Cotton & Cotton

[1983] FamCA 18

[1983] FamCA 18

FAMILY LAW ACT 1975

IN THE FAMILY COURT

OF AUSTRALIA AT SYDNEY

IN THE MARRIAGE OF:

NO. S.3927 of 1981

MR C

(Husband)

and

MS C

(Wife)

BEFORE THE HONOURABLE MR. JUSTICE NYGH

ON THE 31ST DAY OF MAY 1983

JUDGMENT (EX TEMPORE)

APPEARANCES:

MR. FELLOWS MRS. MOORE

MR. FARRAGO

solicitor of Messrs. Adrian & Fellows, DX 186 Sydney, appeared for the applicant husband

of counsel, instructed by Mr. David Crapp, Solicitor, DX 883 Sydney, appeared for the respondent wife

solicitor of Messrs. Atibrey F. Crawley & Co., DX 508 Sydney, appeared for the children

This case involves a question of access to the two older children of the marriage: W, who was born in 1971, and is now 11 years of age, and X, who was born in 1974, and is now 9 years of age. The parties in this case were married in 1969, and four children were born of that marriage: they are, apart from the two children whose names I have just mentioned, twins, Y and Z, who were born in 1976. The parties separated on 17th May 1981 and the children have, since the date of separation, continued to

live with their mother. By consent, orders were made on 27^th

May 1981 in this court which provided, among other provisions,

that the children were to remain, until further order, in the joint custody of the parents with day to day care and control to the wife, and reasonable access to the husband. This order was varied by an access agreement which was negotiated between the parties under the auspices of B Organisation. The last agreement was entered into at the end Of November 1981 between the parties, whereby it was agreed that the twins should have access for two Sundays following each other from 1.30 pm to 5.30 pm and the third Sunday to remain with their mother. X was to have access twice per calendar month from 1 .30 pm to 5.30 pm, and W, once per calendar month. These arrangements for access broke down relatively soon after the agreement in relation to the two older children who became reluctant to attend on access occasions, and they have not done so since February 1982. However, the husband has continued to have access to the twins in accordance with the agreement up to the present date.

On 17th June 1982, Hogan J. made an order suspending access between the father and the two older children. However, he confirmed the existing order for reasonable access between the two younger children and the father and reserved leave to the father to seek a reinstatement of the access to the two older children as he might be advised. It is that reinstatement

thatthe husband is seeking in the present proceedings before me.

Specifically, he is seeking access to W for one hour only each third week-end from 1.30 pm to 2.30 pm on the Sunday, that is to say, the first hour of the first Sunday that he has access to the twins, and for X he is seeking access for three hours

on oneof the Sundays that he has access to the twins from 2.30 pm to 5.30 pm. As regards the twins, he is seeking an extension of access from the existing period for overnight access every two months, from 1.30 pm on the Saturday to 5.30 pm on the Sunday.

The matter of access has been dealt with quite extensively in the proceedings in the last two days. I have had the benefit of separate representation for the children as ordered by Hogan J. on 17th June 1982. Perhaps it would be appropriate to start

with a discussion of the basic principles involved. Much has been said in this case about the rights of children to have access to their parents. It was at one stage the view that a parent had a right of access to the children of which that parent could only be deprived in extraordinary circumstances. That, of course, was language which suggested that a parent had a property interest in a child and like any other chattel,

that he or she as an owner or part owner, was entitled to the use thereof. That language was abandoned well before the present Act came into force, and judges started to speak of the right of the children to access to a parent. However, although the language has changed, the meaning has remained

the same. When one reads the statement of the New South Wales Court of Appeal in Cooper vCooper (1976) 11 ALR 295, that the right of a child to access to his or her parents is a right

that should only be denied in exceptional circumstances, I do not think that the word "right" is the appropriate language

in this case. We are not here dealing with rights in the sense that we can speak of the right of a citizen to vote or the right of a creditor to recover his debt. The test which must apply in proceedings involving children is that of the welfare of the child being the paramount consideration, which is in my view the one and only principle to be applied. It

·means that in each case the court must make an independent

investigation of what the welfare of the child requires, and the court is not very much assisted by recourse to general principles other than that principle. It is true that we can fall back on generally accepted experiences and perceptions in so doing as a guide, but care should be taken not to elevate any of these generally accepted perceptions into presumptions which can only be displaced by evidence to the contrary .

One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a

meaningful relation with each of his and her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated. It is a trite observation that the parties to a marriage may divorce one another, but they can never divorce themselves from their children. In that sense, the parties remain tied to one another, at least, until those

children can stand on their own two feet which may not necessarily occur at 18 years of age or 21 years of age.

However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of

contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child - it is the emotional relationship which counts and not the inherent harmfulness of the parent

as such:  thus I can well imagine that in certain circumstances

a woman who leads a totally immoral life such as a prostitute

may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have aid, it is not a question of generalisation. One must come down to the real situation of the parties. In this case, unfortunately, an estrangement has developed between the two older children and

their father. That estrangement is strongest in the case of the eldest child, W, and it is less pronounced in the

case of X who may, to a certain extent, be following W but whether it is direct or derivative, it is nonetheless real. I have been greatly assisted in this case by the report prepared by Ms D of the counselling section and, I must say, that having tested before me both parties in the witness

box that I see no reason to disagree with the fundamental thrust of Ms D’s findings, although she has made some relatively minor factual errors in the preparation of her report which do not detract from her perception of the parties. There is in my mind very little purpose to be served by raking over the causes for the estrangement which has occurred. Suffice it to say, that for whatever reason both parents have for the last two years been in a state of considerable tension and animosity.

There has been a considerable amount of litigation between them. It is quite obvious that such a state of affairs puts the children to such a marriage in an extremely difficult position and this is particularly true of the eldest child, W, who has always been close to her mother, who has

strongly identified herself with her mother and on whom some of the burden fell when the husband quite unexpectedly, so far as the children were concerned, disappeared from the

household. She had to carry quite a bit not only of the physical. but, I imagine, also of the emotional burden.  Children will react to such a sudden bereavement in their lives with varying emotions:  they include not only the emotion of grief but also the emotion of anger: anger at the person they perceive as
being responsible for that state of affairs and that is usually, although not necessarily, the person who has absented himself
or herself from the matrimonial home. I am therefore, not
surprised in the circumstances that W in particular has developed an anger against her father: an anger which I am satisfied is not derivative or dependent or instilled by her mother but grown out of herself. It is her emotion. As I have said earlier, X’s attitude may be more derivative
than that of W as he is clearly very much dependent upon W and upon W’s attitudes and needless to say on his mother. It is my view that as long as that anger persists, no good purpose would be served by enforcing contact between the two older children and their father. I cannot help but remark that the father, in this case, has been his own worst enemy in trying to bring about any resolution of this conflict. It would not be proper for me to make any findings about the strength of Mr C’s religion or whether or not it is unusual in the community. It would appear to be what is commonly described as conservative Christianity

and these are views that are shared by a large number of persons in this community. There are a number of legitimate expressions of religious experience and it would be impossible for me to say which one was illegitimate, but I do not think that it is a necessary part of the religious views which he takes to be so self-righteous to others. I have had the

benefit of Mr C’s performance in the witness box and I

have to conclude, quite regretfully, that he has a very limited understanding of the needs of the children as seen from their points of view. In his own mind he has defined what those needs are, but he does not see those needs in the way that the children perceive them. As long as he is so egocentric about

it he is not going to improve matters one bit. It is not merely a question of not discussing financial or religious matters. It is regretful that he has seen fit to do so. He has not appreciated that children who are dependent upon their mother for their daily support feel threatened when their mother is attacked and criticised and that their only reaction to such threat is to draw closer into the laager of their mother, as it were. Nor is a reconciliation between himself and his children to come about by Mr C making statements such as I found in the birthday card which he sent this year to his son which was tendered as an exhibit in this case.

Whilst it may well have been a legitimate expression of his own feelings on his part, he should try to understand that to X it might well be seen as a threat rather than an act of
love. I wonder when reading those lines, whether Mary Magdalene was induced to follow Christ by fears of the hereafter, or by his example.

It is a difficult situation.  I would like to look in

the future and see a time when all children can have a meaningful relationship with their father but, first, the recriminations and hostility of the past must be allowed to disappear.

In my view, a reconciliation can only take place when the wife and the two elder children no longer feel themselves to be under pressure of any sort, whether it relates to matters of access, finance or otherwise.

It is true that Ms C’s approach to the matter has not always been ideal. It is, of course, very hard in all the circumstances to set up standards of ideal behaviour where parties are living under such extremely difficult

circumstances and where there is such a great deal of tension between them. I, for my part for instance, thought it

regrettable to say to a child that it is required by the court to attend on access. I would like to believe that a child goes on access because it looks forward to having contact with the rather and that it should be encouraged to do so on a positive note by the attraction of what the father has to offer. I

will not ask someone to make statements which he or she does not believe in but if the children are to come to a reconciliation with the father, they must feel and be made to feel, if at all possible, that they can do so without

being treasonable to their mother and that, obviously, requires to a certain extent if not a reconciliation between the parents,

at least a coming to terms by both of them. It applies, of course,

both ways. The children are not to feel themselves disloyal by the mother; nor are they to be made to feel disloyal by the father, by a different lifestyle, different beliefs and accusations against the mother, because that merely drives them back to reassert their loyalty to their mother by expressing hostility to the rather.

For those reasons, therefore, I will dismiss the husband's application for reinstatement of access. Whilst access to the twins at the moment is operating reasonably

well, I do detect a sense of fragility in the present arrangements.

I do not think the -time is right to order an extension of access although, no doubt, if relationships improve the parties may well come to a voluntary arrangement. As I understand the mother's position to be, if the twins would

wish to go on further extended access, she would not stand in their way, nor for that matter would she stand in the way of access by either or both of the two elder children, should they express· a desire.

I propose, therefore, to regulate the matter of access by three orders. The first order will embody the existing order, whereby the twins have access two Sundays out of three from 1 .30 pm to 5.30 pm with the possibility, with the parties reaching agreement, to an extension or variation.

The second order is, perhaps, a symbolic order in the circumstances, but it will simply direct the mother not to stand in the way of the two older children joining in access to the father should either or both of them express a desire

so to do. That, as I understand it, is no more than expressing the willingness that the mother has expressed, but signals

that in a proper way.

The third order I propose to make is: I order that the question of access to the four children be supervised

by the counselling section or this court until 31st December 1984.

I want to explain quite carefully what I mean by this order. As the Act stands this is, in the circumstances, the only way I can make this particular order to assist the parties. Supervision does not mean what it appears to mean. That is, the counselling section is not to act in a probationary capacity.  What it means in this case is that the counselling section is available to advise the parties and the children in the future.

I want to make it quite clear that it is my view that there should not for the foreseeable future at least, be any further counselling sessions with the children. This is in line with my general view that pressure ought to be taken off, and a reconciliation can only come once the pressure is taken off. What I have in mind is in the foreseeable future Ms

D or some other person with the counselling section whom

the Director may a assign would be available to act as a consultant to the parents. If, and only if after a reasonable interval the marriage counsellor takes a view that a further step ought to be taken, the parties should clearly take his or her advice. I want to make it clear in this judgment, a copy of which will be made available to the counselling section, that for at

least 6 months, if not longer, the children should be left at peace, and indeed, should only be contacted by the counselling section when this can be done without risk to the children's emotions. Having said that, I will make the necessary orders.

1.That the husband have access to the children, Y and Z, the two younger children of the marriage, on two following Sundays in each cycle of 3 week from 1.30 pm to 5.30 pm and on such other times as the parties may mutually agree.

2.That the mother do nothing to prevent W and X the two older children or the marriage, or each of them, to accompany the above children on any occasion of access should he or she express a desire to do so.

3.I request the counselling section of this registry to supervise the access of the abovenamed children until 31st December 1984.

1. That each party have liberty to apply on giving 7 days notice.

1. I direct the return of the exhibits produced in these proceedings to the party producing same on an undertaking that he or she return the same to the custody or the court should an appeal be lodged within one month hereof.

1. I make no order for costs.

1. certify that this and the 11 preceding pages are a true copy of the reasons for judgment of His Honour Mr. Justice Nygh.

Secretary: