copy of these orders to the convenor of the (omitted) Contact Centre and do all things to facilitate that Centre providing a supervised changeover service to the parties.
Each party shall pay one half of the total fee charged by the (omitted) Contact Centre.
The parties shall, within seventy-two (72) hours of the date hereof, provide a copy of these orders to the convenor of the Keeping Contact Programme run by Unifam at (omitted) and thereafter do all things to engage with the Keeping Contact Programme for as long as the convenor requires.
The mother shall take Y to and ensure Y attends all appointments made for Y by any appropriate officer of the Keeping Contact Programme for as long as the convenor of the Keeping Contact Programme requires.
The mother is to notify the father about any medical or counselling appointments made for Y as soon as the appointment is made.
The mother is to continue to authorise any doctor or counsellor or treating professional consulted by Y to provide to the father any information that he seeks about Y arising as a result of her consultation.
The mother is restrained, pursuant to section 68B of the Family Law Act 1975, from doing any act or thing to change Y’s surname from “Boyce” or from doing any act or things permitting Y to be known by any surname other than “Boyce”.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Boyce & Boyce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5761 of 2010
| MR BOYCE |
Applicant
And
| MS BOYCE |
Respondent
REASONS FOR JUDGMENT
These are final parenting proceedings relating to the child, X born (omitted) 1996, and the child, Y born (omitted) 2000. The proceedings, when they were commenced, also related to the child, Z born (omitted) 1995, but Z is now 18 years of age and is therefore no longer a child the subject of these proceedings.
Each of X, Y and Z are the children of Mr Boyce (hereinafter “the father”) and Ms Boyce (hereinafter “the mother”).
The father is at a loss to understand, given his perception of family relationships prior to separation, how his children have become estranged from him. The only way he can understand this estrangement is to conclude that first the mother, and then her new husband (Mr E), have engaged in an orchestrated campaign of not encouraging the children to have a relationship with him, thereby destroying what he perceived was a very loving and involved pre-separation parent/child relationship.
It is the mother’s case that she is simply to responding to Y and X’s wishes. She says she cannot and will not force Y to spend time with the father if Y expresses a contrary wish.
Given X’s age, and notwithstanding some vacillation by the father on this, the case was eventually conducted on the basis that X and the father should make their own arrangement as to what time X spends with his father.
The focus of the case was essentially:
a)What parental responsibility order should be made with respect to X and Y;
b)A determination of why Y holds the view that she does, that is, not wanting to spend time her father;
c)Whether, contrary to those views, Y should spend time with the father because it would be in her best interests to do so.
A progression in Y’s stated resistance to spending time with her father can be traced through her presentation at the interview for the Child Inclusive Child Dispute Conference, through to her interview with the Family Consultant leading to the preparation of the first Family Report, and then to her interview with the Family Consultant leading to the preparation of the second Family Report. In all, Y was seen by the same Family Consultant three times in the period from 22 March 2011 to 12 October 2012.
Documents
· Affidavit by Mr Boyce filed 15 October 2012.
· Affidavit by Ms Boyce affirmed 20 December 2012 and filed 21 December 2012.
· Affidavit by Mr E affirmed 20 December 2012 and filed 21 December 2012.
· Amended Response filed 24 December 2012.
· Family Consultant memorandum to Court dated 18 April 2011 2011 – Exhibit “AA1”.
· Family Report by Family Consultant Ms K released on 22 February 2012 - Exhibit “AA2”.
· Family Report by Family Consultant Ms K dated 24 October 2012 and released on 25 October 2012- Exhibit “AA3”.
· Other documents exhibited during the course of the proceedings.
Orders sought
Father
The father handed to the Court on Day 2 of the Final Hearing, being 12 February 2013, a handwritten document which set out the orders that he sought. That document became Exhibit “B”.
Mother
The final orders sought by the mother were as set out in her Amended Response filed 24 December 2012.
Independent Children’s Lawyer
At the commencement of the hearing, the Independent Children’s Lawyer, appropriately in the circumstances of this case, did not articulate the orders sought.
In written submissions received from the Independent Children’s Lawyer on 31 July 2013, the Independent Children’s Lawyer proposed a suite of final parenting orders.
Issues to be determined
(1)What order for parental responsibility is to be made.
(2)What live with orders are to be made.
(3)What spend time with orders are to be made.
Chronology
(omitted) 1968 The father is born.
(omitted) 1972 The mother is born.
(omitted) 1993 The parties marry.
(omitted) 1995 The parties’ oldest child, Z, is born.
(omitted) 1996 The parties’ next child, X, is born.
(omitted) 2000 The parties’ youngest child, Y, is born. Y born with profound deafness.
(omitted) 2009 The parties separate for a short period.
(omitted) 2010 The parties separate on a final basis.
(omitted) 2010 Parties engage in mediation and enter into a Parenting Plan which provides for Z and X to live with each parent on a week about basis and for Y to spend time with the father for four days a fortnight from after school Wednesday to 6.00pm Sunday each alternate week with an agreement that the plan be reviewed in or around February 2011.
(omitted) 2010 The father files Initiating Application.
(omitted) 2011 A contested Interim Hearing resulting in the parents having equal shared parental responsibility for the children Z, X and Y. Z and X to live with each parent on a week about basis. Y to live with the mother. Y to spend time with the father from 6.00pm Friday to 6.00pm Sunday each alternate weekend and from 6.00pm Sunday to 6.00pm Tuesday in each other week, and for half of the school holidays. Other ancillary orders were made including the appointment of an Independent Children’s Lawyer.
24 June 2011 Final property settlement orders made by consent.
20 April 2012 The parties divorce.
August 2012 Z and X cease spending time with the father notwithstanding Court orders to the contrary.
September 2012 Y ceases to spend time with the father notwithstanding Court orders to the contrary.
27 November 2012 The father collects Y from (omitted) Public School and spends time with her.
January 2013 Y commences attendance in Year 7 at (omitted) High School.
Conduct of the case
At the commencement of the Final Hearing, the father was advised by me as to the practice and procedure regarding the conducting of Final Hearings and provided with copies of the relevant legislation and an extract of Re F: Litigants in person guidelines (2001) FLC93-072.
At that time, the father had already filed Contravention Applications.
He elected not to delay the commencement of the Final Hearing by requiring the Contravention Applications be heard.
Neither Counsel for the mother nor the Independent Children’s Lawyer opposed the Final Hearing proceeding without the Contravention Applications having first been dealt with.
The Contravention Applications remain outstanding and await disposition following the delivery of these reasons for judgment and the making of final parenting orders.
In the circumstances of this case, the hearing of the final parenting applications prior to the disposition of the outstanding Contravention Applications was appropriate and in the best interests of X and Y as it would bring to an end any uncertainty for them arising from the outstanding final parenting hearing.
Evidence
Father
The father is quite clear in his belief that he does not believe that his relationship with Y has broken down, notwithstanding that he has not spoken to her nor spent any time with her since 21 September 2012 except for several hours on 27 November 2012.
The father is very critical of the mother and her new husband, Mr E, for keeping Y from school for forty-two days in late 2012 so as to prevent him from collecting Y from school so as to spend time with him (collection from school was provided for in the interim orders).
On 21 September 2012, the father received a telephone call from the mother’s telephone. He heard Y’s voice and he says he could hear the voices of the mother and Mr E in the background and therefore assumed the call to be on loud speaker. He said that he heard the mother say “tell him, tell him”. He described her tone as “aggressive”. He heard Y say “dad, I don’t want to live with you”. He said that he replied and said “put your mum on the phone”. He said that a conversation then ensued with the mother. They argued. The terms of their argument, although recited in the father’s Affidavit, are not relevant.
After the call ended, the father said that he contacted the (omitted) Police Station and requested that a safety check be conducted by the Police at the mother’s home with respect to Y’s welfare. He said later that evening the (omitted) Police contacted him to advise that both X and Y were well.
During 2012, he says that Y was enrolled to attend (omitted) Public School. He said the Principal of that school is Mr B.
In his Affidavit affirmed 15 October 2012, he refutes in detail twenty-five statements he highlights from the mother’s Affidavit sworn 18 September 2012. For the purposes of the Final Hearing, the mother relied on an Affidavit affirmed 20 December 2012 and not the earlier Affidavit. Nevertheless, most of the same allegations are repeated in her later Affidavit.
The father denies ever being diagnosed with a mental illness.
He says that during the marriage he was employed as a (occupation omitted). He is now a (occupation omitted) with the (employer omitted).
He acknowledges that, due to reasons of his work and the mother being at home, she was the primary carer of the children.
He says that at one time the mother sought an Apprehended Violence Order in which she made allegations that the father had threatened to rape her. He said that the Application for an Apprehended Violence Order was “rejected”. He says that the stress of the Application meant that his sleep was affected and, as a consequence, he took four sleeping tablets. An ambulance was called and he was taken to (omitted) Hospital for observation before release.
He categorically denies the mother’s allegations that he was violent or abusive during their relationship.
He denies ever having assaulted any of his children. He said “I have never hit nor hurt my daughter. Y needs no protection from me”.
He denies ever leaving Y improperly supervised when she spent time with him. He said that he arranged, on one occasion, for his mother to care for her because of his work roster and, on one occasion for a short period of time, her older brother cared for her.
He denies the mother’s allegation that he did not have adequate or proper food or fresh food for the children and always provided them with “proper” school lunches.
He denies ever threatening to walk in on Y whilst she was showering.
With respect to his current relationship with Z, he says that he has regular contact with him. He has visited his workplace. They talk on the phone and are friends on facebook.
He does not believe that it is appropriate for Y to call the mother’s new partner, Mr E, “Dad”.
He thought that Z and X had ceased spending time with him pursuant to the orders because of their age, because he had set household tasks for them to attend to, and because they had developed alternate interests.
He described the mother as “making up lies and accusations” about him.
He said that the mother attended the (omitted) (a domestic violence service) with the children so as to obtain a financial advantage by being given cheap housing.
He described her allegations of abuse and violence “as a bunch of lies”.
He says that Y’s absences from school were so extensive that the School Liaison Officer became involved.
He says that on the first day that Y was returned to school after her long absence, being 27 November 2012, he attended at the school, had a meeting with the Principal, Mr B, collected Y because it was a Tuesday and the orders were still current, and spent time with her. He described Y as “coming with me willingly”. During the afternoon Y also spent time with her cousins, her grandmother and her uncle on the occasion of a cousin’s birthday.
He says he returned Y to the mother’s care at 6.00pm at the (omitted) Police Station. He said that the mother immediately grabbed Y by the wrist, pulling her, and yelled “She smells like cigarettes”. He says that the mother then spoke to a Constable at the Police Station and he was asked to wait outside. As the mother was leaving with Mr E and Y, Mr E said to him “I’ll have you”. He says the mother’s actions in grabbing Y’s wrist likely injured it. He denies injuring Y’s wrist.
He says the Police laid no charges against him notwithstanding allegations being made by the mother of assault and abduction.
He says that he feels threatened by letters that he receives from the mother’s solicitors regarding family law issues.
With respect to the Affidavit of Mr E, he denies all the allegations against him contained therein.
He agreed with the proposition, put to him during cross examination by the mother’s Counsel, that “communication between Ms Boyce and you has broken down completely”. The father then said “I can’t talk to Ms Boyce and she doesn’t talk to me”.
He agreed with the proposition that “Y might say different things to her mother than to you”. Later during his cross examination he said:
All the children are in a situation which is difficult because of the Court proceedings, but Y is suffering most because of interruptions to her visitations with me.
He would not accept that Y would ever say to her mother that she was scared of him.
He was then directed to paragraph 64 of the first Family Report and said:
Well Y may of said that, but she was influenced by her mother.
He was then directed paragraph 32 of the second Family Report wherein it is recorded Y said “I don’t want to go to Dad’s place because I hate my Dad”. He was asked “Doesn’t that mean there is a chance she is saying this to her mother?” In answer he said “Yes. But she is being influenced by her mother”. He said “It is only when the mother started a relationship with Mr E that problems with me spending time with Y started”.
The father acknowledged “that I can’t force a parenting arrangement on X”. At another point in his cross examination, he said “Y should be forced to come to me and, if necessary, the Police should bring her”. When asked “What will be the likely effect on Y of this?”, he replied “I think she would be upset for an hour or two but would then return to normal”. He said “Any concerns expressed by Y about me are not genuine. They are the result of the mother’s influence”.
On Day Two of the Final Hearing, in the course of cross examination, the father revealed that he had recently moved to live at the home of his mother at (omitted). He then said “If I succeed in obtaining parenting orders I will move to (omitted)”.
That same day he revealed for the first time that he had a girlfriend, Ms F, who lived in (omitted) who would be moving to live with him in April 2013. He described himself as now being over the break-up of his relationship and in a good relationship with Ms F. By the time of the continuation of the hearing in June 2013, he said that Ms F and her daughters were living with him.
He denied being controlling of his wife.
With respect to Z’s comments in paragraphs 47 and 48 of the first Family Report, he could not throw any light on why Z had said these things or what Z was talking about.
He agreed that he sometimes had arguments with the children, but that he thought that this was normal. He said that sometimes they might yell at each other but, again, thought that this was normal.
When answering questions from the Independent Children’s Lawyer, the father said “September 2012 was when my relationship with Y was becoming a bit more difficult because orders were being breached”. He said that at about this time Y started to talk to him about Court and began saying “I don’t have to follow the orders, they are only guides”. He said that she began to say “I don’t have to come. Mum has said”.
He did acknowledge during cross examination from the Independent Children’s Lawyer that he did talk to the children about the marriage breakdown and continued to do so until about June or August of 2011. He described the discussion as being mainly with Z and as Y being protected from it. He acknowledged that he was, at that time, grieving and upset. He did acknowledge that Y knew he was sad and lonely so, with hindsight, was probably not as protected from exposure to his feelings or statements about his marriage breakdown as he had originally said.
In answering questions from the Independent Children’s Lawyer about X coming to live with him, the father said:
X would have to be recovered by the Police to live with me. He would then probably run away again and the Police would have to pick him up again and he would probably run away again.
He seemed to eventually concede such an arrangement could not be forced onto X.
X
She is the paternal grandmother. She described herself as a (occupation omitted). She said that her statement dated 10 October 2012, annexed to the father’s Affidavit of 15 October 2012, is true.
She said that he had never seen the father drunk nor inebriated.
She said that she is aware of Y only ever being alone on her own for about thirty minutes on an occasion when she was supposed to pick her up as the father was working and she got caught in traffic and was later than expected.
About the allegation that the father did not ensure Y attended to her hygiene, she said that she was often present when Y was being cared for by the father and would regularly hear the father say to Y “you need to have a shower now”.
In answering questions from the Independent Children’s Lawyer she said that, since February 2013, she had seen Z on three or four occasions and on each occasion he was in the company of the father.
She said the last saw X in September 2012.
Mr B
He is the Principal of (omitted) Public School. Y attended this school. He gave evidence in answer to a subpoena. He said that Y was in Year 6 in 2012 and he understood that in 2013 she would attend (omitted) High School.
In discussing Y’s school attendances, he said that she missed a number of Mondays and Fridays in alternate weeks, on days that he understood she was meant to spend time with the father. On those days, she was signed out early by either Mr E or the mother, the sign out slip often had the excuse “urgency”. He said that the school never received any explanation as to what “urgency” was.
On 8 October 2012, he said that the school received a change of information form that had been completed by the mother which indicated that the father was not to pick up Y from school nor approach her. That change of information form became Exhibit “C”.
Mr B said that Y’s absences from school eventually became so great that he made contact with the Home School Liaison Officer.
He described an incident on 27 November 2012. He had received a telephone call from the father saying words to the effect of “that he would pick Y up from school and return her to her mother at about 6.00pm”. Mr B said that he spoke to Y during the day. He said that Mr Boyce arrived at the school at about 2.00pm. Mr B arranged for Y to come to the school office. He heard Mr Boyce say to Y words to the effect that “he was going to take her”. He did not recall that Y said anything. He recalled that Y seemed happy to go with Mr Boyce. Y then went back to her classroom, retrieved her school bag, came back to the office, and the father signed her out and they left the school. In answer to a question of the father he said “you didn’t force her to go, she went with you of her free will”.
The father gave to Mr B, shortly after he received it, a copy of a letter received from the mother’s solicitor dated 8 May 2012, that letter became Exhibit “J”.
The father asked Mr B about the contents of the letter, and Mr B said “no teacher reported concerns regarding Y as set out in that letter”.
Mr B confirmed that he wrote an email to the father on 10 October 2012 confirming that no reports as set out in the letter had been made by teachers. That email became Exhibit “K”.
Mr B, in answer to the father’s questions, said that he had “an interview with the mother and Mr E at the school on 8 October 2012. During the course of that interview I was told “the Court orders are not current”.
Mr B was asked about an entry in his diary, which became Exhibit “M”. He said it was suggested to him by his superior that he ask Y why she did not want to go to her fathers. He said that he did so and that Y answered “I’m not supposed to”. He said “is there any reason”. He said that Y answered “no”.
Mr B said that after the event of 27 November 2012 he was contacted by a NSW Police officer. He said that he recounted to that Police Officer what had happened. He said that he told that Police Officer, that at “no time was Y forced to leave the school by the father” (There is a COPS Even printout in relation to that event which became Exhibit “O”).
The mother
She said that she is employed as a (occupation omitted). She married Mr E on (omitted) 2013 and now uses the surname “Mr E”.
She acknowledged that there had been an order made for herself and the children to attend upon the Unifam Keeping Contact programme. She confirmed that she had completed the “Talking with your Kids Seminar”.
She said that the counsellor at Unifam had requested that all three children attend. She had described all three children as being “angry and upset” at that prospect. She said that she had tried to persuade Y on three or four occasions. She said that on the last of those occasions, she said to Y “it might make you feel good if you go and talk about why you don’t want to go to your Dads”. She said that Y replied, “I don’t want to go, I don’t want to talk about Dad”. She said that both X and Z had also said to her that they did not wish to go.
She said that when she instructed her solicitor to write to the father about Y, she had had a parent teacher interview with Y’s teacher and had informal discussions with her. She said that the teacher had said, “Y is displaying different behaviours on days that she was to see her Dad, she was quiet and not playing in the playground”. She said that on days that she had been with her Dad, the teacher said her hair looked oily, as if she had not had a bath, and she also said “Y was yawning and not paying attention in class”. The mother, in answer to a question from the father, said “I only have trouble making Y do things when she is going to see you, otherwise she is fine”.
She conceded that there were no occasions when the father had tried to take Y from school, other than days that she was supposed to leave with him pursuant to Court orders.
The father asked her “Why was Y removed from school from 29 October 2012 until December 2012”? The mother replied, “It was after you threatened to take her from school, she was fearful and having sleepless nights and was scared to go and I didn’t send her as I was abiding by her wishes, not to see you”.
In answer to another questions, she said “I stopped using the communication book, because I thought you were using it for a purpose, other than what its ordered purpose was”. The father asked her “Did you, during our relationship, make any report about family violence”? The mother answered “No”. The mother did, however, say that she had sought two Apprehended Violence Orders, naming the father as the defendant. One in 2009 and one in 2010. With respect to the Application for an Apprehended Violence Order in 2009, she said “I did give a letter to the Court saying that I had no fears and that is why I did not proceed”. She said that she sent this letter after she had reconciled with the father. That letter became Exhibit “T”.
The mother alleged that the violence she was subjected to by the father was “verbal and psychological violence”. She conceded that there was “no physical abuse”. The father cross-examined her about an incident where her keys were removed by him from her car. In answering questions she said “the Police did arrive just after you pulled the keys from my ignition”. She conceded “it may have been that you removed the keys because I said that I was going to drive my car in front of a truck:” She was asked whether she had spoken to the father on the phone. She conceded that she had and she had told him where she was and conceded that was how he knew where to find her. She conceded that inserting the above information within her Affidavit may have provided an alternate explanation to the father’s behaviour, other than it being seen as coercive and controlling behaviour.
With respect to the incident outside the Police station when Y’s wrist was hurt she said “Y showed me her wrist and it was red and I did attempt to obtain an assault charge from the Police”.
With respect to her assertion about the father overdosing on medication, she said in answer to a question from the father “the Police told me you overdosed on your medication and that you were taken to (omitted) [mental health unit at (omitted) Hospital]. All my information is from the Police, I wasn’t there”.
With respect to paragraph 41 of first Family Report, the mother conceded that she organised with Z an emergency plan. She said “I said to Z if you hear yelling [between the father and I] take the children next door”. She said she also “told Z if he [the father] got very aggressive take the children next door”. The mother described it as a “shock” to learn at the centre that she been in a domestically psychologically abusive relationship. She agreed that she arranged for Police to attend at the father’s home, on the first weekend that he was to spend with the children, so as to get their blue baby books. She denied that she did it intentionally so as to upset the children.
On another occasion she said that she organised a Police welfare check on the father’s home because she received a text from the children indicating that they wished to come home.
She said “I have no realistic expectation that Y’s views about spending time with you will change in the foreseeable future”.
The Independent Children’s Lawyer asked the mother “You have given Y a strong message of being fearful of the father”. The mother said “I guess I must have”.
The mother agreed that Y stopped spending time with her father at about the same time Mr E moved into her home.
Mr E
He confirmed that he and the mother married on (omitted) 2013. He said he was employed at a (employer omitted). He acknowledged having had never met the father nor observed him with the children.
Mr E was asked about assisting the mother to enable Y to spend time with the father and said “I would have to leave it to the mother to ensure compliance. The Police have told us that we could not forcibly remove Y from the house to go to your place”.
He said that when Y was absent from school at the end of 2012, he was at home with her as he was not working at the time.
When asked about the incident on 27 November 2012, he conceded “possibly we told the Police Officer you took Y against her will”.
In answer to another question from the father, he said “No I haven’t encouraged a relationship between you and Y, I leave that to Ms Boyce”. He also said “until Y tells me that she wants a relationship with you, there is not much I can do”.
In answer to a question from the Independent Children’s Lawyer, Mr E said that “Y was aware that her mother and I didn’t think it was a good idea for her to have a relationship with the father”.
Family Consultant Ms K
Ms K was the author of a Child Inclusive/Child Dispute Conference Memorandum which became Exhibit “AA1”, a Family Report which was released to the parties on 22 February 2012, which became Exhibit “AA2”, and an updated Family Report, released to the parties on 25 October 2012 which became Exhibit “AA3”.
Ms K, in answer to a question from Mr Boyce in respect to paragraph 29 of the first Family Report, said “at the time of the Report, I was aware that the mother wasn’t proactively encouraging the children’s relationship with you”.
In paragraph 55 of the first Family Report, X is reported to say “X said that his mother did not discourage him from spending time with his father but would encourage them to make choices about where they wanted to spend time”.
Mr Boyce asked the Consultant about the creation of an emergency plan after the mother’s involvement with her domestic violence service. The Consultant said “it is fairly common for domestic violence services or counsellors to recommend the implementation of an emergency plan and for the child to be told of it”. The Consultant said “if there was no basis in fact for the plan [meaning that no domestic violence had been perpetrated] then the existence of the plan may shape a child’s view of the other parent”.
With respect to Z, she said that by the time of the first Family Report he was less engaged in the process than he was at the Child Dispute/Inclusive Conference. The Consultant thought that this was a fairly normal developmental progression given his age as Z, she concluded, was then likely to want to build a life outside of his family.
In paragraph 60 of the first Family Report, it is recorded, “X described his relationship with his father as “Normal. Except when he gets in to an argument” and then “it gets pretty bad”. X said that he though that most of his father’s anger was from “his work”.
In paragraph 64 of the first Family Report in discussing her father, Y said “I don’t really like my Dad… he is not really taking good care of us”. Y told the Consultant “Dad likes me but I don’t want him to like me”.
In paragraph 66 of the first Family Report, regarding future parenting arrangements, Y said “the boys and me just had a plan that we could spend one day at Dad’s and two weeks at Mum’s” and “if we can make that I’ll be really happy”. About a week about arrangement, Y said “I would miss my Mum. I would get pretty sad and everything”.
At the conclusion of her first Family Report, Ms K recommended:
a)That Z is not subject to Court Orders (at paragraph 92)
b)That Orders be made for X and Y to live with Ms Boyce and spend four nights per fortnight with Mr Boyce (at paragraph 93).
In paragraph 23 of the second Family Report, Y is recorded as telling the Consultant “Mr E thought it was a ‘bad idea’ for her to spend time with her father because ‘Dad is not really being a parent because he does not cook dinner and he makes me feel bad’”. The Consultant agreed with a question put to her by the father that Y perceives that Mr E is not encouraging a relationship with the father.
In answering a further question from the father about paragraph 23 of the second Family Report, the Family Consultant said “I did form the view that the mother and Mr E may have been saying things to Y that would cause her to form a negative view of you”.
With respect to Y’s articulated views, the Consultant said during her cross-examination “I can’t say Y’s articulated views should be dismissed or were not her own views. Similarly, I cannot say that Y’s views were not manufactured by her mother”. When asked by the father “Does Y fully understand the implication of her views”? She answered “No”.
When answering a question about requiring Y to spend time with her father, the Consultant said “There are several possibilities. She might refuse. She might run away. She might go along with it. She might find it difficult. She might go well”. The Consultant thought the last possibility “of going well” was the least likely outcome.
The Consultant was “concerned about the father’s capacity to repair his relationship with Y”.
In paragraph 40 of her second Family Report, the Consultant evaluated:
Y’s narrative appeared somewhat simplistic for her development age and, at times, she appeared to be ‘concrete’ in her thinking and literal in her responses. Y was not always able to provide detailed and causal explanation to support her strongly articulated views. Furthermore, Y’s emotional intelligence did not appear to be of the level that would be expected for her chronological age. It is likely that these issues were, at least in part, related to the impact of Y being born profoundly deaf on her receptive and expressive language skills.
In paragraph 41 of the Family report, the Consultant records “On all three occasions that Y has been interviewed she has consistently presented as positive about her mother and negative about her father”.
In paragraph 42 of the second report, the Consultant recorded “Y did not impress as being of an age or stage of development whereby she could fully understand the implications of her articulated preference to spend no time with her father”.
Ms K concluded, in her second report, with the following recommendation:
It is recommended that significant consideration be given to Y’s consistently articulated view that she felt considerable discomfort spending time in the care of her father (paragraph 51).
In answering questions from the Independent Children’s Lawyer, Ms K affirmed her recommendation that the parents and Y re-engage with the “Keeping Contact Programme” despite Y’s stated objection.
Ms K was of the view that concurrent engagement with the Keeping Contact programme with daytime periods of time between Y and the father with changeovers at a Contact Centre was a possible outcome given the length of time since Y had spent time with her father.
Ms K recommended against changeovers at Y’s school.
Ms K was of the view that if there were no orders for Y to spend time with her father then she would lose her relationship with her father with the consequence that she would lose paternal identity. If she lost paternal identity Y had an increased risk, long term, of having a less full sense of self which could impact on her ability to form intimate relationships, would diminish her resilience, could diminish her ability to learn conflict resolution and could result in an increased risk of anxiety/depression.
Ms K was of the view that in this case both parents have something to offer Y.
Ms K advised against a change of Y’s surname as it would send a negative message to her about her father and may cause her to form negative implications with the paternal name.
Determination
What order for parental responsibility is to be made?
The mother raises the issue of the father having perpetrated verbal and psychological abuse upon her. The evidence fell short of proving this.
She sought to prove the father engaged in coercive and controlling family violence. The only evidence she lead about this was an incident recorded in paragraph 9 of her Affidavit. However, she has not frankly and accurately recorded this incident. She did not record she initiated telephone contact with the father. Neither did she record that she told the father of her location. Finally, she does not record that she told the father she was “thinking of driving under a truck”. In leaving out this detail the mother intentionally sought to mislead.
The father in going to her location and removing her keys from her car’s ignition, in the context of the above, acted in a reasonable way. In the above context his action is not an example of coercive and controlling family violence.
I cannot be satisfied, given the mothers inaccurate reporting of the above incident, that she is a reliable witness in any aspect relating to allegations of family violence that are not otherwise corroborated.
Such corroboration is provided in Exhibit “V”. The father admits to the intake officer at (omitted) Hospital on 15 October 2009, “that he is very controlling. He does not let the wife out to do the shopping, has no access to their account. Mr Boyce feels very insecure in their relationship…”.
I am therefore satisfied in the last 12 to 15 months of their relationship the father did become controlling of the mother.
The father is employed in a stressful occupation that is not without danger. I accept that on many occasions he came home from work stressed and exhibited verbal anger. Undoubtedly, this would have been distressing for the children and the mother. The children, especially X, in their reports to the Family Consultant articulate they had difficulties in coping with the father because of this. However, this behaviour falls short of being family violence focussed on the mother or the children.
Since separation, the parties have been unable to communicate. They do not talk to each other. Given Y’s age, 13 years, and her profound deafness, medical decisions that have important consequences need to be made for her. The parents are unable to jointly do this.
For the reasons set out above an order for the mother to have sole responsibility for Y will be made.
Given X’s age (he turned 17 on 8 October 2013) the issue of sole or joint parental responsibility is not so crucial. There may, however, have to be decisions made about his educational future and so, for the same reasons, the mother is to have sole parental responsibility for X.
The mother, because she is to have sole parental responsibility, will have to be restrained from changing Y’s surname. I accept the Consultant’s view that to change Y’s surname would cause her loss of paternal identification which could cause her to form negative perceptions about her father which will not be in her best interest.
A restraint pursuant to section 68B will be necessary given the mother’s capacity to be disingenuous.
What live with and spend time with orders are to be made?
In the Consultant’s opinion, both parents have much to offer Y. I accept and agree with this opinion.
Y will benefit from a relationship with her father.
Y most identifies with her mother. Y missed her mother when away from her for lengthy periods. Y has always lived with her mother. The father concedes the mother has always had a greater day to day involvement in Y’s life than he has.
On 27 November 2012 Y complained of a sore wrist. I am comfortably satisfied this soreness was caused unintentionally by the mother when she was holding Y outside the Police station. That the mother then sought to blame the father is symptomatic of the negative view she has of the father. In the circumstances of the incident it was an improper conclusion for the mother to make. Other than this neither party has been physically abusive of Y. I find there is no need to protect Y from the possibility of abuse. I am satisfied neither parent would intentionally physically harm Y.
Given Y’s emotional immaturity and lack of understanding of the implications of her view to spend no time with the father, limited weight is to be attached to Y’s views.
Y’s view of her father has also been negatively shaped by both Mr E and the mother. Neither has sought to encourage Y to have a relationship with her father. They improperly kept her from school on days her father was to collect her. They provided no adequate verbal encouragement and rather, in the words of X, “left them to make choices”. Y lacks the “emotional intelligence” to make these choices. Such actions do Mr E and the mother no credit.
Finally to spend no time with her father would cause Y to lose her relationship with him and expose Y to the increased psychological risk the Family Consultant referred to.
These are the reasons that cause me to attach little weight to Y’s views.
Y has a close relationship with her mother. She does not like to spend a lot of time away from her mother. Y likes Mr E and has a positive view of him.
Because she has spent no time with her father for more than 12 months her relationships with him has become disrupted and, in the Consultant’s view, in need of repair. Formerly she had a good relationship with her father
Y knows Mr E children and has spent time with them. She has positive feelings about those children.
Y has never met her father’s new partner nor her children. She has no relationship with those persons. I cannot be certain how she will react to them.
The parents, since separation, have not communicated about Y except when they agreed to implement a parenting plan, negotiated through mediation. Apart from that, they have not communicated with each other.
Since September 2012, apart from a few hours on 27 November 2012, the father has not spent time with Y. This has not been because he has not wanted to nor not tried to. This circumstance has come about solely because of the mother’s actions. The mother has wilfully disobeyed Court orders to have Y spend time with the father. In her wilful disobedience the mother withheld Y from school for two extended periods so as to thwart the father’s attempts at spending time with Y.
The mother has improperly allowed Y to not participate in a therapeutic intervention at the Keeping Contact Programme.
In these aspects of her parenting of Y, the mother has not focused on Y’s proper needs. It is one of the worst examples of bad parenting. The mother has, thereby, displayed an unacceptably bad attitude to Y and has proved herself, in this aspect, to be an extremely irresponsible parent.
To compromise Y’s education in the way the mother has, especially given Y’s deafness, is inexcusable.
Both parents have fulfilled their obligation to maintain Y.
The Independent Children’s Lawyer seeks orders for Y to spend time with her father. This will be a change from Y’s immediate experience. It will be a change not immediately welcomed by Y. The length of period proposed will not negatively impact Y’s close relationship with her mother. Such time will provide the highest possibility of the re-establishment of Y’s relationship with her father, and will give Y the opportunity to spend time with other members of the paternal family.
Apart from Y’s reluctance to spend time with her father, there is no practical difficulty or expense occasioned by her spending time with her father. It may cause the mother some emotional discomfort by her having to be firm with Y to ensure compliance with Court orders. Indeed, initially the mother may have to be physically assertive with Y. The mother’s application of physical assertiveness at (omitted) Police Station on 27 November 2012 demonstrates the mother has the capacity to be assertive with Y, although her assertion on that day was misplaced and misdirected.
Both parents have the capacity to meet Y’s emotional needs. In recent times the mother has chosen not to. The mother has also, by withholding Y from school, chosen not to prioritise Y’s intellectual needs.
Y is a young teenage girl whose emotional maturity is less than what would be expected from her chronological age. This is the expert opinion of the Family Consultant and I accept that opinion.
For reasons discussed earlier, the mother has an appalling attitude to the responsibilities of parenthood. I make no similar criticism of the father. He has sought to maintain his relationship with Y and been thwarted at all times by the mother.
The father disclosed controlling behaviour towards the mother, as earlier referred to. His attempts to distinguish or explain away this behaviour does him no credit and raises concerns he has not fully dealt with this issue.
His assertion that he has now come to grips with the breakdown of his relationship with the mother has some credence given his entering into a live-in relationship with his new partner and her children.
There are no existing family violence orders notwithstanding there was family violence during the relationship.
For these reasons it will be in Y’s best interest to spend time with her father as sought by both him and the Independent Children’s Lawyer. Whilst such an order will be contrary to Y’s views, the orders are in her best interests.
Having supervised changeovers at the (omitted) Contact Centre will accord with one of the oral recommendations of the Family Consultant. The (omitted) Contact Centre is the closest Centre to the mother’s home and is thereby the most reasonably practicable location. It is accessible by car or train.
The mother is to ensure Y’s engagement with and participation in the Keeping Contact Programme so as to accord with another of the Family Consultant’s oral recommendations. Because both parents will also be engaged with the programme it will provide the father with a professional underpinning to his attempts to repair his relationship with Y, and will give the greatest chance of success to the relationship repair process.
This programme is conducted by Unifam at (omitted). This location is accessible by public transport.
Participation in the programme will enable the mother to address the shortcomings in her attitudes and capacity as a parent. This opportunity, if embraced by the mother, will have a positive benefit for Y, enabling her to see that the mother is willing to promote and encourage Y’s relationship with her father. Such a change in the mother’s attitude, if it occurs, will be enormously beneficial for Y.
Y, at this time, is likely to be resistant to spending the significant and substantial periods of time with her father that he seeks. She has never lived in an equal time arrangement. Emotionally she could not cope with an equal time arrangement, nor could she emotionally cope with a significant and substantial time arrangement.
To order such periods run the significant risk of causing Y to be resistant or run away. A risk identified by the Family Consultant as being a real risk. If Y were to run away from her father this risks destroying any chance of a relationship between Y and her father.
The father should not see these orders as being the Court approving of the mother’s bad parenting behaviour. It is not and does not. It does, however, recognise the tenuousness of the existing father/daughter relationship. Much effort, with professional assistance at the Keeping Contact Programme, will be necessary to maximise the potential to repair the father/daughter relationship.
X’s age, being 17, means he can manage his own relationship with his father. This is a circumstance that has existed for a long time now, and is the only viable order that has any prospect of implementation. For a long time X has been making his own decisions about how and when he spends time with his father. Given X’s age his wishes are determinative of the outcome.
Considering and balancing the above reasons, the mother is to have sole parental responsibility for Y and X. Y is to live with her mother and spend time with her father for several hours each alternate weekend. Both parties and Y are to engage with the Keeping Contact Programme. Supervised changeovers at a Contact Centre will provide additional professional assistance to the parties. Changeovers at school have not worked in the past and would disrupt Y’s education.
I am satisfied and find that these orders, for the reasons outlined, are in each of Y’s and X’s best interests.
I am satisfied and find that these orders as they relate to each of Y and X are also reasonably practicable.
Therefore, I make orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 25 October 2013
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
-
Injunction
0
0
2