Brompton and Brompton

FAMILY COURT OF AUSTRALIA

BROMPTON & BROMPTON

[2007] FamCA 58

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT:

Mrs Brompton

RESPONDENT:

Mr Brompton

FILE NUMBER:

PAF

2002

2000

DATE DELIVERED:

8 February 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Stevenson J

HEARING DATE:

24 January 2007

REPRESENTATION

APPLICANT:

The Applicant Mother appeared on her own behalf

RESPONDENT:

The Respondent Father appeared on his own behalf

Orders

That all existing parenting orders in relation to the children
R born in May 1990
M born in August 1992
N born in March 1994
be discharged.
That the children spend time with the father as they and he arrange from time to time.
That the father’s application for contravention filed on 8 August 2006 is dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 2002 of 2000

Mrs Brompton

Applicant

And

Mr Brompton

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr and Mrs Brompton are the parents of 4 children:
P born in June 1984 (22)
R born in May 1990 (15)
M born in August 1992 (14)
N born in September 1994 (12)
P lives independently of her parents, with her partner and their baby.
Orders in relation to R, M and N were made by consent on 30 October 2000. These orders provided for a graduated regime of contact for the father with M and N. The parties also agreed to an order that the family attend counselling at Unifam. The orders contained a notation to the effect that the father sought orders for contact with R but elected not to pursue his application, due to a strongly expressed wish on the part of his son not to attend with his siblings.
By an application filed on 7 September 2005 the mother seeks to discharge the orders made on 30 October 2000. She proposed that there be an order to the effect that M and N spend time with their father at times mutually agreed by them with him.
The father sought orders to the effect that M and N spend defined periods with him, essentially on alternate weekends; half of school holidays and special occasions. He also sought orders that R spend defined periods with him. He proposed a graduated regime for R, leading to a similar arrangement as with M and N.
Also before me was the father’s application for contravention of the orders of 30 October 2000. In this application, filed on 8 August 2006, the father alleged a breach of these orders on 7 April 2006.
The hearing of the current applications commenced on 27 September 2006 before Justice Le Poer Trench in the Sydney Registry. While preparing a judgment, His Honour realised that he had been counsel for the father in the October 2000 proceedings. Accordingly, the matter was relisted on 9 October 2006, when His Honour disqualified himself and the proceedings were transferred to the Parramatta Registry for hearing before me on 24 January 2007.
By agreement of the parties, I read the transcript of proceedings on 27 and 28 September 2006 before Justice Le Poer Trench. It was agreed that I would then hear any further submissions which either party wished to make and then deliver a judgment. I read the whole of the transcript, including the submissions put during the earlier hearing, and indicated that I would not be assisted by a repetition of that material.
The father nonetheless took the opportunity to put submissions to me in substantially the same terms. The mother initially indicated that she had nothing to add to her submissions as contained in the transcript. After the father completed his submissions, and at my invitation, the mother indicated that she wished to add some information.
The father took issue with my decision to allow the mother to put further material to me. I make no apology for conducting the proceedings as I saw fit. In fact, I was greatly assisted by the information supplied by the mother. She gave an account of the time which the children have chosen to spend with their father since the matter was before Justice Le Poer Trench. Having initially objected to my decision to allow the mother to inform me of these matters, the father then sought to use this material to his own advantage.
Before Justice Le Poer Trench, the mother admitted that the father did not have contact with M and N on 7 April 2006 and claimed that she had a reasonable excuse. It was agreed that this application would be heard concurrently with the mother’s application to vary the orders of 30 October 2000. I adhered to the procedure previously agreed.

Approach to the Determination of the Parenting Issues

The principles which govern the determination of these proceedings are set out in the Family Law Act. In particular, these principles can be found in Part VII of the Act.
In determining whether to make a particular parenting order, the court is required to regard the best interests of the child as the paramount consideration: section 60CA. In determining what is in a child’s best interests, the court is required to consider the matters set out in subsections 60CC(2) and 60CC(3).
Section 60CC(2) contains 2 ‘primary considerations’ which apply to the determination of what is in a child’s best interests. The first consideration is the benefit to a child of having a meaningful relationship with both parents. The second consideration is the need to protect the child from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence. Section 60CC(3) contains 13 ‘additional considerations’ which are relevant to the determination of what is in a child’s best interests.
Section 60CC(4) obliges the court to consider the extent to which each of a child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. In addition, this subsection requires the court to consider the extent to which each of the child’s parents has facilitated, or failed to facilitate, the other parent spending time and communicating with the child, as well as participating in decisions about major long-term issues in relation to the child. It is also necessary that the court consider the extent to which each parent has fulfilled, or failed to fulfil, the obligation to maintain the child.
Section 60CG requires that the court ensure that any order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration. This section empowers the court to impose any safeguards which it considers necessary to achieve this purpose.
It is necessary also for the court to have regard to the objects of Part VII of the Act as set out in section 60B(1). The court must also have regard to the principles underlying those objects, as expressed in section 60B(2).
Section 61DA creates an obligation on the court to apply a presumption of equal shared parental responsibility, when making a parenting order. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: section 61DA(4).
It is important to note that the presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent. The term ‘parental responsibility’ is defined in section 61B as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.
If an order provides that 2 or more persons are to share parental responsibility for a child, section 65DAC imposes obligations on those persons as to the way in which decisions as to major long-term issues relating to the child are to be approached. These decisions are to be made jointly by the persons who share parental responsibility for the child. Each of these persons is required to consult with the other and make a genuine effort to come to a joint decision. It is not necessary for a person with whom a child is spending time to consult with a person who has parental responsibility, in relation to issues which are not major long-term issues: section 65DAE.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent. If an order provides that the parents are to have equal shared parental responsibility but the child is not to spend equal time with each of them, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent: section 65DAA.
In deciding whether to proceed to make an order for a child to spend equal time or substantial and significant time with each parent, the court must regard the child’s best interest as the paramount consideration: section 60CA. The terms ‘substantial and significant time’ and ‘reasonably practicable’ are defined in subsection 65DAA(3) and (5).

The Primary Considerations

The ages of the children and the current state of their relationships with their father have much relevance to both “primary considerations”. The evidence available from a Report prepared by Family Consultant Ms B on 23 May 2006 makes it very clear that all 3 children have a problematic relationship with their father. It is equally clear that all 3 children expressed a strong wish not to be forced to spend time with their father on a defined and regular basis.
Ms B found M to be “an assertive, intense and articulate adolescent who was extremely critical of her father”. She was adamant that she did not wish to spend time with her father and said her reason was “because of the things he has done to me and [N]”. She complained to Ms B that her father hits and punches her and “says things that make me feel bad” including calling her “fat”. She went on to say that he calls her “a bitch” and “says bad things about my mum, which hurts me”. M stated strongly to the Family Consultant that she would refuse to attend for any court ordered periods of time with her father and added “if I need a father figure, [D], [her stepfather], is always there and he is a nice person so I wouldn’t need to see my dad”.
Ms B observed N to be “a pleasant, polite child who, compared to [M], seemed more relaxed and less embroiled in the family drama”. N told Ms B that he does not wish to continue fortnightly time with his father because “he always puts us down and teases us and is always mean…..hits us….calls me and my sister fat and says things to hurt us”.
N made it clear to Ms B that he only wishes to see his father when he chooses to do so. He took objection to being forced into a defined and regular regime. Like M, he insisted that he would simply refuse to attend for court ordered, defined periods of time.
To Miss B’s observation R “presented as a sensitive and uncertain adolescent who was critical of his father, but has a yearning for him to take more of an interest in him”. He indicated that he has some difficulties with the father’s current partner and suggested that she tries to make him do household chores when he wishes to spend time with his father.
Ms B’s assessment of the family dynamics, unfortunately, does not give rise to much hope for an improvement in the children’s relationships with their father. She was of the view that they have become embroiled in their parents’ hostility over a period of some years, with little prospect of an improved situation given that the parents have already undertaken counselling with Unifam.
In Miss B’s opinion, M’s current aversion towards her father “appears to be based on both her own experience of her father’s apparent insensitivity towards her and her loyalty towards her mother, having witnessed over the years the intense animosity between her parents”. She also expressed concern about the father’s “lack of sensitivity to their developmental needs to have their wishes taken seriously, [with] more of a focus on his wish that they respect his authority”. Ms B’s view, with which I agree, is that it “seems unlikely that this strategy will be successful…..rather, the most likely result will be that the children will develop a stronger aversion towards him”.
Ms B assessed that the father has currently lost his relationship with M, although there is some prospect that the situation can be salvaged with respect to N. She was of the opinion that R “seems to have a yearning for a relationship with his father and would like [the father] to invite him [to his home]”. Miss B was concerned that the father’s attitude to R “indicates some lack of insight regarding [R’s] need to feel that his father values and loves him as much as the younger children”.
In recent times, the mother has involved the children with counselling at the H Centre. The result has been that all 4 children have had some interaction with their father by their own choosing and by arrangement with him.
It seemed to be agreed that the children have spent time with their father as follows:
“13/8/06 [the father] attended [M’s] soccer match and took her, [N] and [R] to dinner.
30/8/06 [The father] spent time with [M] and [N].
Father’s Day [M], [N] and [R] spent time with their father.
5/11/06 [The father] took [M], [N] and [R] to a movie.
8/11/06 [The father] had dinner with [P] and her partner.
9/11/06 [The father] took [M], [N] and [R]to a restaurant for a meal.
December 06 [The father] visited [P] and went shopping with her before Christmas.
Christmas night [The father] had dinner with the 4 children.
January 07 [The father] and [M] spent the whole day together at the beach
4/1/07 all 4 children spent time with their father at [P’s] home.”
In the past the mother has made allegations of sexual abuse against the father, in relation to P and M. She raised these allegations again in the present proceedings. I am far from satisfied that there is substance to these complaints. As Ms B observed, the mother’s agreement to unsupervised time for the children in their father’s company seems inconsistent with a genuine belief on her part that such abuse has occurred.
There is no doubt that the children would benefit from a meaningful relationship with both parents, if they are permitted to negotiate their time with their father on the basis of recognition of and respect for their views. It is obvious that they will resent any situation where they are forced to spend defined periods with him and further estrangement is the likely consequence.
I have real concerns as to the effect on the children of a regime of forced periods of time with their father. It seems to me to be more probable than not that they would suffer psychological harm in these circumstances. If the children are permitted to re-establish a relationship with their father in their own way and at their own pace, this risk would not seem to arise.

Additional Considerations
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views

I have considered above the evidence contained in the Family Report in relation to the views of the children. As I have said, they all made it clear to the Family Consultant that they do not wish to be forced into a regime of defined time with their father. They all said that they would refuse to co-operate with such an arrangement.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
I have referred above to much of the material in the Family Report which is relevant to this subsection. The children have a close relationship with their mother and have aligned themselves with her in the chronic conflict between their parents. This observation applies particularly to M.
All 3 children currently have a problematic relationship with their father. The father accepts little or no responsibility for these difficulties and places the whole of the blame on the mother and this court. His focus seemed to me to be upon exerting his authority over the children and enforcing what he believed to be his “legal right to be in their lives”. As Justice Le Poer Trench pointed out to the father, and I now reinforce, he has no such “legal right”.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The hostility between the parents has reached an extreme level. In cross-examination the mother drew the father’s attention to the following statement which he made to the Family Consultant: “I am not interested in the woman. I resent her in all ways.” The mother then asked the father: “So do you hate me?” The father replied: “I find you the most contemptible person I have ever met. I hate myself for being married to you. You know, I find you the lowest person I have ever come across.” His Honour then asked: “Hate is not a strong enough word?” The father replied: “Look it doesn’t – hate, yes, just does not describe how I feel about her”.
In my view, both parents must accept responsibility for the alarming situation in which the children currently find themselves. It follows that I consider that they both have failed to “facilitate and encourage a close and continuing relationship between the children and the other parent”.
Section 60CC(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There was no application before me which would result in a separation of the children from their mother. The issue is whether it is best for them to be separated from their father in the present circumstances.
The father’s solution to the problem was to press for orders which would force the children to spend time with him, despite their strongly expressed opposition to doing so. In my view it is likely that they would refuse to go, which raises the prospect of further contravention proceedings against the mother. Such an exacerbation of the parental conflict could hardly be of benefit to the children. I have referred already to my real concerns that a regime of forced time with their father would be likely to result in psychological harm to the children.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Both parties live in Sydney; the father at T and the mother at P. Considerations of practical difficulty and expense are thus no barrier to the children’s spending time with their father.
Section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

As I have said, the very fact that the current situation exists calls into question the capacity of each of the parents to provide for the emotional needs of the children. The difference, in my opinion, is that the mother has voluntarily engaged the services of a counsellor at the H Centre to try to help the children rebuild their relationship with their father. The father, on the other hand, persists in placing blame for the problems on the mother and the court and trying to force the children to spend time with him.
The father demonstrated his lack of insight into the children’s needs when he attempted to use the mother’s information as to the time which the children have recently spent with him as evidence of her malice and determination to sabotage his relationship with them. He seemed completely unable to comprehend that the voluntary election of all 4 children to spend time in his company is a positive development.
The Family Report contains a disturbing account of part of the father’s discussion with the Family Consultant, concerning his application with respect to R. The mother recorded as follows:
“[The father] proposed that the children should not exercise their own free will about their contact with him until they are aged 18 and that the order should include [R], notwithstanding [R’s] age. He does not expect that [R] would want to see him each alternate weekend but ‘I will be able to tell him…..it’s in the orders.
He said that he wanted [R] back in [his] life and he opined that ‘he has got to understand, I am the father who pays child maintenance and I can’t see him.
He further stated that [R] ‘needs to realise we all have to do things we don’t like” and “He should be thinking I should be in Dad’s life”.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
R, M and N are aged 16, 14 and 12 respectively. Although the father holds the mother responsible for the views which they expressed to the Family Consultant, in my view their ages and level of maturity entitle them to expect significant weight to be attached to what they said in these interviews.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
These considerations are not relevant to the present proceedings.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
The mother made allegations of physical violence directed at herself and the children by the father. She claimed that M has told her on several occasions that the father hits her and N. There was nothing in the evidence to corroborate these complaints on the part of M. Her statements may well be related to her high level of hostility towards the father.
The mother referred to an incident on 25 March 2006. She alleged that the father verbally abused her and her husband, D, on a contact changeover. They reported the incident to police, which resulted in the issue of an interim apprehended violence order. This order was subsequently revoked, in circumstances of which I have no knowledge.
The mother also made general allegations of violence directed at herself and the father during the marriage. There was no evidence to corroborate these allegations, which were not particularised in any event. The father denied most of the allegations of violence.
I did not observe the parties in the witness box and thus had no opportunity to observe their demeanour while giving evidence relevant to these allegations. In these circumstances I regard it as undesirable that I attempt to make findings in respect of the contentions of family violence. In my view, I can properly reach a decision in relation to the issue of the children’s time with their father without doing so.
Section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii) the making of the order was contested by a person
There was no evidence of any current family violence order.
Section 60CC(4): Without limited paragraphs (3)© and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)     to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)      has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
In my opinion, criticisms can be levelled at each of the parents within the context of this subsection. It does not seem to me to be a useful exercise for these matters now to be canvassed and catalogued. Such an exercise would not assist me to reach a decision as to whether there should be orders to prescribe the periods of time the children spend with their father.

The Presumption of Equal Shared Parental Responsibility

This presumption is in no way related to the time which the children should spend with their father. Neither party sought to argue that the presumption does not apply because of child abuse or family violence. Similarly, neither party sought to establish that the presumption was rebutted by evidence which satisfied the court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility.
In circumstances where the children have recently sought to spend time with their father, of their own volition, I am not disposed to vest sole parental responsibility in the mother. As I have said, she did not seek such an order in any event.
Having determined that the parents will retain equal shared parental responsibility, I am obliged to consider whether it is in the children’s best interests, and reasonably practical, for them to spend equal time with each of their parents. Obviously, in the circumstances of this case such an arrangement cannot be contemplated and, in fact, was not sought by the father.
I am then obliged to consider whether it is in the best interests of the children, and reasonably practicable, for them to spend substantial and significant time with each of their parents. Such an arrangement would be equally impracticable and contrary to their best interests. In any event, the father did not make an application in these terms.

CONCLUSION

I can see no good purpose, from the perspective of the best interests of the children, for there to remain in force orders to define the periods of time which they spend with their father. In my opinion, such a regime could well be counter-productive to the progress which has been made in recent times with the assistance of the counsellor at the H Centre. Regrettably the father seems determined to persist with his unfortunate attitude of blaming the mother and the court for the current situation and forcing his will upon the children. In my view, however, the option of ongoing counselling represents the best prospect for the children to resume their relationship with him.

The Contravention Application

As I have said, the mother admitted that the father did not spend time with M and N on 7 April 2006, as required by the orders made on 30 October 2000. She argued that she has a reasonable excuse for this contravention. As set out in her affidavit sworn 5 September 2006, the mother’s excuse was effectively that M and N decided not to attend to spend time with their father on the weekend of 7 April 2006 and simply refused to do so.
At the time when this breach occurred, M and N were aged 13 years 8 months and 12 years respectively. It would appear that their opposition to attending for prescribed periods of time with their father had been escalating prior to this incident.
M and N were interviewed by Ms B on 4 May 2006, that is, some 4 weeks after the father was unable to spend time with them on 7 April 2006. I have referred above to their strongly expressed opposition to being forced to spend time with their father. It seems to me that the mother’s options would have been very limited, in these circumstances.
The father insists that it was the mother’s manipulation of the children which caused him to miss having time with them on 7 April 2006. That proposition strikes me as inconsistent with the children’s statements to the Family Consultant. It also seems to me to be inconsistent with the mother’s engagement of the H Centre counsellor to assist the children to repair their relationship with their father.
I am satisfied that the mother had a reasonable excuse for the admitted contravention on 7 April 2006 and I so find. It follows that I propose to dismiss the father’s application for contravention filed on 8 August 2006.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 7 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BROMPTON & BROMPTON

[2007] FamCA 58

8 February 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness