COGHLAN & COGHLAN (No.2)

[2018] FCCA 3854

FEDERAL CIRCUIT COURT OF AUSTRALIA

COGHLAN & COGHLAN (No.2) [2018] FCCA 3854

Catchwords:
FAMILY LAW – Parenting – temporary suspension and variation of parenting orders – family therapy.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS COGHLAN

Respondent: MR COGHLAN

File Number: SYC 4257 of 2018

Judgment of: Judge B Smith

Hearing date: 7 December 2018

Date of Last Submission: 7 December 2018

Delivered at: Sydney

Delivered on: 12 December 2018

REPRESENTATION

Solicitors for the Applicant: Pigdon Norgate Family Lawyers

Counsel for the Respondent: Ms Metherell (direct brief)

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS PENDING FURTHER ORDER

1. The father’s time with the three children is to continue but that it is to continue with all three children in Sydney.

2. The mother is to pay half the cost of the father’s travel to, accommodation in and incidental costs in Sydney.

3. The parties are to arrange and attend family therapy in Sydney.

NOTES

A.Pursuant to ss.65DA(2) and 62B 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 are set out in Annexure A and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Coghlan & Coghlan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4257 of 2018

MS COGHLAN

Applicant

And

MR COGHLAN

Respondent

REASONS FOR JUDGMENT

1. This is an oral decision noting the short form judgments provisions of the Family Law Act 1975 (Cth) in respect of interim parenting proceedings. Rather than repeat the history of this matter this judgment should be read together with the transcript of the initial application, my judgment in respect of that application and the transcript of the recent hearing before me.

2. In short compass, we have a situation where the three children of the relationship who live in Sydney with their mother and spend time with their father in Melbourne have now indicated concerns about spending time with their father. 

3. In the initial application, I noted that there was some evidence of possible alienation (whether intentional or not) of [X], who is the oldest child, by the mother, but, of course, that does not exclude the possibility that the father’s conduct is or is also making the children unhappy.

4. An Independent Children’s Lawyer was appointed, and a Child Inclusive Conference was arranged.  The Child Inclusive Conference report from Ms Condon is before the Court for consideration of what should occur. 

5. Now, I do note again that we still have an existing judgment and Orders, and that has not been set aside.  I think it is still appropriate to consider ourselves in the position of working through a process of determining whether or not it will be necessary to consider whether that judgment and orders need to be set aside and to then have a hearing.

6. Obviously, if we get to that unfortunate point, as the parties are aware, the stakes will be very high for the parties and for the children since, as I understand the respective positions, on the one hand, the mother will be saying the children’s wishes should be respected and they should not have to go to Melbourne and, on the other hand, the father will be saying that the children have been alienated by reason of [X] having first been alienated by the mother and then influencing the younger children, and his application then is that the children move to live with him in Melbourne until he can de-program them.

7. These are always extremely difficult decisions for a Court to have to make.  They are bad for the children, and they are bad for the parents.  So it seems to me the goal is to see whether or not the difficulties that have arisen can be dealt with and the existing judgment and orders complied with before we move to that very difficult process potentially in the future, and, as I understand it, all the parties agree that what we should be doing is to try and fix the current problem.

8. I will just refer briefly to Ms Condon’s report of 30 November 2018 arising out of the conference on 20 November 2018.  She notes the issues in dispute; that Ms Coghlan seeks a parenting arrangement in line with the children’s wishes, which is to say that the mother seeks that the children’s wishes are complied with and they do not have to go to Melbourne and spend time with their father.  Obviously, there is an issue as to whether those are their wishes or, in fact, what has happened is that the mother has persuaded [X] and [X] as the oldest child has led the other children. 

9. I note that under “Future Directions” Ms Condon has noted that:

   There was also some indication that [X] is choosing to not spend time with Mr Coghlan to protect her mother and to attempt to reduce Ms Coghlan’s difficulties and anxiety about the parenting arrangement.

10. On the other hand, it is said that Mr Coghlan seeks a change of residence for the children to live with him in Melbourne, and I understand that is looking forward to the position that would occur if we had a re-hearing and if the father was successful in showing that it was the mother’s actions that had alienated the children, and then he would be seeking a new set of orders; but, as I have said, we have not reached that position yet. 

11. I will not go through the entire report given that one of the counsel has to be somewhere else very shortly and since all the parties have considered it.  However, I note that it is reported that Ms Coghlan says that “[X], at times, takes charge as the big sister”, and I think there is no doubt from the material before me that what we have is a very close sibling relationship between the three girls, where [X] is the oldest child, and, again, it is suggested that she is clearly very intelligent and mature for her age.  Having said that, she is only 11, so she has the maturity of perhaps a 12 or 13 year old, so we are not dealing with someone who is very mature.  She is still a young girl, but there is no doubt that she is the person leading the children on these issues.

12. Now, Mr Coghlan said that he felt the only problem occurring with the children is at changeovers, and he believed Ms Coghlan unsettles the children before changeovers.  As I have said, I did see some evidence of alienation – a text message from the mother in particular concerned me – but often the question of alienation can be unintentional.  I will say that Ms Coghlan is to be given credit for having brought the matter to the Court of her own volition rather than just letting the matter fester or doing what the children suggested without starting this process.

13. So she is to be given credit for that, and I should say from that, it may be that some of her conduct which is potentially contributing to the issue may be an unintentional effect, and hopefully to the extent that that may be the case, she is now very aware of the need to, whatever her own personal feelings about Mr Coghlan are, at least try not to convey them even indirectly to her children so that this situation does not spiral out of control.

14. Mr Coghlan said [X] stopped spending time with him in Melbourne, and he said [X] refuses to speak with him on the phone.  She ignores his text messages etcetera, and Mr Coghlan expressed concerns that the children’s views were in line with Ms Coghlan’s agenda regarding the parenting arrangement. 

15. So, clearly, there is a relatively high conflict between the parents around this issue, and, again, both of them have a lot to lose, as do the children.  I am sure that both sets of lawyers and the Independent Children’s Lawyer are explaining to them the importance of non-direct communication and trying not to indirectly let the children know how much conflict there is.

16. I am told in the report that both [X] and [Y] have written letters to express their views to the family consultant.  I was a little bit surprised when I read that.  It may just be that [X], being mature, decided she would do it and that she led [Y] to do that, but the circumstances in which children go along to a family consultant having written their own letters raises some concerns.  Nevertheless, it is important to look at what the girls said because, however we got here, whether it is because of intentional or unintentional alienating activity by the mother or because the father is being insensitive to their needs, we have to deal with the children as they are if this situation is to be retrieved.

17. It was reported that [X] spoke about feeling significantly stressed when spending time with her father.  [X] said that her father is mean and aggressive.  She was very emotional when sharing her feelings of anxiety and stress which she claims are caused by her father being “mean, rude and aggressive towards her and not listening to her”.  [X] said that she feels that her father does not listen to her despite her telling him not to do certain things, for example, take photos of her when she has said no.  [X] said that her father speaks to her as if she is stupid and constantly challenges her about her level of knowledge, for example, saying, “how do you know that, who told you that?”

18. She also expressed concerns about what happens at changeover at the airports and commented, very intelligently given her age, “if they all cooperated we would get along much better”.  As they say, from the mouths of babes.  [X] said that she does not like or have a positive relationship with Mr Coghlan’s new partner Ms A.  She said Ms A is “mean” and gets overinvolved in arguments between her and her father, and, critically, [X] said that ideally she would like to repair her relationship with her father; however, she considers that this would be too difficult for her now.

19. It is concerning when an 11 year old with perhaps the intellectual and emotional maturity of a 12 to 13 year old convinces themselves that something is irretrievable, and I think that means that she needs to be dealt with carefully.  It is one of the reasons I did not send her to Melbourne on the last occasion, because I was concerned that if you push a child in that age group too hard against their wishes, then regardless of what is good for them, rational or sensible, then all you end up in is an emotional fight with them; and you cannot control their emotions.

20. [X], who I said also wrote a letter to the family consultant, said that she wants to talk to Mr Coghlan about the difficult experiences at her changeover.  She became emotional when saying her father will not talk to her about this.  [Y] said that her father takes her phone off them and hides it or lies about not knowing where it is.  [Y] spoke about waking up at night to have her father observing her in her bedroom which she said felt creepy, and I will just note that those are all things that [X], although I did not mention it earlier, complained of.

21. Now, maybe they are just consistent behaviours by Mr Coghlan or maybe [Y] is just taking her lead from [X] which, again, makes [X] the fulcrum of this dispute.  [Y] said she would like to have a better relationship with her father.  She said that she would like him to listen to her more.  She does not want to be forced to go to Melbourne to spend time with him.  In her view, she would enjoy time with her father if she spent less time with him.  [Y] appeared to consider the possibility of spending time with Mr Coghlan in Sydney to the exclusion of Ms A as “great”.

22. [Z], who is only seven, made some complaints.  She said Mr Coghlan squashed [X]’s broken arm.  Again, she is clearly taking some lead from [X].  [Z] said she is happy to continue to spend time with Mr Coghlan in Melbourne as long as she did not have to go by herself.  Now, I can understand a seven year old does not want to be forced to go to Melbourne without her eleven or nine year old sisters. 

23. Of great concern to me, the family consultant spoke with [X] and [Y] about spending time with their father either after the assessment or with the family consultant, and both children expressed views that they did not want to see their father that day.  [X] was particularly encouraged by the family consultant; however, she did not want to see him.  The consultant noted that [X] and [Y] present as being at risk of losing a relationship with the father in the absence of therapeutic intervention and support, and [Z] may also be at risk of losing her relationship if she refuses to spend time with Mr Coghlan without her siblings.

24. Now, these are all matters of grave concern.  As I have said, we are still in the situation where were have existing orders.  I have no doubt from the material I have seen so far that the best thing for these children will be for the prior orders to be able to complied with, for them to live with their mother and spend time with their father in Melbourne which is substantial and significant so they can have that relationship.  There is no doubt that for them to lose the relationship with their father is likely to have significant negative long term consequences on them in a variety of ways in terms, in particular, of their ability to form meaningful relationships with significant partners as they grow older.  That is something the parties should be focused on and the Court is focused on.

25. The family consultant concludes, and I think it just follows naturally, that it would seem the most appropriate course of action is for the children and the parents to immediately engage in family therapy to directly address the children’s perceived experience with Mr Coghlan and how this has affected their relationship with him.  It may serve to preserve the children’s relationship with Mr Coghlan if in the interim the children spend time with him in Sydney.  It seems possible that forcing [X] and [Y] to spend time with Mr Coghlan in Melbourne now may cause further harm to their relationship with their father.

26. Now, I will not go through all the arguments.  I had the benefit of submissions.  They are all on the transcript.  The Independent Children’s Lawyer, in effect, supports the recommendations of the family consultant. 

27. Mr Coghlan’s position is that we have the existing orders and that those orders should be complied with.  I have a deal of sympathy for Mr Coghlan’s position.  He is in a difficult situation where he is meant to be spending time with his children.  He clearly wants to spend time with his children.  His view is that the children have been manipulated into not wanting to spend time with him, and I can understand why he would be upset about what has happened, whether he is right or not about why this has occurred.

28. But looking at what is in the best interests of the children, which as it happens although it is not the Court’s major concern is I think in Mr Coghlan’s best interests, it seems to me that the consultant as an independent person is exactly on the money, as is the Independent Children’s Lawyer, and that the best chance we have to repair the relationship between the three children and Mr Coghlan is to work around [X], who is clearly the fulcrum and the leader, and to start by acknowledging her wishes and to try and rebuild the relationship over a period of time slowly, so that we can go back to, hopefully, the prior orders without all this conflict. 

29. I am persuaded that whilst I was content to send the two younger children to Melbourne by themselves previously and leave [X] in Sydney to see if that might have solved issues, it clearly has not, and so long as [X] is going to be influencing [Y], and [Z] is going to go along with them, until [X]’s concerns are addressed, this problem is likely to continue and is likely to affect and infect all three children.

30. On that basis, reluctantly, I think the appropriate course is to have, firstly, family therapy.  I think it will have to take place in Sydney.  I am going to make an order for family therapy to occur in Sydney.  I am concerned about the practicalities of this and cost.  I will come to that in a moment because there were some offers made on the mother’s behalf in respect of costs, but they were not precise.  I also am going to order that the time continue, but I am going to have to order that it continue in Sydney.

31. I have a feeling, as unhappy as Mr Coghlan may be, that if I force these children down to Melbourne and they decide to dig their heels in, it could all be over.  And if they do get to the point where they have decided that that is it, and that they are right and the Court is wrong, and that all the adults are wrong, and that no one is going to persuade them, then that could have dramatic and terrible consequences for them moving forward.

32. So I am going to order that the time continue but it continue in Sydney.  I understand that Mr Coghlan, due to financial circumstances, may not be able to use all of that time, but I hope he can use some of it.  I am going to order that – and I will have to hear the wife – but my proposal is I order that she pay half of the costs he incurs in terms of travelling to and living in and incidental costs to be in Sydney so that the parents share the burden of this change of order between them.

33. As I have said, I hope that Mr Coghlan will be able to come to Sydney because it seems to me that if the Independent Children’s Lawyer can explain to [X] and the other girls that their wishes are being listened to, that he is going to come to Sydney because he loves them and wishes to spend time with them, if they can spend some happy time in Sydney and overcome their current emotional concerns with, hopefully, the strong support of Ms Coghlan explaining to them that this is in their best interests, and that she supports this and that she does not want them to lose their relationship with their father, then hopefully, in the same way that emotions in young children can flare quickly but become quite stubborn and strong, if that can be addressed by time with in Sydney and through family therapy, hopefully we will be able to settle the situation down and then move back to time in Melbourne which will be much more practical.

34. I will make orders accordingly.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge B. Smith

Date: 21 December 2018