Cody & Webster (No 3)

[2012] FamCA 990

FAMILY COURT OF AUSTRALIA

CODY & WEBSTER (NO 3) [2012] FamCA 990

FAMILY LAW – CHILDREN – Where two previous substantive judgments were delivered in relation to the parties’ ongoing parenting dispute – Where regular holiday time was ordered for the children to spend time with the father on a graduated basis – Whether, in accordance with the mother’s application, orders which provide for the children to spend time with the father should be suspended in favour of an order that they only spend time with him in accordance with recommendations made by two psychologists – Where the psychologists were engaged as a consequence of previous orders – Where neither psychologist recommends that, in the forthcoming Christmas school holidays, the children spend time with their father in the United States of America –Whether the children should visit their father in the United States for Christmas holidays or spend time with him in Australia –  Whether the mother has established sufficient change in circumstances to warrant further hearing in relation to the children’s time with the father – Where the children not having spent time with the father pursuant to orders previously made and the emotional and psychological stability of the eldest child warrants further consideration of the children’s time with the father in the forthcoming school holidays – Best interests of the children – Where the children are to spend time with the father in the United States in the forthcoming school holidays accompanied by the mother – Where the time the children spend with the father is staggered with initial periods shorter that later ones with flexibility for overnight time with the father at either child’s request.

Family Law Act 1975 (Cth)

Rice & Asplund (1999) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Cody

RESPONDENT: Mr Webster

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1571 of 2010

DATE DELIVERED: 23 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 12 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies

SOLICITOR FOR THE APPLICANT: York Family Law

SOLICITOR FOR THE RESPONDENT: Meyer Partners

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Pending further order

1. That Orders 3(c) and 3(d) of the orders made by this Court on 27 August 2012 are suspended.

2. That the children, T born … February 1998 and L born … July 2000 (“the children”) spend time with the father during the Christmas 2012/2013 holidays in B Town, in the United States as follows:

   (a)       on 2 and 3 January 2013 from 10.00 am until 3.00 pm;

   (b)       on 4 and 5 January 2013 from 9.00 am until 5.00 pm; and

   (c)       on 8, 9 and 10 January 2013 from 9.00 am until 6.00 pm.

3. For the purpose of implementation of the above order the mother shall:

   (a)deliver the children to the father at a central location nominated by him in B Town at the appointed time on 2 January 2013 and then to his apartment on each morning thereafter;

   (b)provide the children with all the necessary clothing;

   (c)notify the father in advance of the children’s requirement, if any, of ski gear or other equipment;

   (d)provide the father with a précis of the children’s snow skill and experience; and

   (e)accommodate the children in B Town during the period covered by these order.

4. For the purpose of implementation of these orders the father shall:

   (a)within one (1) week contact the children’s therapists and T’s analyst and obtain up to date information from them (to the extent they are willing to give it) about how to best manage the children’s time with him;

   (b)no later than 25 December 2012 give the mother written notice about where she is to deliver the children to him on 2 January 2013 and his address in B Town; and

   (c)provide the children with such snow equipment as they require.

5. That the mother’s Application Initiating Proceedings filed 5 September 2012 and her Application for interim Orders 2 and 3 filed the same day is adjourned to 10.00 am on 24 January 2013.

6. That the father’s Response to the mother’s Initiating Application and Application for interim orders filed 14 September 2012 is adjourned to 10.00 am on 24 January 2013.

7. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Webster & Cody (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1571 of 2010

Ms Cody

Applicant

And

Mr Webster

Respondent

REASONS FOR JUDGMENT

1. This is third substantive judgment delivered this year in relation to the parties’ ongoing dispute about their children.  It is difficult to know whether for them litigation has become a way of life and irrespective of the Court’s attempts to relieve the children from this burden it will continue.

2. These reasons should be read in conjunction with my reasons for judgment delivered on 20 March 2012 and 27 August 2012. 

3. At issue is whether, in accordance with the mother’s application, orders which provide for the children to spend time with the father should be suspended in favour of an order that they only spend time with him in accordance with recommendations made by two psychologists.  The psychologists were engaged as a consequence of orders made on 20 March 2012.  Neither recommends that in the forthcoming Christmas school holidays the children spend time with their father in the United States of America.  Of immediate concern is whether the children should visit their father in B Town this Christmas holiday or spend time with him in Australia.

4. It will be recalled that when the parties separated T was 3½ years old and L was 12 months.  Separation occurred in London which is where the parties and family were established.  With the father’s genuine commitment to the children’s and mother’s emotional and psychological wellbeing, agreement was reached for the mother and children to move to Australia.  This occurred in April 2002 and is where she and the children have lived ever since.

5. Some time later the father returned to live in the States, from whence he hails.  He remarried and with his wife has two children, one of whom is newborn.

6. The history of contact between the father and children is set out in my reasons for judgment delivered 27 August 2012.  Suffice to record at this point, that having made many trips to the States to see their father; the last occurred in late December 2007/early January 2008.  That trip went poorly and ended early.  At the father’s request, the mother came to New York and took the children home following which they jointly engaged Dr P who is a psychiatrist.  He highlighted how difficult it had been for the children to travel to the States on their own and their anxiety at being separated from their mother.  His comments were made against a background of the mother’s refusal to accompany the children to the States, with the children generally accompanied by a nanny or someone engaged for that purpose.  Both parties took different messages from Dr P’s report; essentially accepting those parts which were consistent with his or her opinion and rejecting inconvenient truths.

7. Bizarrely, given the wealth enjoyed by each party, child support then became a significant issue in relation to which at par 117 of my August 2012 judgment I said:

   The parties should be ashamed that their actions resulted in a complete cessation of face to face contact and collapse of the UK parenting orders.

8. In any event, the father eventually filed an application for orders that the children live with him in the States.  There is no doubt his application was troubling for the children.  In relation to his application, at pars 162 and 163, I said:

   162.The mother was clearly dismayed by the prospect the Court could even contemplate relocation orders along the lines proposed by the father.  Her dismay related to not only disruption to her life but that the Court, armed with [Dr W’s] evidence, could give so little weight to the children’s strongly articulated views to the contrary and the strength of her and their ties to Australia.  [Dr W] considered that the mother would be highly unlikely to adjust to the living in the States and that even with her nearby the children would not have access to the same level of emotional and personal support from her that exists in Sydney.  His point, which was strongly made and upon which considerable weight is attached, is simply that in the States the mother would be unable to parent the children as well as she does now.  In other words, she would be a different and more vulnerable parent.  The gravamen of [Dr W’s] evidence is that in this regard the mother’s history of depression and eating disorders could not be ignored and it needed to be recognised that she too has struggled with anxiety.

   163.There is no doubt the father gave a great deal of thought to his relocation proposal in relation to which he sought advice from eminent health professionals.  Of course, the advice he received was proffered on the basis of his view about the family’s situation.  As has been discussed, the father’s notion that the children have been subjected to parental alienation which is the primary, if not sole, cause of his difficulties in establishing and maintaining a relationship with them, has not been accepted.  Rather, as it is hoped can been discerned from these and my earlier reasons for decision, the situation is more complex.  While it is accepted that there are obvious positive elements in the father’s primary relocation proposal; such as the opportunity to develop and maintain closer relationships with the father, his wife and [R] (as well as paternal relatives), to experience a different style of education and have the best opportunity to attend some of the world’s great universities plus, of course, to immerse themselves in a different culture from which one half of their genetic identity emanates.  These factors, however, are not afforded the same or even comparable weight as is given to the children’s views against the father’s primary proposal, the effect of disrupting their lives into which they are settled and enjoy or [Dr W’s] evidence about the effect on the children emotionally and psychologically were such a change implemented.  It is accepted and given significant weight that the children would rightly feel betrayed by their parents, adults and society were they required to relocate.

9. It is with dismay that I record the father’s response to the mother’s current application includes an alternate proposal the children live with him in the States.  It is a proposal that warrants strong criticism.  That said, so does the mother’s claim for final orders which replicate orders made in August 2012.  Not only is her application for Orders 1 and 2 otiose it is an abuse of the Court’s process which should not be tolerated.

10. In any event, in the lead up to the most recent final hearing, Dr W, who is a psychiatrist, was appointed single expert to report upon the family and make recommendations in relation to the parenting applications.  It was during those investigations after a lengthy gap that the children and father saw each other. Dr W’s evidence in relation to the children’s views against contact with the father in the States and in T’s case, at all, are discussed in my August 2012 reasons.  However, it is important to note the findings made at pars 164 –170 as follows:

    164.The parties and ICL agree that the children’s views against contact with the father in the States (or in [T’s] case at all) should be afforded considerably less weight than their views against relocation and disruption to their ability to continue to reside with the mother.  Essentially, the different approach to the significance of the children’s views, centred upon acceptance that their relationship with the father had been mishandled and their views and attitudes towards him do not reflect the same clarity of thought or maturity in relation to the significance, or lack thereof, of a number of events which they view as negative, but which mature reflection would give a more benign context.  In other words, he was judged too harshly and, for example, their views that he valued money more than them are unfair and do not reflect reality.

    165.[Dr W] was surprised and pleased to learn that during the hearing agreement was reached for contact between the children and father during school holidays; twice in Australia in 2012 and for a longer period in the States during the 2012/2013 school holidays.  It was [Dr W’s] opinion that the children would be positively influenced to hear from the mother her proposals and support for face to face contact in Australia and that she would take them to [B Town] to spend block periods of overnight time with the father.  The mother agreed with [Dr W’s] suggestion that she participate in a meeting with the ICL and the children to reinforce her support for this contact.  Although it is accepted that the ICL could properly consider that this role would be better facilitated by the family therapist, [Dr W’s] recommendation that the ICL facilitate this discussion has obvious merit.

    166.It is appropriate to approach the impact of the parties’ agreement about the resumption of face to face contact with cautious optimism.  Although both children perceive that their mother has previously encouraged contact with the father, as [Dr W] explained, this message was mixed with behaviour and remarks by her to contrary.  The point being, from the mother the message about the value of their relationship with the father was mixed and probably confusing for the children.  It is accepted that her support for this resumption of contact is likely to have a real and positive impact on the children’s willingness to re-engage with their father and establishes a framework to improve their troubled relationship with him, as well as contact thereafter.

    167.The parties and children are enthusiastic skiers with skiing in North America during the Christmas school holidays an activity they have shared and enjoyed with each parent.  The father has two expensive apartments in [B Town], which is where it is agreed the children will spend time with him during the forthcoming Christmas school holidays.  The mother has friends and relations in the States and she is able to arrange comfortable on-snow accommodation in or in reasonable proximity to [B Town].  Although it is accepted that she would prefer not to be tied down by having to take the children to and from the States annually, the inconvenience and expense can be accommodated by her over the next few years.  In the event she returns to paid employment the duration of the children’s stay in the States should roughly coincide with her leave entitlement.

    168.It was [Dr W’s] recommendation that in relation to the children’s time with the father, interim orders were appropriate and future contact should be reviewed after the Christmas 2012/2013 trip to the States.  With this approach the mother and ICL agree.

    169.Resolution of this issue has been finely balanced.  It is accepted that it is not possible to determine with certainty that the children’s time with the father will be as successful as hoped for and thus, long term orders predicated upon a successful resumption could exacerbate rather than ameliorate conflict.  On the other hand, it is contended by the father that orders which set out the Court’s support for the children’s future contact with the father and establish an expectation and obligation for the mother’s continued support is advantageous and makes it likely that the momentum achieved during the hearing will endure.  According to the father, his approach is least likely to lead to further proceedings. 

    170.Two factors have tipped the balance in favour of the father’s approach.  Namely, the benefits to the children and parties of continued momentum and that the father is unlikely to try and coerce the children to spend time with him against their strong contrary views.  In this regard it is noteworthy that this case has not been peppered with contravention applications and that persuasion rather than enforcement has been pursued.  

11. As was anticipated, the father spent time with the children in Australia during April 2012.  It was anticipated he would again do so in September 2012.  However, by agreement, because of particular stresses in T’s life the September 2012 contact did not take place.

12. As part of his school curriculum, during Terms 3 and 4 this year, T was due to live away from home at his school’s country campus.  In relation to the significance of his doing so, at paragraph 171, I said:

    …In a setting which is familiar to him and where he will be supported by school colleagues and staff, he will experience prolonged separation from his mother.  By then, he will have had the assistance of a child analyst and family therapy will be underway.  It is to be expected that he will become more independent and better able to manage his anxiety for his mother.  It is likely that this will make it much easier for him to cope with separations from her in order to be with his father.  There is no doubt that this will be easier if the mother is in the same country as the children and if either child became anxious, they could know she is not too far away.  It is in this context, that future contact along the lines proposed by the father is accepted as being in the children’s best interests.  Of course, this conclusion is reached in the context of his commitment to visiting the children in Australia.  If he fails to do so, it is difficult to discern how he could expect the children to view this other than with cynicism in relation to his commitment to them.

13. It is common ground that T was unable to cope at the country campus.  Six days into his stay, he sent the email set out below to the mother:

    Hi mum,

    I miss you so very much and I really want to go home.  I think of you every single day and try my best to read your letter every day though it is sometimes really hard to do that like when we [sic] going on hiking camps.  I think that I am going to need therapy as I am having really disturbing thoughts concerning depression and wanting to harm myself.  Going on the hike was the [sic] one of the worst experiences that I have ever had including the experiences in America.

    Please reply soon concerning whether I need to go home or not it is just that I am really afraid and worried about what I will do if I stay here any longer.

    Please do not do anything rash though and send me a reply as I do not have a hike for another week and have school for the next 5 to 6 days.

    I really hope that I can see your reply soon as I have free time now.  I miss you [L] and [Y].  I really need some help mum,

    Sincerely,

    Your loving son who misses you very much,

    [T]  (wife affidavit, 4 September 2012, annexure “A”) 

14. The following day, with the school’s support, the mother collected T and he returned to Sydney where he engaged in intensive therapy with Ms A, who is one of the psychologists referred to earlier.  In accordance with her and the school’s advice, T remained at home for about three weeks.  It is during this period that Ms A made the first of two Child at Risk Notifications to the NSW Department of Family & Community Services.  The gravamen of her notification is found in the Department’s records (Exhibit “B”).  The details are set out below:

    Caller stated there was a bitter divorce and father fought to have the children join him in the USA.  Caller stated father reportedly looks fine on the surface.

    Caller stated father has not been diagnosed with Aspergers but reported shows traits of this, he wants to be kind and wants to relate but he is rough with [T] physically and until recently was wrestling and picking him up and slamming him down, unaware he was terrifying [T].

    Caller stated there are no Family Court orders but there is a Court date pending, no date set.  Caller stated there had been a family assessment through the Family Court and caller was requested by the Court to see [T], and [L] is being seen by a separate family therapist (NFI).

    Caller stated [T] usually copes with father’s treatment of him, and sometimes he can’t.  Caller stated father either comes out to see the children during the school holidays or they go to New York to be with him.

    Caller stated [T] attends [S School] and [T] is currently at “BB” this Semester, a bush survival experience which began a month ago and goes for 6 months.  Caller stated BB is physically and emotionally tough and is designed to assist boys in their maturity.  Caller stated the boys have a week at home during the October school holidays and father is coming to Sydney to see the children.

    Caller stated [blanked out] has no comment regarding whether [T] should see father, however [blanked out] has been seeing him for some time, and [T] is reporting having repeated nightmares, night terrors, panic attacks and sweats.  Caller stated [T] is allowed by BB to Skype with caller on Tuesdays and Wednesdays each week he is there.  Caller stated [T] is traumatised, and has said he will go crazy if he has to spend a week with his father in October.  Caller stated [T] does not sleep and is incredibly anxious about the time with father.  Caller stated father is not able to negotiate, he is “full on”, possibly without realising the effect he has on [T].

    CPCW asked caller if mother was aware of this, and caller stated mother is worried about [T]’s psychological state and feels powerless.  Caller stated father is reportedly looking forward to seeing [T] but [T] is scared to see father.

    CPCW asked caller if the children had a separate legal representative in the Family Court.  Caller stated they do and she would be ringing this person after calling the Helpline.

    Caller stated mother and [T] are aware of this report.

1. It is a matter worthy of unfavourable comment that Ms A informed the mother and T about her notification but made no attempt to inform the father.  Nor did she put into historical context the factual preamble summarised in the first three paragraphs.  The point being, her notification was suggestive of current events rather than antiquity.  She does not seem to have contemplated that the father might agree, as he subsequently did, to give T the space he needed to address his inability to cope with country campus life (and separation from his mother) without the complication of spending time with him.  Nor did she speak to the father about her remarks about his rough play.  Had she done so, she would have learned this was no more than a game played a few times when T was 4 and 5.  In no way could it be described as violence or warrant a report to a child protection agency.  So that it is clear, the father has never physically harmed the children and there is no evidence he would ever do so.

2. Following final orders being made on 27 August 2012, both therapists (T attends Ms A individually and Ms CC is engaged for the family) were provided with copies of the orders.  This promoted a second notification by Ms A.  The notification details are recorded below:   

   [Blanked out] previous report regarding similar concerns.  Caller states that Family Law Court Orders have been put in place that allow father, unknown to have contact with the children in the first week of the school holidays, contact will be unsupervised.

   Caller states that [T] appears quite fearful of his father.  Caller states that [T] has nightmares about spiders and is quite agitated when speaking about his father and contact with his father.  [T] states that he cant [sic] have a conversation with his father as he lectures him all the time.

   Caller was told by [the mother] that father shows signs of having Aspergers and has a rage and there have been incidents when children were exposed to shouting and that the father “bullys” her and the children.  [The mother] is worried based on previous experiences and caller states that [the mother] has voiced her concerns in Court.  [The mother] is concerned about the contact that will occur in the holidays.

   Caller believes that [the father] has been diagnosed with depression, but does not know details and has possible PTSD.

3. Quite properly the department did not accept that the notification suggested either child was at risk from the father.  There was no basis for Ms A’s statement that the father had been diagnosed with depression and has possible PTSD.  If per chance she intended to convey that T had been diagnosed with PTSD, it is appropriate to observe that investigations by Dr P, Dr W and an earlier therapist, Dr G, made no such diagnosis.

4. A more balanced account of Ms A’s therapy with T is found in her undated report attached to her affidavit of 20 September 2012.  There, she explained her rationale for the notifications as being “[m]y main concern was that [T] would need to recuperate (from school) quietly at home after being in the high pressure of the challenges of outdoor life at [BB] without the added pressure of daily contact with his father”.  It is her opinion T is a boy “… who still carries trauma from the parents’ separation, and his father’s unwitting aggression.  [T] needs time to heal, and time to get to know his father again without pressure”.  She explained, in her view, it “… is too soon to plan long days of face to face contact with [T’s] father without monitoring how the experience is unfolding for both of the children.  I believe that if contact is taken slowly and the children feel they have some say in what happens their relationship with him will heal and begin to build”.  It is worthy of repetition, Ms A is not L’s therapist and the evidence would suggest they have never met.  It was quite wrong of her to express an opinion in relation to contact between L and her father.  Although it is accepted that Ms A has a useful therapeutic relationship with T it is not accepted that she has a sufficiently balanced view of the facts to afford weight to her recommendations. 

5. Ms CC has provided two reports, the first to the Independent Children’s Lawyer (“ICL”) on 24 April 2012 and the second as a letter written to the parties dated 12 September 2012 (Exhibit “A”).  In the first report, Ms CC commented upon the father’s apparent inability to validate or acknowledge the children’s feelings and his “… negligible show of interest or dialogue with [the children] during discussion”.  In short, the father was described as being “reasonably at ease in the children’s presence in the waiting room but struggled to relate to them in a supportive manner during sessions”.  The father’s apparent lack of empathy and insight into the children’s feelings “his obsessive focus on his solution [that the children live with him in the States] is the only approach that will work, and inflexibility around learning better ways to relate to the children” caused Ms CC to contemplate that he has Adult Aspergers Syndrome.  No such diagnosis was made by either Dr W or Dr P and indeed, Ms CC’s observations constitute no more than suspicion.  It was at least incautious for Ms CC to express this view in this manner.  Greater weight is attached to the lack of such diagnosis by the two psychiatrists, who with respect to Ms CC have a better knowledge of the father and the facts.  It is noteworthy it was during therapy that Ms CC felt the father struggled compared to being “relatively at ease” with the children in the waiting room.

6. Although Ms CC did not discuss this notion (Aspergers) with the father, she reported to the ICL that his limited insight would make it more difficult to address the issues in relation to the family that need to improve.  Thus, she was not surprised “… there was limited therapeutic progress, despite the children being open and willing to connect with him”.  Ms CC reinforced the desirability (indeed necessity) of the father requiring considerable direction if he is to foster a relationship with the children which would enable them to communicate with him without fear of relocation to the States being a recurrent theme.  So that it is clear, there is no evidence that outside of therapy this has been a recurrent theme. It is inferred it is not.

7. In any event, it is inferred that recommendation (of direction) was communicated to the father and it is disappointing to observe that there is no evidence he has established a therapeutic relationship with a health professional in the States. 

8. Ms CC concluded that report with the following remarks:

   I am continuing to consult with the children and [the mother].  In relation to [the mother], I am helping her develop ways of coping with her anxiety so that she is better able to support the children in their relationship with [the father].  I am hopeful that with further intervention it may be possible for the children to feel comfortable with [the father] in future contact times, and eventually, overnight access.  To this end, I will be working towards Skype contact between the children and [the father], initially in my presence, and when the children are more comfortable, independently.

9. Ms CC’ second report states the obvious.  Namely, that the ongoing litigation, the prospect of relocating to the States and the protracted and acrimonious circumstances of the parties’ separation has had a detrimental effect on the children.  Ms CC recounted T’s troubled psychological state as he dealt with the separation from his family entailed in the country campus experience and L’s anxiety “… and persistent fears that she will be separated by the Court from [the mother] with resultant nightmares”.  L was described as compliant with treatment strategies in relation to which it is noted “… the ease with which [L] is able to benefit from treatment should not underestimate the significant distress she experiences about her relationship with [the father]”.  Ms CC recommended against L being required to spend time with the father along the lines required by the final orders “especially if contact is on her own”.  It is Ms CC’ opinion that “at this stage, it is unlikely that [L] will be able to successfully manage overnight contact with [the father], or even daytime contact on her own”.  Again, the message is recounted to the parents that “without you both helping [L] to feel safe and secure, it is unlikely that [L] will be able to have any significant relationship with [the father]”.

10. It is vexing and disappointing that when L met Ms CC in April 2012 steps had not been taken to inform the children that on 20 March 2012 in my reasons for decision published that day, I said:

    15.Subjected to strong cross-examination, particularly by counsel for the father, [Dr W’s] views expressed in his report were maintained in his oral evidence.  For reasons I will later explain, notwithstanding that there are components of [Dr W’s] assessments of the adults which are not fully accepted, his opinion and the preponderance of evidence will result in the father’s primary application being refused. 

    16.It follows, that orders will not be made for the children to move to the United States in April 2012 and that the parties’ agreement that the father visit the children in Australia at Easter and for the commencement of therapy will be implemented.  It is because I consider it is important that they and the therapist(s) know the manner in which the primary issue will be determined that this matter is revealed now. (my emphasis)

11. On the first occasion the mother’s current application came before me, it was explained there had been difficulties arranging a meeting between the ICL and the children for the purpose of explaining the orders.  In the event, this occurred on 6 November 2012 in relation to which an affidavit was read from Mr DD sworn 12 November 2012.  In relation to T and his reaction to the orders Mr DD records the following:

    1.[T] appeared initially quite anxious with little facial expression and quite fixed posture.  When asked about his reactions to the Orders he said “I think they’re too extensive.  I’ve discussed it with [A] (the therapist).  I think the length of time is too long.  I don’t care if Mum is there or not – I think it’s too long.  At this current time I only think I want to be in an environment in Australia.  I might think differently next Christmas (2013).”

    2.T added “After Christmas the periods are three weeks long each, that’s the entire holidays.”  [Ms EE] clarified this and explained to [T] that the Orders provided for periods of 6 and 9 days.

    …

    5.When [T] was asked if he wanted to say anything else about the Orders he said: “It’s not different to what I expected.  It seems pretty fair.  I’m fine with it.  If it is difficult we’ll have to go and have an extended lunch.”  [T] commented that he prepares himself for spending time with his father.

    6.[T] did express concern about spending overnight time with his father.  He said:  “I haven’t had an overnight for five years.  A day is a day.  If I do it; I do it.  I’d like some flexibility.”  I understood this to mean that [T] is willing to have day time contact with his father but is anxious about staying for blocks of time that would include overnight visitation.

    7.When asked to rate his satisfaction with the Orders on a ten point scale, [T] rated this to be “about five and a half or six out of ten”.  He said he understood the Orders and “think [sic] they are reasonable.”   (Report, 12 November 2012, pp 2 – 4)

12. T expressed a clear preference for orders along the lines proposed by his mother in her current application and confidence in Ms A.  He is confident Ms A will know when he is ready to see his father.  He aptly described his father’s current alternate proposal that he lives with him in the States as “… fairly ludicrous.  I have never lived with him.  It will be a bad time for him and us”.   T reiterated his willingness to spend time with his father in Australia during the forthcoming holidays and that his father respects his and his sister’s views.

13. It comes as no surprise that L maintained her stance against relocating to the States.  She had little of a positive nature to say about the time she spent with her father in April this year and commented it had been “really boring”.  She mentioned feeling “awkward” and complained that her father and T talked quite a deal which made her feel a little left out.  In answer to a question about what she would like for the December 2012 holidays, L replied “after Christmas, on 2 January or something maybe, I definitely wouldn’t want to go to America.  Maybe to make it fair for Dad he could have three days here with us.  I’d prefer to be with Mum, no overnights though”.  She said her preference for day contact was between 9.00 am and 3.00 pm and that more time would mean wasting her holidays.  Mr DD reported that L said going to “movies and maybe the Powerhouse Museum” might be worthwhile activities.  L spoke favourably about her therapist Ms CC whom she wishes to continue to see.

14. Mr DD’s evidence is afforded reasonable weight.

Application of the law to the facts

1. The law in relation to whether to make a particular parenting order is set out in my August 2012 judgment delivered in this case and does not require restatement.  However, at the outset, it is necessary to address the argument advanced by the father that the mother has not established sufficient change in circumstances to warrant a further hearing in relation to the children’s time with him.  He calls in aid the line of authority which has developed from Rice & Asplund (1999) FLC 90-725. The history of the development of the “rule in Rice & Asplund” is comprehensively set out by Warnick J in SPS & PLS (2008) FLC 93-363. Essentially, in the interests of avoiding “the enormous psychological harm” inherent in repetitive family law litigation for adults and children, as well as to avoid the public expense of subsequent hearings unless there is “sufficiency of new events” to provoke a new enquiry, the interests of the child enables early dismissal of an application. The application of the rule is to be exercised in the context of the legislative framework for determination of an application for a parenting order.

2. In relation to the mother’s application, two matters in particular necessitate that the Court considers afresh at least the implementation of Orders 3(c) and 3(d) dated 27 August 2012.  First, T’s inability to manage Terms 3 and 4 away from home.  In short, the benefits of individuation and maturation inherent in this experience have not been achieved.  Not only have those benefits not been realised, but T was psychologically and emotionally distressed by the experience.  He is now more vulnerable than was anticipated during the hearing.

3. Secondly, the children did not spend time with the father in Australia in September 2012.  Again, the momentum which was anticipated, had this happened, has not been achieved.

4. The effect of these matters is that the children’s contact with the father in the forthcoming school holidays requires further consideration.  Because their circumstances have changed slavish adherence to the, albeit recently made, orders would be inconsistent with the advancement of their best interests.  Because of the nature of the contact arrangements which follow, consideration of whether those orders should be varied in the children’s best interests should be considered again after the forthcoming holiday period.

5. The pivotal issues to the current component of the parenting applications are the children’s views about spending time with their father (including in the States), the parties’ capacity to meet the children’s emotional and psychological needs during periods with their father and the benefits to the children of steps which may enhance the quality of their relationship with him.  An allied issue concerns the effect on the children’s ability to cope when they return home if they are required to spend time with their father in the States.

6. T will be 15 years in early 2013 and L is 12½ years.  The children’s characteristics and maturity were discussed in my earlier reasons.  As was earlier indicated (in those and these reasons), both children do not want to currently spend time with their father.  However, both are able to contemplate and accept that they should do so; albeit their strong preference is that this occurs in Australia.  The children’s views against any face to face contact with their father received no support from either parent or the ICL.  In this regard, the ICL supports the mother’s proposal that the current orders are varied so that the children spend time with the father in Sydney for not less than one week between 12 December 2012 and 25 January 2013.  This would on the basis they did not spend time with him overnight; the arrangement being that this would occur between 9.00 am and 6.00 pm daily.  The mother proposed an order that if one or both of the children asks to stay overnight, “upon notification” to her they would do so.  The corollary being, if one or both of the children asks to return to the mother early, this would happen.

7. Implicit in the mother’s proposal and the ICL’s support for it, is recognition that notwithstanding the children’s ages, they lack the maturity and life experience to appreciate the significance and impact of their stance qua their father.  Even if this notion is not implicit, it is the fact.  So that it is clear, there is little doubt that the children are burdened by the very difficult family circumstance which has enveloped them for years. 

8. Both parents made mistakes in how the children’s time with the father was implemented and it is easy to understand why both children are opposed to longer periods with the father and, as a separate issue, time with him in the States.  What they both fail to appreciate is that it is possible for their parents to construct and then deliver a safe and secure environment for contact in the States enriched by interesting activities. Because of the children’s ages, these factors are important.  Previously the father spoke about how difficult it has been for him to spend time with the children in rented apartments and the like and to make their time together interesting and enriching.  His remarks resonate with L’s discussion with Mr DD.  In B Town, he and the children can engage in winter sports which the entire family enjoys.  For the children, being able to participate in activities which they manage well, is likely to materially contribute to their senses of control and enjoyment.  Skiing with the father enables them to be in his company but to also avoid the awkwardness about which both children have spoken, when conversation flags.  Of course, being active together provides a natural momentum for conversation.  In a similar vein, the father would have his family’s encouragement and support which should enhance his ability to engage with the children.  In B Town, he is able to enhance the children’s time with him by including his extended family; which would include their half siblings.  Although the children’s age differences are great the children’s younger siblings are likely to be a rich source of delight and enhance the father and subject children’s capacity to communicate.  These are weighty considerations which the children fail to appreciate and, with respect to them, the two psychologists had little or no regard.

9. In short, notwithstanding the children’s views against spending time with the father in the States, it is the Court’s view that this provides the better setting for their next face to face contact.  It also enables them to see that their desire for an element of control about contact with the father and that their voices are heard, has been acknowledged by the Court.  Acknowledgement and responsiveness to their views, however, can be achieved without every component of what they want delivered.

1. During the hearing I raised the possibility of orders for the children to spend a week or thereabouts at B Town, and not necessarily overnight.  As an alternate proposal, this was acceptable to the father.  Although it does not have the mother or ICL’s support, when the mother was asked to identify a timeframe she indicated any time from 2 January 2013 during the period when the children were otherwise required to be in the States with the father.  Again, although it was submitted there were practical difficulties in securing plane tickets and accommodation on such short notice, given that it was agreed in February 2012 she would take the children to the States this Christmas, the mother should have taken preliminary steps which she secured following the making of orders on 27 August 2012.  In any event, the mother has considerable wealth and the capacity to ensure her and the children’s arrival in B Town in time to see the father commencing 2 January 2013.  This, of course, enables the children to have Christmas at home, which is their strong preference. 

2. Ideally, the mother would arrive in the States and settle the children in B Town a few days before they would spend time with the father.  At this stage, the strength of the children’s views against time with the father overnight and the risk for both of them of heightened anxiety were they unable to return to the mother makes overnight time this holiday period contraindicated.  On the first day, the mother would probably find it difficult to face the father and his family at their condominium and it is easier for the children if the father meets them and the mother at 10.00 am at a designated point in the village.  His familiarity with B Town means he should nominate the changeover point.  From that period on, the mother shall deliver the children to the father at his condominium and he shall return them to her where they are staying.  Of necessity, the mother will be required to accommodate the children in B Town. 

3. It is inferred that the children have necessary ski wear.  It will be the mother’s responsibility to ensure that they do and, in the event they require skis or other equipment, she must tell the father in advance and it is his responsibility to provide it.  It is appropriate and designed to maximise the children’s chance to cope and enjoy time with their father, that it is staggered with the initial periods shorter than later ones.  Having regard to the season and conditions, for the first two days time should commence at 10.00 am and finish at 3.00 pm.  After two slightly longer days, the children would benefit from two relaxing days with the mother followed by three more with the father.  If during that time either child asks to spend time overnight with the father, the mother will be required to accommodate this.

4. It is accepted that orders along these lines involve a degree of anxiety for the children and the mother.  However, it is not accepted that this style of contact is likely to involve the type of distress T endured when dealing with school this year.  Or that the anxiety symptoms that Ms CC describes L experienced in April 2012 are likely to recur.  Simply put the setting is superior, L is a little older and the father will be required to confer with the therapists.  For both children, it will be important their parents communicate arrangements in advance and speak with the children’s therapists about how best to manage the situation.  In this regard, it is accepted that as T’s therapist Ms A may decide not to confer with the father.  However, it is the Court’s request that she does.  To put the issue beyond doubt, in relation to both Ms CC and Ms A, the father will be directed to contact them within a week.

5. Orders along these lines equip both parties with the capacity to meet the children’s emotional and psychological needs while they spend time with their father.  The timing enables the children to return home with a number of weeks further holiday time before school resumes.  It is accepted that because T has missed so much school this year (he is currently home schooled) he will need the opportunity to calmly prepare himself to rejoin his class.  Ultimately, in what has been a finely balanced decision, I am persuaded that the potential benefits to the children’s relationship with their father of the orders that will be made outweigh the risks and children’s views against it.  Self evidently, the mother’s proposal is not accepted as placing appropriate priority on contact in a setting which maximises the children’s ability to communicate and potentially enjoy their father’s company.

6. For these reasons, the orders identified at the beginning of this judgment are in the children’s best interests.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 November 2012.

Associate:     

Date:              23 November 2012