Currie and Wilkins (No 2)

[2018] FamCA 757

FAMILY COURT OF AUSTRALIA

CURRIE & WILKINS (NO. 2) [2018] FamCA 757

FAMILY LAW – CHILDREN – Parenting – where the parties have been litigating over their four children for almost a decade.  Where the children (two groups of twins) are now 16½ and 14½ years and have spoken clearly about wanting the litigation to stop – where the children are aligned with their mother – where therapy attempts have been unsuccessful – whilst father insists that orders should still be made – where it would not be proper to make orders because of their wishes- where it would not be in their best interests to make the orders sought by the father but in their interests to cease contact orders as pursued by the mother.

Family Law Act 1975 (Cth)

APPLICANT: Ms Currie

RESPONDENT: Mr Wilkins

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 44 of 2013

DATE DELIVERED: 25 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 September2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Mr Connell

SOLICITOR FOR THE RESPONDENT: Ian Robertson Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Allen

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

Orders

1. That all extant parenting orders are discharged.

2. That the mother have sole parental responsibility for the children C, D, E and B.

3. That the children live with the mother.

4. That the father be restrained from attending the children’s school or their extra-curricular activities unless there is agreement between the parties.

5. For the purposes of s 121 of the Family Law Act 1975 (Cth), the mother be at liberty to provide a copy of these orders to any school at which the children attend.

6. That all extant proceedings are otherwise dismissed.

7. That the Independent Children’s Lawyer is discharged from the proceedings.

8. 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.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Currie & Wilkins (No.2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 44  of 2013

Ms Currie

Applicant

And

Mr Wilkins

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The primary issue in this proceeding is whether any parenting orders could be workable.  For the reasons set out below, any attempt to implement orders would be futile and consequently, they could not be in the best interests of the children involved; indeed, I consider any orders would be counterproductive if not an abuse of the children.

2. Mr Wilkins (“the father”) and Ms Currie (“the mother”) have been litigating about their children for almost a decade; each has a different view about who is responsible for the children adopting the position that they do not want a relationship with their father.  Despite unequivocal statements by the children, it would be fair to say that the father does not accept that that position justifies a rejection of his proposal. 

3. On the limited testing of the voluminous evidence (or what purported to be evidence) it is impossible to make a finding that one parent alone has created this outcome but on any view, the father has to take the major responsibility.

4. The father says there has been over 400 contraventions of court orders by the mother.  The court record does not support.  It shows something quite different.

5. The father’s impassioned view is that the court has failed to enforce its orders.  The mother says the father’s aggressive conduct has pushed the children away and that they are of an age where they are able to make the collective decision which I accept is the only conclusion open on the evidence.

6. For some years, the mother has been criticised by professionals for discouraging the children from having any relationship with their father.  From the father’s perspective, she has deliberately destroyed his relationship.  The evidence does not support his position.

7. The long history of litigation itself is telling but what stands out is that the children have had enough of their parents’ dispute.  It is time therefore to give effect to their views and wishes even if the father says that the children are not mature enough to have adopted those views.  I reject his argument.

8. C and D are 16½ years of age.  E and B are 14½ years.  In his affidavit filed in July 2018, the father described the children as 14 and 12 years of age but that was obviously an oversight.  All four children are close to each other and protective of each other’s interests.  When interviewed, they adopted the same stance albeit that D showed some interest in a future relationship with his father but even then, only on his conditions.

9. The father has possession of many hours of surreptitiously recorded video footage of the children which he says supports the conclusion that they enjoy his company (and that of his extended family) and that this evidence flies in the face of specific complaints about him made by the children to the social scientists.  I accept that their position has now been consistent for at least the last two years.  It is unfortunate that this dispute has had to be litigated because it has created stress for the children whose underlying wish is for it to stop.  The continuation of the litigation particularly by the father, exacerbates the poor (if not non-existent) relationship between he and the mother.  As an indication, while the parents have communicated occasionally electronically about contact arrangements (and at times bluntly so), they have not spoken to each other for ten years.  I have no doubt the children have been (and are) caught in the middle of this sad parental relationship and want themselves excluded.  As they are 16½ and 14½ years of age respectively, it is time to respect their wishes to be taken out of the battle.

Some background

1. Any description of what has occurred over 10 years could not adequately explain how things have arrived at this point.  My focus will be on limited issues as best I can determine them from the evidence provided by the parties and the submissions by their respective counsel.

2. The father is 50 years old.  The mother is 47 years old.  The four children are their only offspring.  The parties married in 1997 and separated in 2001 although there was then a reconciliation in January 2002.  Two months later, C and D were born.  In the first year of their lives, the father was stopped by police apparently for something to do with driving without a licence.  The mother and the children were in the car and the father clashed with the police, ran off, was capsicum-sprayed and ultimately charged by the police.  The convictions of the Magistrates’ Court were for resisting arrest.

3. Arising from that example from long ago, the father’s view, when counsel for the Independent Children’s Lawyer asserted that he was an aggressive man, was that the 2002 convictions were not indicative of aggression.  I disagree.

4. Soon after those convictions, and in 2004, the father obtained a job in Western Australia on a 12 month contract and he returned to Victoria fortnightly.  At that time, the two younger children were born so by 2004, the wife had four children under three years of age in her care.  The father’s contractual obligations obviously made life difficult for everyone.

5. In 2009, the marriage broke down completely.  The father said that it was a consequence of the mother’s infidelity but even if correct, there were problems in the relationship.  To the extent that the father had a role in the children’s lives in May 2009, his unchallenged evidence is that he had sporadic time available to him for the children because of his work commitments and he spent as much time with them as he could.

6. Even a cursory reading of the affidavit material of the parties, but particularly the father, shows that things did not settle down after the first tranche of court proceedings began in 2009.  In the Family Court of Western Australia, there were orders made to indicate the parents’ respective parenting obligations but by August 2010, there were contravention proceedings.  These were heard by Crooks J.  Despite the father’s mantra that there have be innumerable contraventions over the years, the court record shows that in August 2010, both parties consented to the father’s contravention application being “dismissed”.  In that same consent order, the father’s time with the children was to be “supervised” at the start of a period of time leading up to unsupervised time some weeks later.  A fair inference therefore is that whatever the father asserted the mother did to breach court orders, the parties compromised their complaints.

7. In January 2011, a contravention application was again filed by the father.  It seemed to remain extant until December 2012 when it, along with a raft of parenting disputes and two other contraventions, was adjourned by Moncrieff J to the Federal Magistrates Court in Melbourne.

8. In March 2013, before Burchardt FM (as his Honour then was) all matters were set down for hearing.  That hearing was to be on 10 October 2013.  It will be self-evident that by that date, the contraventions were more than two years old.  Even in October 2013, matters plodded on as the hearing was adjourned until April 2014. 

9. On 29 April 2014, final orders were made by consent of both parties supported by the Independent Children’s Lawyer.  Those orders become important because the father seeks a return to them (or as close thereto as practicable) but also because he says that Judge Burchardt was their architect.  The father says that his Honour spent six hours on the hearing day “discussing” various arrangements with the parties and their lawyers.  The father’s counsel, Mr Connell, submitted that it was well-known that his Honour could be forceful.  I am unsure how to interpret that assertion but in any event, all parties consented to the orders and they were intended to be final.

10. Relevantly, the April 2014 orders show the following:

    2.That subject to Order 15, the parties have equal shared parental responsibility for the children [D] and [C] born … 2002, [E] and [B] born … 2004 with the Mother to obtain the Father's consent regarding long term parenting decisions,  such consent not to be unreasonably withheld.

    …

    4.That the Husband spend time with the children as follows:

    (a)on alternate weekends from 4.30pm Friday until 5.00pm Sunday;

    (b)subject to the Husband's employment requirements, on each alternate Wednesday from after school until 7.30pm;

    (c)subject to Orders 13 and 14, that the time pursuant to Order 4(a) be extended from the conclusion of school Friday to the commencement of school Monday, but in any event no earlier than 14 November 2014.

    5.The Husband will facilitate the children's attendance at their current sporting activities during the time they are scheduled to spend with him, noting that their current extracurricular activities are as follows:

    (a)Swimming on Mondays for [D] and swimming for all 4 children on Thursdays;

    (b)[Exercises] on Tuesdays plus competitions as scheduled from time to time;

    (c)Surf Lifesaving on Sunday mornings plus competitions as scheduled from time to time from November to March; and

    (d)Team sailing for [D] at [J Town] Sailing club, plus competitions as scheduled by the club from time to time.

    6.That neither party enrol the children into any additional extra-curricular activities during the other parent's time without first obtaining their written consent, taking into account the children's wishes.

    …

    13.That the Father enrol and complete an anger management course and provide a certificate of completion to the Mother and ICL.

    …

    15.That the parties continue to attend reportable child inclusive family therapy with [Mr W] of [Z Group].

    …

    25.Without admission, and subject to these Orders, each party be restrained by injunction from:

    (a)Communicating or attempting to communicate by whatever means with each other except in matters  involving the children;

    (b)Entering or remaining on any premises where either party lives or works or within 50 metres of such premises;

    (c)Denigrating the other party when communicating with each other or within the hearing of the children; and

    (d)Causing or allowing any other person to engage in conduct of the type referred to in sub-paragraphs (a) to (d).

    26.That all applications be otherwise dismissed.

11. It will therefore be seen that the contravention allegations to which I have earlier referred were compromised.

12. In 2010 in Western Australia, there had been an interim family violence order.  That order did not last long and was eventually withdrawn.  It is the father’s case that he has not been violent towards the mother.  He observed there were no details provided by the mother about attendances on any psychologist, social worker or mental health professional in regard to family violence.  I have inferred by that that he wanted the court to accept that nothing corroborated the fact that there had been any family violence.  Sadly, the objective evidence indicates otherwise. 

13. Even if the father’s assertion could be said to have some foundation, one must wonder why Order [13] of the April 2014 orders was agreed to by the father.

14. Insofar as family violence is an issue in the present proceedings, the father’s affidavit about that reads as follows:

    [59]In summary, (the mother’s) versions of our relationship is (sic) full of lies and continues to be embellished to the point of being wilful.

    I reject that assertion.

15. Despite [13] of the 2014 orders, there is an argument about the extent of the family violence.  That inference arises from concessions made by the mother and indeed observations of the Supreme Court judge to which I refer in a moment.  Most importantly, the focus of the present proceeding must be on the period after April 2014 because regardless of what had happened prior to that, the parties compromised their positions and asked the court to make final orders whether pressured by the trial judge or not.

16. To the extent that the father maintains he has not committed family violence or been aggressive generally, the court is entitled to take into account evidence of matters outside of the immediate family.  A significant portion of the evidence was taken up with a problem that the father has had with a woman with whom he was in a relationship for 18 months (Ms Y) who appears to have also been his legal representative or advocate at some stage.  Counsel for the Independent Children’s Lawyer asserted that the father was generally angry and aggressive and I accept that the evidence supports such an assertion.

17. Leaving aside statements made by the children to social scientists about the father’s aggression, the following matters do not sit comfortably with the father’s assertion of non-aggression. 

18. The father tendered in evidence a transcript of his own bail application before a judge in the Supreme Court of Victoria in November 2015 when he was in custody having been refused bail by a Magistrates’ Court arising out of violent incidents involving Ms Y.  The details of what occurred between the father and Ms Y are largely shrouded in mystery.

19. The filing of this transcript by the father was presumably for a purpose but the document shows the father was charged by police.  Before the judge, there was debate as to whether or not a reverse onus of entitlement to bail applied.  Doing the best I can, it seems the transcript (and the cross-examination of the mother by the father’s counsel) was tendered to show she colluded with this Ms Y to stop him having contact with the four children.  I reject counsel’s assertion as to collusion because the evidence does not support it.  The father’s arrest, had little, if anything, to do with the mother.  That said, it is submitted by the Independent Children’s Lawyer that it is evidence of the propensity of the father to turn angry quickly.  It was submitted by counsel for the mother that the father’s secrecy about these charges was indicative of his lack of respect for her and the children by indicating that the offences (and/or the criminal proceeding) had little to do with them; that is, they had no right to know about them.  Indeed, it is his view that it had nothing to do with this court.  I agree with counsel for the mother and counsel for the Independent Children’s Lawyer that issues of violence arising out of another relationship are relevant when questions of the best interests of children are considered.

20. In the transcript tendered by the father (and tendered again by counsel for the mother), the judge, in engaging with the father’s solicitor, said as follows:

    HIS HONOUR:         He denies the harassment, he denies sending the emails, including the material that was sent to the employer and so on.

    MR TAIT:Not those, your Honour.

    HIS HONOUR:         Pretty nasty stuff, that.

    MR TAIT:It is, your Honour.

    HIS HONOUR:         It is pretty close to blackmail if it is not actually blackmail.

    MR TAIT:It is very close.

    HIS HONOUR:         Unwarranted demand with menaces and he carried it through.

    MR TAIT:It is pretty ugly.  Having said, though, your Honour…

    HIS HONOUR:         His animosity towards the complainant is patent, isn’t it?

    MR TAIT:      Yes, his ill-will is patent in those actions absolutely.  The harassment I am talking about is the allegations that there are some 150 phone calls on a two day period, 60 phone calls on another period.

21. As I indicated to counsel during the hearing, I accept this is simply discussion between bench and bar but Mr Tait referred to in the transcript must be seen to be acting on instructions.  Bearing in mind that the father produced this transcript, albeit for another purpose, I accept that whatever ultimately comes of those charges, an experienced judge of the Supreme Court of Victoria was concerned about them and the father’s own solicitor described them as “ugly”.

22. A little further in the transcript, the judge and the solicitor had the following conversation:

    HIS HONOUR:         You know, people break up in relationships all the time and often it is acrimonious, you know, there are arts and so on arise out of it but what he chose to do was truly very nasty – tried to cost this woman her job, destroy her reputation in the face of others.  Why?  Because he’s spurned in some way – that’s pretty unhealthy.

    MR TAIT:      Yes, your Honour.  I have asked my client about any psychological history because that is a natural question that would follow behaviour like that.

23. A little further in the same conversation Mr Tait said:

    MR TAIT:      He accepts, your Honour, that this behaviour is more than troubling, very worrying to a court and the community at large and I discussed with him whether he would be willing to undergo any further counselling treatment in that respect. 

    So my client’s attitude, your Honour is he understands that what he did, however much of that is ultimately proven, but what he did is he shouldn’t have done.  What he did was outside the scope of what the community accepts, and there are going to be penalties to pay.

1. The last quotes in the transcript, again tendered by the father, must be seen as an acknowledgment that he is an aggressive man and quick to anger.

2. The transcript did not end there.  Mr Tait submitted to the judge that there had been a hiatus of two months not to mention the month in custody as a result of which things had settled down.  However, the judge then remarked:

   HIS HONOUR:         Yes but although after that he managed to abuse the bail justice in a pretty offensive way and so on…

   MR TAIT:      It would appear that his emotions run deeper than he’s good for, your Honour.

3. When that last point was put to the father in cross-examination as indicative of his aggression, he denied that he had behaved in front of the bail justice in that way and observed that on the particular day in the bail application before the judge, he had not had adequate time to speak to his solicitor.  The transcript would suggest otherwise.

4. I have not drawn conclusions about the facts of the particular incident which is the subject of the transcript as there was no finding of fact made by the judge.  However, in circumstances where the father’s argument is that there has been no history of violence, it is important to note that the judge made reference to “prior convictions” including “stalking” and prior convictions interstate.  Little of that information was before this court and the father was reluctant to tell the court about the charges that are pending.  The father (and his counsel) relied upon his right of silence because these charges relating to Mr Y from 2015 are remarkably still pending 3½ years later.  Although the father made no reference to the details, he conceded that there were forty six charges pending.  He has been committed to stand trial in the County Court of Victoria.  For whatever reason, these matters were not to be dealt with in the Magistrates’ Court.  The judge remarked in the discussion that the charges were serious and if found guilty, the father would be facing imprisonment. 

5. The significance of the outcome of that proceeding may have been lost on the father in the context of the present proceeding but there are two matters of significance to this parenting case that flow from it.  First, the children may very well be distressed to know about the precise details if indeed the father’s dismissal of the seriousness is incorrect as the judge seemed to say.  Secondly, if he is wrong about an acquittal, any contact by him with the children would have to be reviewed (depending upon any sentence) if he is incarcerated.  None of that has been factored into the father’s proposed orders which were put to the court in final address by his counsel. 

6. The father acknowledged that there had been discussions between his lawyers and the Crown over his charges but no satisfactory resolution could be reached.  Those pending proceedings are troubling therefore in the sense that they indicate a lack of concern for the children by putting any relationship of continuity at risk even if the court could make orders.  The father’s approach also shows a lack of respect for the mother by refusing to tell her anything about them.  She had sought details under subpoenae and the father objected to their release.  There is relevance and importance in that material for the reasons I have just set out.

7. The father’s approach to the mother was described by his own counsel as one arising out of frustration.  However, nothing justifies his abuse of her even if he was frustrated by his perception of what she was doing in relation to the children or indeed, the lack of court response to his needs.  The following evidence of the mother was unchallenged.  On 11 July 2017, in the midst of a dispute about text messages between C and the mother, the father sent the following message to the mother:

   I’m going to subpoena your phone also – you’re a cunt of a woman for what you are teaching the kids!! The phone data was awesome.

   So game on at trial.  I can’t wait to tear your fat arse apart.

   This was the frustration to which the father’s counsel referred.  I do not accept there is any justification for the father’s conduct.

8. The father’s frustration extends to the fact that he said he would publish court documents on the internet.  In being challenged about that, he first said that the children were entitled to know about the court processes and, by implication, their mother’s conduct.  Leaving aside the children already apparently being well aware of the dispute between their parents, one must rhetorically ask why their friends and the rest of the electronic world need to know about these things potentially to their embarrassment. 

9. All of these matters establish the difficulty that the father has in controlling his anger and that it is observed, and/or well known, by the children.  They have spoken as such to the social scientists.

10. Suffice to say, the mother was not the only person the target of the father’s ire.  There was a hearing before Macmillan J on 1 August 2017.  The father was unsuccessful in prosecuting the mother for contravening orders.  This, I understand, gives rise to his view that the court does nothing about the mother’s conduct.  His frustration however can be seen to have boiled over that day when he left the court during the proceedings.  Her Honour made the following observations in her reasons for judgment:

    9.The father eventually left the Court but not before muttering words to the effect that I could “stick it up my arse”. In my view, this goes well beyond “borderline rude” and is not appropriate behaviour in a Court. What is of significant concern is that the father behaved this way in circumstances where one would expect him to have contained his behaviour raising the question of what his behaviour may be like where there are no such constraints. It is clear from the emails and texts that are in evidence before me that he treats the mother, her solicitor and the Independent Children’s Lawyer with similar abuse and contempt.

    Her Honour observed that his reactions were out of all proportion to the circumstances.  That arose because her Honour indicated to the father that she was satisfied that the mother had reasonable grounds for contravening the 2014 orders. 

11. I find there is every reason to accept that the father is not just a frustrated man but an angry one.  Sadly, these children are acutely aware of that anger.  When I turn to the expert’s unchallenged evidence below, it will be apparent that I accept the statements made by the children were not just their views (by reference to

    
    

    s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”)) but also their strongly held wishes for the proceedings to come to an end.

12. Apropos the views of the children, one might normally conclude that final orders would bring an end to parenting litigation.  The elapse of time here has shown otherwise.  However, and disconcertingly, the father’s evidence is that:

    [599]I have no doubt that should my relationship be re-established with the children, that further allegations, of an even nastier mind will be brought before the court.  Which will lead to the same outcome – another contravention, followed by an extended period where the children would be satisfied by their mother that I am a bad person, and that they don’t need to see bad people.  Confirmed by the courts “you’re safe from your father again.”.  

13. Insofar as it is a critical issue whether the children are mature enough to have their views given weight, the father said as follows:

    [600]And my children’s letters do not demonstrate any maturity in their decision-making process when they suggest they no longer wish to see me.  I have a daughter that remonstrates with violence towards her elderly grandmother, I have a son that questions what should happen to him if he were to kill his father – by throwing him over the balcony of the 11^th floor apartment where they live with him, or by stabbing him.  And I have a daughter who has an eating disorder, whose origins are unknown at this point.  Rather than maturity, one can only describe their maturity as and (sic) understanding of what is in their best interest as dogmatic, one that can only be explained by a loyalty to their mother.

14. The bleak picture painted by the father, if he honestly believes it, flies in the face of the proposal that he put to the court through his counsel at the conclusion of the proceedings.  When I examine the expert’s evidence, it is clear that the expert (Ms F) disagrees with the assertion in the first sentence of the father’s paragraph [600] above.  Insofar as the father asserts that he has a daughter who has an “eating disorder”, B’s medical practitioner Dr L provided an affidavit and was not required for cross-examination.  He confirmed that B had a form of eating disorder but his evidence paints a bleak picture.  He said:

    [B’s] recovery is slow but tangible consistent with such a serious medical condition at a young age.  As you can see her weight slowly is recovering and remaining stable.  Clinically her mood is more stable recently and she appears more engaged in self-management of her condition.

15. Although Dr L was not allocated the responsibility of a single expert, he recommended in respect of treatment that B “be given the unconditional choice as to whether she have contact with her father in the future”.  To the extent that the father might be seen to have been excluded from consideration about B’s treatment, Dr L said:

    I received a tirade of 18 emails over a period of four days from 20-24 July 2017 and I have not received any emails since that date.

16. The father’s view about the seriousness of B’s treatment and her disorder became clearer when his counsel cross-examined the mother.  Notwithstanding Dr L’s evidence, it was sad that cross-examination was the place for the father to learn about “[B’s] condition”.  The mother confirmed that B was “stable but not cured”.  He then inquired about treatment and it seems from the evidence of the mother that B currently attends fortnightly treatment at the H Clinic.  Whilst it might be said that there was no other way for the father to find out about B’s health, it is odd that Dr L complained about a “tirade” of emails and yet nothing further was inquired about B until cross-examination of the mother.  All of that is indicative of the father’s attitude towards the parenting of B (s 60CC(3)(i)).  He was excluded from the lives of the children by the orders made by Macmillan J on 1 August 2017, but he was entitled to information about the children by virtue of the orders of 29 April 2014.  It appears that he did not seek it from the mother.

The post-2014 allegations of breaches of orders

1. In the father’s case outline prepared for this final hearing, he defined the dispute about a number of matters.  He pointed to the court as having failed to protect the children’s right to grow up knowing both parents “including having a substantial and meaningful relationship with the father” and then said that the mother had repeatedly not complied with orders of the court.  Insofar as his criticism was directed at the court, apart from enforcement, he said there had been “no consistency of care for this case, by allowing single expert after single expert to oversee this matter.”

2. Having regard to the issues defined above, it is helpful to look at the sequence of events in the proceedings subsequent to the final orders made on 29 April 2014 to examine whether the mother was non-compliant and indeed the court complicit in her behaviour if so found to have occurred as alleged by the father.

3. After the orders of 29 April 2014, it was not long before there were further proceedings.  However, the application that was first filed by anyone was on 22 December 2014 by the mother.  She alleged contravention against the father.  Her accusation was overholding of the children by the father.  The accusations went back to July 2014 so that was only weeks after the final orders had been made by consent.

4. On 18 March 2015, and with both parties represented by counsel, the matter proceeded.  On the court file there is a transcript of the proceedings and it is noted that the father made denials of breaches.  Although the order is not entirely clear, the ruling of the court appears to be that the allegations were not proved and were therefore dismissed.  The conclusion of that hearing then triggered an application for variation of the parenting orders which was listed for 10 April 2015.  On that date, the court record shows that all extant applications were dismissed and the Independent Children’s Lawyer was discharged.

5. On 22 October 2015, the father filed a contravention application against the mother.  It was listed on 14 December 2015 in the Federal Circuit Court.  It alleged that time under the orders with the children had been withheld from him on 9 October 2015 in addition to which, in respect of B’s admission to hospital, he had not been notified.  Days later, the father filed a further contravention application alleging that he had again been refused time with the children. 

6. Notwithstanding that she did not have to, at court on 14 December 2015 before Judge Wilson, the mother filed a response (notwithstanding there was no application in a case before the court) seeking to dismiss the contravention application on the basis that she had a “reasonable excuse” for contravening the orders; she also sought to vary the 2014 orders. 

7. The order that she sought was that time with the father be “as agreed between the mother and the father”.  That was an absurd proposition to put before the court having regard to the fact that by 2015, the parties had not spoken to each other for a number of years and were in heated conflict.  It was most unlikely that there was ever going to be agreement between them.  She also sought that there be an order that the father provide to her details of the charges that had been brought before him to which I have earlier referred. 

8. Judge Wilson adjourned the proceedings to 28 April 2016 and for reasons that remain obscure, ordered that the previous orders “remain in full force and effect”.  Once an order is made, it remains until discharged.  I presume that what his Honour was saying was that he was not conceding that the wife’s application to change the orders had any merit.

9. On 21 December 2015, the husband filed a further contravention application alleging that despite the “interim order” of Judge Wilson on 14 December 2015, the wife had not complied.

10. A hearing took place on 28 April 2016 but the orders reflect that the parties were to attend upon a family consultant for the purposes of an assessment relating to how the children were viewing the dispute.  When the matter came on for hearing on 5 July 2016 “for mention” before Judge Wilson, the contravention applications filed by the father on 22 October, 26 October and 21 December 2015 were all marked as “dismissed” by consent.  His Honour gave reasons for the orders other than those that were made by consent.  Despite that, in his reasons, his Honour said that the three contravention applications “are yet to be heard and determined by the Court”.  The court file would suggest otherwise but after his Honour gave the ex tempore reasons for judgment, he then ordered the mother to “forthwith reinstate her compliance” with the April 2014 orders.  Replicating an extant order does nothing.

11. The record shows that the applications then extant relating to contraventions were dismissed.  The conflict between the ex tempore reasons and the order is evident but it is the orders that give effect to the law rather than the reasoning. 

12. The mother appealed against the orders of 5 July 2016.  A cursory examination of her Notice of Appeal indicates that it was misconceived.  In any event, at the procedural hearing before Strickland J on 29 August 2016, the appeal was dismissed.  Counsel for the mother explained that on the basis that they were about to get a final hearing before Judge Wilson.

13. On 24 August 2016, Judge Wilson heard argument (albeit not evidence) and adjourned all extant applications to 26 October 2016 “for mention”.  His Honour then made a further order that the mother comply with the April 2014 orders.  I repeat, replicating a requirement to comply with orders does nothing.  However, his Honour then said that if the mother did not comply with that order, she:

    May be dealt with for contempt at the next adjourned date.

14. That was perhaps unfortunate, or infelicitous, use of language in an order for reasons which ought be self-evident.  Prosecution of a contempt faces a very high bar.  More importantly, it is unclear whether this was some form of warning to the mother or an indication that if the non-compliance by the mother continued, his Honour might be hearing a different application on the next occasion.  As it turns out, these contempt applications were later heard and failed.

15. On 26 October 2016, the parties were back again before Judge Wilson where the proceedings were transferred to this court and his Honour noted the reason for transfer was:

    (a)The parties indicated to the court that the case is likely to take no less than three days for a trial;

    (b)Up to six witnesses are likely to be called;

    (c)His Honour Judge Wilson’s docket cannot accommodate a trial at that estimated duration prior to late-2017; and

    (d)The parties’ interests are best served if they can be heard at trial by the Family Court of Australia prior to a date in late 2017.

16. On 9 January 2017, the father filed a contempt application as Judge Wilson had seemed to foreshadow.  That application was listed for hearing in this court on 7 March 2017 before Johns J.  Her Honour struck out the contempt application of the father and gave reasons.  From those reasons the following may be extracted.  Her Honour said:

    20.On any view, there is a dispute between the parties as to the appropriateness or otherwise of the mother deciding not to provide B for time during the December-January period. However, I’m equally satisfied that those matters as I have set out do not support an Application-Contempt. Section 112AP of the Family Law Act Cth (1975) sets out what a contempt is within the Family Law Act Cth (1975). 

    21.Section 112AP(1) provides as follows.

    Subject to subsection (1A), this section applies to a contempt of a court that: 

    (a)does not constitute a contravention of an order under this Act; or

    (b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court. 

    (1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.

    22.Hence in circumstances where it is alleged that there is a breach of a court order as in this case, it is necessary that such breach involve a flagrant challenge to the authority of the Court.  In circumstances where the mother offers an excuse, and I make no findings in relation as to whether or not it was a reasonable excuse, but she proffers an excuse and provides a medical certificate, and further where it is conceded that the three other children, were in fact provided for time with their father in compliance with the orders of the court, I am satisfied that such behaviour could not found an application in contempt. 

    23.An Application-Contempt is distinct from a contravention application.  In order to establish a contempt, I need be satisfied that there has been a deliberate defiance of a court order, as distinct from a breach of a court order.  There is no evidence before me that would enable me to be satisfied of such defiance with respect to the circumstances as alleged by the father between December, January 2017. 

17. The father then filed contravention applications.  Despite what the rules of court say about listing contravention applications within 14 days, these were listed on 1 August 2017.  I readily accept that delay was inappropriate.  In the meantime, a variety of applications were filed including further contravention applications throughout July 2017.  All of these were the matters that came before Macmillan J on 1 August 2017.  I have already made mention of this particular hearing but it will be apparent from the orders that all of the applications of the father were dismissed. 

1. Macmillan J gave reasons for those applications being dismissed.  Each one was dismissed on the basis that the mother had established that she had a reasonable excuse.  Those findings presumably led to the father leaving the court in frustration.  The significance however must lie in the fact that, rightly or wrongly, the court(s) over the period from 2011 onwards had listed the various grievances of the parties about compliance with orders and had heard them when requested and otherwise, dismissed them when the parties asked the court to do so.  I readily accept that the father feels aggrieved by the fact that the court(s) have not, in his view, enforced the orders but that argument must fail when one contemplates the litigious history to which I have just referred.  To the extent that the father believes that the court misinterpreted the law, he had remedies.  He did not take those remedies.  To the extent that he argues that the law was wrong, he has political remedies to seek to have the parliament change what has now stood for over 12 years.  For example, parliament could remove the “reasonable excuse” defence; it has not done so.

2. In my view, there is no foundation for the assertion in the father’s outline of case.

What factual issues gave rise to the non-compliance with court orders where non-compliance was excused as being reasonable?

1. When the proceedings began before me, I raised with each of the parties’ counsel how they wanted to approach the various issues in circumstances where final orders were made in respect of the contravention applications on 1 August 2017 arising out of findings of fact made by Macmillan J.  The father’s view, as expressed by his counsel, was that I was not bound by those findings.  I disagree.  The hearing took place in 2017 and the evidence was tested.  It cannot be asserted that there was a defiance of the court order if after a testing of the evidence, a discretion is exercised by the judge accepting that the excuse of a non-compliance was reasonable.  However, in this case, because of the nature of the father’s proposal to effectively change the orders so that the children were to live with him, all parties wanted to litigate some of those facts as relevant to the question of whether or not the father’s relationship with the children was being thwarted by the mother such that the only way he would have a relationship with the children in the future was for them to live with him.  Despite my reservations about the fact that it was a tenuous argument, the parties decided to proceed on the affidavit material that they had presented.  All of that material, on both sides, trawled through what had occurred in the period after the 2014 orders.

2. In his affidavit [278-280] the father alleged that the ability of the children to develop a meaningful relationship with he and his family was subject to interference by the mother whom he said “extensively” debriefed the children after each visit, wrote detailed notes and used those as the basis of complaints to contravene court orders.  Much of the father’s evidence went back years but it is only necessary for me to deal with the incidents that I think are relevant subsequent to the 2014 orders.

3. One such incident was when B was admitted to hospital on a Tuesday in September 2015 but the father was not told about it until the Thursday.  He said he did not consider that appropriate.  I agree.  However, he referred to the fact that B ate at his house but was a very slow eater.  He said that when admitted to hospital, B was severely dehydrated and the tests had suggested kidney failure.  He said she was diagnosed with an eating disorder.  Having regard to what I earlier referred to in the evidence of Dr L, I consider that description by the father as an understatement.

4. The father went on to say [381] that he had seen B laughing and joking with her maternal grandparents but that when he and his family came in, the child barely spoke to them.  He said that he acknowledged that she was sick but that she had not been encouraged to have a positive or consistent relationship with he and his family.  He described his criticism in a text message he sent to the mother out of frustration.  What he wrote was:

   Maybe [B] can show some respect when she has visitors.

   That was hardly a helpful comment.

5. B has an illness as indicated by Dr L.  In an affidavit filed by the mother in August 2016, she told the court (as relayed by the father in his trial affidavit in these proceedings) that a psychiatrist named Dr X had apparently indicated that B’s underlying anxieties were in relation to her father.  The father said that those words did not surprise him because the mother had not been serious about obtaining support for B.  Had she been, in his view, she would have been providing all the information to health care professionals.  Accordingly, he thought he was entitled to say that he did not have faith in the psychiatrist as looking out for the best interests of B.  Having regard to the observations of Dr L, it is hard to conclude that the father has been cooperative in trying to find a solution to what has been described as a serious problem for B.

6. Further in 2016, the father received a letter from the children via an email from the mother.  He described the general context of this as being that none of the children wished to see him.  He said that it was evident “by the children’s own admissions” that the mother involved them in a manner inconsistent with the requirements that parents do what is best and promote a positive relationship with both parents.  He had contact with children after that period of time and in his affidavit, he pondered why the children had said what they had.  He told the court that a Professor AA had found that the mother was incapable of restraining herself from involving the children in “her unreasonable and baseless anxieties”.

7. I am unaware of what that last statement means because the evidence of Professor AA was not before the court but to the extent that the children had been involved by their mother in parental issues, or had been discouraged from having time with their father and developing a relationship with him, the mother should be criticized.  The difficulty for the court in the present case is that the ages of the children are now such that they have entrenched views which have been consistent over time including repeating the types of allegations about their father that were made in 2016 in the letter to which the father refers.  Thus, to the extent that the mother has orchestrated this campaign of destruction of any relationship between the children and their father, it matters little now because there is little the court can do to change that situation. 

8. Mr Connell of counsel for the father put to the mother that the father would not harm the children.  She rejected that.  It was put to her that he had never physically harmed her or the children and she agreed with that but added “until last year”.  It was put to her that she had set up activities without consulting the father to thwart his time and relationship with the children.  Specifically, it was put to her that the father ought to have the right to do what he wished with the children when he had responsibility for them.  Whilst the mother agreed with that concept, when one examines the orders of 2014, it can be seen that the parties had agreed that there were certain obligations of an extra-curricular nature that the father had to complete.  When it was put to the mother by the father’s counsel that he had complied with all those activities she rejected that and said that he took them to a few until 2015 and then stopped.

9. There was then cross-examination of the mother in which it was put to her that it was advantageous for the children to have a relationship and spend time with their father but the mother’s mantra was that she would do whatever the children wanted done including delivering them to him if that is what they wanted.

10. I am very conscious that it is the answer to the question rather than the question itself which forms the evidence upon which the court must rely and those answers should be accepted if they are plausible.  The father made many assertions in his long affidavit including, for example, the allegation about the constant contravention which I reject for the reasons I have already set out. 

11. Contrary to the father’s assertion that the children are not mature enough to be making the decisions they are, based upon the evidence of psychologist Ms F, which was not challenged, I find that it matters little here whether the mother does or does not encourage them to have a relationship with their father.  Common sense indicates that there comes a point in the lives of teenage children when they reject the urgings of their parents.  The children here are mature enough and Ms F has indicated there is no point in any further attempt at therapy.  I find in the circumstances that Ms F sees the children as having sufficiently strong views that ought to be given weight.

12. I readily acknowledge that the father does not accept Ms F’s views.  That is evident from his counsel’s final address but as I observed at the time, when the case began, no party, and in particular the father, required Ms F for cross-examination.  In my view, Mr Connell was inappropriate in saying that Ms F’s report was “useless”.  He also said that in respect to further therapy, Ms F should never have given up.  Having regard to the ages of these children and the consistency and persistency with which they made the statements they did, those submissions have no merit.  Mr Connell submitted that Ms F seems to have “dropped the ball” an analogy under which I was being invited to accept that she had not done her job professionally.  The lack of challenge to the evidence means that that submission was inappropriate and offensive to the witness.  Mr Connell also noted that Ms F had made some contribution to a book about the history of the Family Court which had nothing to do with her competence nor her evidence.  That observation or throw-away line was a collateral attack to indicate some form of bias and I reject it.  It was inappropriate to say such things when the witness was not given an opportunity to be heard and the father chose not to call her.  Unchallenged evidence does not mean that the court is obliged to accept it but it should do so if the expert is appropriately qualified, the facts underpinning the opinion are set out and the opinion is otherwise plausible.  No challenge was made to Ms F’s expertise nor was there a dispute from the father that the children were saying the things that they were as reported to Ms F.  Those unchallenged facts must mean that the opinion of Ms F that therapy was no longer appropriate was not only plausible but in this case, well-founded.

The sailing incident

1. An event which took up a lot of focus for both parties and highlights the inability of the parties to communicate whilst corroborating what the children say, and debunking the father’s assertion that the mother has thwarted his relationship, concerns D’s interest in sailing.

2. D was chosen in a school team to compete in weekend championships.  The mother told the father about it because it was to clash with his time under the 2014 orders.  The father’s rejection of any alteration to the orders was blunt but he also declined to discuss the issue with D.  The unchallenged evidence of the mother is that D said he was going sailing and not going to his father.  The mother delivered the three girls at the appropriate time but took D to the sailing on the Saturday morning and then delivered him afterwards to the father.  

3. The father’s evidence was silent on the question of how he reacted when D returned on that Saturday afternoon.  One might have seen some indication of conversation between father and son about whether he had been successful.  The silence was glaring.

4. Counsel for the mother put to the father that he could have attended to watch the sailing.  The father dismissed that on the basis that it was not an activity which enabled him to engage and in any event, he had the other children.  For a parent wanting a relationship with his son, that was odd.  However, the father’s own evidence at [441] provides an answer.  His evidence was:

   At various hearings over the years, I have been told by the presiding judge that I do not have to be a taxi service for my visits.  It has also been acknowledged that the driving that is expected to be performed by myself from (the mother) is onerous and does not serve the children’s relationship with me.  It now seems that (the mother) will make any reason to excuse herself from having to do that commuting.

5. In the reasons for judgment of Macmillan J in August 2017, her Honour dealt with the sailing incident.  She set out the email of the mother prior to the weekend.  That email included statements such as:

   [D’s] selection in the team is very important to him as he has worked very hard to be selected.  If he doesn’t attend, [D’s] crew mate will be without a partner and will not be able to participate either.  D has told me that he really wants to attend not only for himself, but so that he doesn’t let his team down…

   If you like, I could even talk to the school to see if they will allow you to take [D] to the [Q] Club directly and he can meet the team there.

   As I said, this is important for [D].  Let me know what you would like to do.

6. The father’s response as set out at [55] of the judgment of Macmillan J said:

   Just as important is his relationship with me – something you fail to understand and encourage.  At this stage of our relationship I am hesitant at putting it second.

   I am sure that in time [D] will come to understand my decision to prioritise our relationship at this point in time.

   Therefore, I will not be making changes to the arrangements this weekend.  The orders of 29 April 2014 stand.

7. Macmillan J said:

   [60]Not only did the father not participate, but as a result of his refusal to do so the mother was required to drive from [J Town] to the [Q] Club and then to [Suburb K] in order to deliver [D] to the father’s home after the competition. I am satisfied on the balance of probabilities, based upon the evidence before me that, as observed by [Ms F], the mother “has clearly understood that she has to facilitate the spending time with arrangement” and that on this occasion, the mother went out of her way to both accommodate [D’s] needs and also facilitate his time with the father.

   [61]The father’s case ignores the fact that [D] is 15 years of age and is able to express his views and perhaps even more importantly, does not address how the mother might force a child of his age to go with the father against his wishes. It also highlights the observation made by [Ms F] that the father demonstrates minimal insight into his own behaviour and how that might impact upon his relationship with the children. In my view, this Application for Contravention is another example of what [Ms F] described as the father’s “need to be validated and his view being accepted and believed” and his “sense of entitlement and a sense of right as to how he wants the children to accept his authority and behaviour.” 

   [62]On this basis, I am satisfied that the mother had a reasonable excuse for not delivering [D] to the father’s home until after the competition and the father’s second Application for Contravention filed 19 April 2017  not only having been abandoned  by the father, has no merit.

8. The accusation that the mother was endeavouring to thwart the relationship was rejected because of the offers made to involve the father in the sailing expeditions. Having regard to the father’s responses as to why he could not have at least gone to watch, it is hard to see how he can justify an assertion as he did, that he was endeavouring to prioritise his relationship over his son’s interests and that D would come to understand that decision. The objective and unchallenged evidence of Ms F about D’s view of his father, makes it clear that D does not see any importance in the relationship and that is very sad. This incident is not the only one involving that sort of behaviour as a parent. A comprehensive examination of the judgment of Macmillan J can be found at [2017] FamCA 624. Her Honour’s findings of fact all rejected the suggestion that the mother thwarted the relationship. The evidence in the present proceedings supports that conclusion.

9. Counsel for the Independent Children’s Lawyer cross-examined the mother about a specific text communication with C where C was unhappy about what was happening in her father’s home during a contact period.  In cross-examination, the mother conceded that she had not been positive to encourage C to make the relationship work.  She conceded that was a mistake.  However, her evidence in this proceeding was that she told the children “again and again that they would have a fun time”.  I am satisfied there has come a point in time where the children are no longer easily persuaded and have formed their own views about the nature of the relationship they want to have with their father.  The incident involving D is a good example of where the father has failed D rather than the mother having thwarted his relationship. 

10. Whilst concern was expressed after 2014 about the mother not encouraging the children’s relationship with their father, I accept having regard to his disrespectful language towards the her, the children are now at an age where there is little likelihood that the mother’s words would have any impact;  the children are not interested in a relationship.  The children are sufficiently mature now to see through any such façade so criticism of the mother is no longer determinative of this case.

The proposals of the parties

1. The mother and the Independent Children’s Lawyer both commenced the proceeding seeking that the 2014 orders be discharged, that the mother have sole responsibility for the children and that the father be restrained from:

   (a)Publishing, disseminating, uploading or releasing electronically or otherwise any video footage of the children recorded by the father during the children’s time with him since August 2016 or any document relating to these proceedings;

   (b)Attending the children’s school unless otherwise agreed between the parties in writing;

   (c)Attending the children’s extra-curricular activities unless otherwise agreed between the parties in writing; or

   (d)Attending the mother’s home.

2. The Independent Children’s Lawyer’s counsel indicated support for the mother’s view that she should have sole parental responsibility and the father, no contact.

3. The father’s initial position was that the 2014 orders be “reinstated” or in the alternative, if the mother breached the orders, then the 2014 orders be discharged, that he have sole parental responsibility and that they live with him until such time as therapy had taken place and until “the next court appearance” to be determined by the court.  In addition, he had sought an order that the mother be restrained from spending time with the children “until such a time that a court appointed family expert determines”.  He also sought other orders not relevant to the immediate dispute. 

4. At the conclusion of the case, Mr Connell on behalf of the father produced a set of proposed final orders.  They moved away from the position just described and it is important to set out the details.  He sought:

   1.All previous orders be discharged;

   2.That the mother and father have equal shared parental responsibility for the children…;

   3.That the children live with the mother;

   4.The father spend time with the children on alternate weekends:

   a.With [E] and [B] from 3.00pm Friday to 8.00pm Sunday; and

   b.With [C] and [D] from 3.00pm Friday until 8.00pm Friday;

   5.The mother must positively encourage and facilitate the children to have contact and spend time with the father pursuant to these orders;

   6.The father will facilitate the children’s attendance at their current sporting activities when those activities are competitions, during the time they are scheduled to spend with him;

   7.That neither party enrol the children into any extra-curricular activities during the other parent’s time without first obtaining their written consent taking into account the children’s wishes.

1. In addition to the orders just set out, the father proposed he have contact during school holidays, Christmas Day and Father’s Day and how handovers should take place.  A number of ancillary orders were then sought about communications all of which were to be electronic.

2. In addition to the orders set out, the father sought an order that:

   Without admission, and subject to these orders, each party be restrained by injunction from:

   (a)Communicating or attempting to communicate by whatever means with each except in matters involving the children;

   (b)Entering or remaining on any premises where either party lives or works or within 50 metres of such premises;

   (c)Denigrating the other party when communicating with each other or within the hearing of the children; and

   (d)Causing or allowing any other person to engage in conduct of the type referred to in sub-paragraphs (a) to (c).

3. Counsel for the father also sought a notation be added to the proposed orders in the following terms:

   If it is determined by this Court at some future time, that the mother did not make all reasonable efforts to positively encourage and facilitate the children to have contact and spend time with the father, pursuant to Order 5, then the mother may be dealt with for contempt.

4. The notation has a resemblance to that of the order from 2016 to which I earlier referred.  Whilst the court from time to time does add notations, they are not part of the order which in reality, is an exercise of power.  The notation is therefore meaningless in the context of the orders proposed.  What I understand the notation to mean here is that the father says that if he does not accept that the mother has encouraged and facilitated the children to have contact with him, she would face his application that she be dealt with for contempt.  I refer back to the remarks of Johns J in relation to contempt proceedings.  It is a high bar.  The legislature distinguished contempt from contravention and that distinction has been examined in various authorities.

5. It will therefore be seen that the respective positions are in essence that the father have no contact or that he have alternate weekends with the children (albeit with varied times).  Proposed Order 5 is an unnecessary order because it is a statutory requirement.  In the context of those proposals, it is important to contemplate the expert evidence which, as I have already described, was unchallenged.  Both parties relied upon a child-inclusive conference memorandum from 2016 prepared by Family Consultant G.  It was the subject of comment throughout the hearing.  No party suggested that Ms G was wrong in her opinions.

Ms G

1. Ms G provided a report and was a witness who was not required for cross-examination.  I earlier mention the father’s reference to psychiatrist Professor AA.  Ms G read the report of Professor AA and noted that he assessed that neither parent showed evidence of a psychiatric issue.  The mother had identified no physical violence from the father but claimed to be fearful of anger-related language.  Professor AA, Ms G noted, thought the father’s presentation was at variance with the impression in interview with what had been seen in police reports.  Ms G noted that Professor AA suggested that the father’s difficulties arose because he felt his position was correct and was unable to work with authority displaying poor impulse control especially about his frustrations.  She quoted Professor AA as saying that the father’s inconsistent, unpredictable, unexplained behaviour must affect the emotional lives of the children.  In his trial affidavit, the father annexed a copy of Professor AA’s report from July 2010.  The father made no reference to the concerns expressed by the expert upon whom he was relying.

Ms G and her discussions with the children

1. Importantly for the purposes of the immediate issue for my determination, Ms G noted that C, then aged 14 years, said that there was a dispute between her parents which they could not sort out.  Her solution was not to see her father.  The inference I have drawn is not so much that C did not want to see her father but rather, she wanted the proceedings between her parents to stop.  It is sad when a child aged 14 proffers a solution like that potentially prejudicing her own relationship with her father to stop the war between her parents.  That said, C told Ms G that her father was not very nice, yelled at them and she was scared of him.  She noted that her father had “bad anger issues”.  She was able to describe to Ms G that she was attending a psychologist about her issues.  These “issues” were her concern that she was like her father.  Interestingly, it was her mother whom she described as the victim of her violent behaviour.  The father does not accept this child’s statement some two years later that she does not want to have a relationship with him.  Curiously, C told Ms G that since she stopped seeing her father she did not have anger issues any longer and she did not hate her mother anymore.  The father’s position is that the mother has manipulated that view but that ignores what C was saying. 

2. D, C’s twin presented as a young man who was “rational” about his father and distressed about his experiences with his father.  He was able to report positive times and concerningly, observed that there were anger issues but they went away.  This was a reference to his father’s capacity to explode in anger.  He too described his father as scary.  In my view that is not the most significant issue.  D said:

   I struggle with the difference between my parents.

3. Consistent with the view of C, the only inference open from what D told Ms G in 2016 is that he wanted an end to the fight.  Since that report was concluded, the fight has gone on.  In 2018, that view needs to be contrasted with how the children have more recently described their views to Ms F.

4. E was interviewed by Ms G at the age of 12 years.  She was described by the family consultant as the more robust of her siblings but, like her siblings, reported her father as angry.  E said her father had scrolled through messages she had sent to her mother and had remonstrated with them about their differing views towards their parents.  Like the filming of the children, gathering evidence through their texts with the other parent and then criticising them, must be seen as pushing them away.  E’s remarks do not support the father’s conclusion that the mother has manipulated this situation.  The remarks show a different view to her siblings but one in which she differentiates between her parents and is not enthused about what the father is demanding of her in terms of a relationship. 

5. Ms G reported that E said that she would never be able to talk to her father about what she wanted or how she felt because he would yell at her.  The father’s hours of video recording were said to debunk that sort of argument and his position is that he has never done anything of the nature described by the children.  He had the G report which told him how the children viewed him yet examining their texts and criticising them was not something he saw as anything more than an example that the children were being manipulated by the mother.  I reject that inference.

6. When B spoke to Ms G, she presented as timid and apprehensive.  She expressed the view that she was concerned as to whether or not her father would be supportive of her needs having regard to her health situation.  Like her siblings, she said she did not feel safe and she was scared.  Any viewing of hours of video taping showing the children as happy and enjoying themselves would not necessarily mean that the children were not being truthful when they said that they were scared of their father. 

7. These children were very conscious of the fight that had been going on between their father and their mother and they wanted it to stop.  C’s view about opting out of the contact arrangements as a way of ending the war between her parents was quite concerning.  Ms G saw the children with their parents and noted there was physical affection between father and children and they became more at ease as time passed.  What Ms G noted was that assertions about the father’s “self-absorption and general insensitivity to the needs of others” was displayed.  This, according to Ms G, indicated that there were times when there was great affection and the children had pleasant times with him.  She noted however that despite that, the children were apprehensive about the emergence of the father that they did not want to have a relationship with.  Her warning to the father was that he needed to develop a relationship of trust with the children. 

8. Reflecting on the D-sailing incident, the husband has failed to take into account what Ms G said.  In respect of the sailing incident, the father directly involved D in the argument making it clear that a relationship with him was more important than D enjoying the extra-curricular activity.  D was embroiled in the dispute between his parents in circumstances where the mother was trying to explain how important the sailing issue was to D.  It is any wonder then that D was reluctant to indicate anything positive about the nature of his relationship with the father when speaking to Ms G.

9. Ms G told the court in 2016 that this was a complex and multi-factorial problem in which neither parent had addressed the underlying issue for the children.  In her view, each parent contributed to the children’s difficulties.  There is much to be said for that and there may have been a glimmer of hope to resolve the problems in 2016 by the subsequent plan for intense involvement of therapy.  That leads me the evidence of Ms F.

Ms F

1. Ms F is a child and family psychologist whose evidence was referred to by all parties and although I have already mentioned the inappropriate comment of counsel for the father about her, it is more important to analyse her evidence.  In her affidavit sworn 9 August 2018, Ms F said that after August 2016, she had a number of therapeutic sessions and had given four summaries.  Importantly, she said:

   It is my view that reportable therapeutic intervention has run its course.

2. In October 2016 Ms F reported a variety of sessions in July, August and September.  Notably, she said the children indicated they were less interested in spending time with their father and still saw him as oppositional to their needs and requests.  They referred to a lack of attachment to their father, and animosity towards him, whilst having an underlying fear of his dismissive attitude as they experienced it.  She noted that they were becoming stronger in verbalising their rejection.  It is timely to remember that they were 14 years and 16 years of age respectively.  Ms F said that no attempt by her to ameliorate their feelings and for her to support joint sessions with their father, was successful.  She was not complimentary of the reaction of the father.  She said he presented no solution

   other than an expectation that the children should be forced to see him or live with him in the alternative as (the mother) was gatekeeping and allegedly alienating the children from him.

3. The children had views expressed to Ms F that were different from each other but all were consistent with what Ms G described in 2016.

4. The current position of the children is that they do not want to be involved in further contact orders.  Only months after Macmillan J suspended the contact orders, Ms F had a session with the children in which she noted their relaxed nature.  She said the children had had time to settle and focus on their immediate lives.  It is not so much that the children do not want a relationship with their father but rather that they want to opt out of any system which involves them being forced to participate in a relationship which they presently find not satisfying.  It is not satisfying here because of the conflict between their parents.  They have aligned themselves with their mother who is the person most responsible for their daily care and they see their father as not particularly interested in them.  The evidence supports the view that, as a last resort, what was tried in 2016 to turn that view around, has failed. 

5. Most importantly coming out of the expert’s report is that these children know what they want and articulate it knowing that it would be reported back to their parents.  They have not criticised their mother but have their father.  At their ages, and with the consistency of their individual views as those expressed to both Ms G and of Ms F, I have no hesitation in finding that they are mature enough to be making the decisions that they have.  There is no suggestion in the evidence of Ms F that these children are being manipulated by their mother nor that they are unreasonable in holding the views they do.  Accordingly, their views must be given significant weight.  Their wishes is a different thing.

The legal issues

1. In this case there was no argument about the approach that the court is obliged to follow arising out of Part VII of the Act.

2. Section 64B provides the sorts of things that a parenting order may deal with.  Apart from the specifics of with whom the child is to live and spend time, the court is entitled to make orders with respect to any aspect of the care, welfare or development of the child.  That is a matter to contemplate in relation to the question of whether it is emotionally disadvantageous to a child to continue forcing them to do something which they are opposed to, well into their teenage years.

3. Section 65D provides that in proceedings for a parenting order, the court may, subject to s 61DA (to which I shall turn) and various parenting plans (which cannot apply here) the court may make such parenting order as it thinks proper.  In my view that is a very significant provision because it directs the court to contemplate the appropriateness, in the context of the children’s experience, of forcing them to continue to participate in the lives of their parents. 

4. Section 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration.  The use of the word “paramount” must mean that there are other considerations than those of the interests of the child but on any view, the best interests of the child must take precedence.  The court is therefore entitled, if not obliged, to take into account the views of parents who want to participate in their children’s lives such as here.  However if there is a clash of ideologies, the court’s subjective judgment as to what is in the best interests of a child, must prevail.

5. In deciding what is in the best interests of a child, the court must consider the matters set out in s 60CC of the Act. All counsel agreed that the court had a mandatory obligation to consider those matters. I propose to do that in a moment.

6. Before embarking on that best interests consideration, the court is obliged to start with s 61DA which provides that when making a parenting order, it must apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility.  In this case, that order was made in 2014 and I stress again, by consent of the parties.  To have an order for equal shared parental responsibility must mean (because of s 65DAC) that where the parents had that responsibility and there is an exercise of responsibility in making a decision about a major long term issue in relation to the children, the order is taken to require the decision to be made jointly by those parents.  The section goes on to say that the order requires the parties to consult one another about the issue and make a genuine effort to come to a joint decision. 

7. The reference in the Act to parental responsibility is a reference to all of the duties, powers, responsibilities and authority which, by law, parents have in relation to their children (s 61B). But equal shared parental responsibility orders relate only to major long term issues. The definition of that concept is found in s 4 of the Act and makes reference to the issues about the care, welfare and development of a child of a long term nature. The section provides some examples of that including education, religious and cultural upbringing, health and the child’s name but it is otherwise unrestricted. That is, any issue about long term welfare or development is a matter that falls within that category.

8. In this case, B’s health would be one that fell into that category.  As such, s 65DAC requires the parties to reach agreement about how that health issue is determined.  Both parents have failed to deal with that issue responsibly.  I have no doubt that the mother has adopted the approach of just sorting the issues out and protecting B and her health but she has not involved the father in any way.  However, in case it is thought that the criticism is only levelled at the mother, the father does not accept the seriousness of the health issue and is critical of the various health professionals involved.  The very fact that a treating medical practitioner complains about being sent so many emails, is indicative that the child’s health may be put at risk by the parties endeavouring to sort out something between themselves.  Most importantly however, the parties’ communication has been so limited to electronic means, that the fact that they have not spoken to each other for nearly ten years, is indicative of the fact that they cannot reach agreement about most matters and I therefore accept that the mother has simply gone about doing what was needed for the sake of B.

9. As I earlier observed, welfare and development is a multi-faceted issue.  It must include encouraging children to participate in activities at which they are good or show aptitude.  If there is a particular issue associated with their education that too must be encouraged so that they can feel good about themselves.  I am particularly troubled about the sailing issue for D.  The father’s attitude was perplexing because he saw his relationship with D as more important than D’s development with his peers and his own interests.  More importantly, the parents could not reach agreement about how that issue was to be resolved with the father being dogmatic, leaving D to resolve the problem himself by defying his father and not attending the Friday night handover.  The father’s stance ignored D’s need to be part of a team with all of the ramifications that come with that.  As counsel for the mother put to the father, D might have liked his father to have been present so that he could revel in the success that D felt was important.  His father rejected that proposition in a rather flippant way.

10. There are many issues that are likely to fall into care, welfare and development of children that affect their long term welfare.  I am satisfied there is no prospect that the parties could resolve any issue.  That is not unusual in many dysfunctional families but in circumstances where a child’s health or education is at risk, the court must intervene and give one parent the responsibility for all of those matters.  When D steps in and takes on the responsibility for himself knowing that his father would be unhappy about it, it says volumes for the level of his maturity knowing that defiance is likely to cause problems not so much for himself but rather his mother. 

11. Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.  The two examples of B and D may be extrapolated across other issues associated with the other children.  However, it would be trite to divide the children into various camps particularly having regard to their ages.  In my view it would not be in the best interests of the children for their parents to have equal shared parental responsibility in this case because it would only either prejudice health (as in the case of B) or force a child (such as D) to take matters into their own hands knowing that it would exacerbate litigation for their mother.  In those circumstances the presumption in this case is rebutted.

1. The rebuttal of the presumption however does not mean that the court should ignore the question of both parents sharing in parental responsibility issues.  The fundamental principle is that there must be some benefit to the child in the parents making whatever decision is necessary.  Section 65DAC gives a guide to what is needed for any decision, let alone major long term issues.  In this case there is no prospect that any agreement would be reached by co-operation between the parents.  As the children are aligned with the mother upon whom they rely most heavily, and she has provided for their needs on a daily basis, in my view, she should have sole parental responsibility for all decisions associated with the children.  The 2014 order has failed.

2. Turning back then to the determination of what is in the best interests of the children, s 60CC requires the court to consider both the primary considerations (s 60CC(2)) and the additional considerations (s 60CC(3)).

3. Section 60CC(2) requires the court to consider the benefit of a child having a meaningful relationship with both parents. The evidence of Ms G is that the children benefited from having the relationship with their mother and she has fulfilled the physical and emotional tasks. There is no meaningful relationship with the father. Looking at the respective proposals of the parties, how could the children benefit from an order which might give rise to them gaining that meaningful relationship in the future? The answer to this dilemma lies in the evidence of Ms F. Whilst counsel for the father was highly critical of Ms F’s approach (the “dropping of the ball” analogy) I have no doubt that she is correct. She made clear in her report to the court and about which she was not challenged, that she had tried to encourage a resumption of the therapy unsuccessfully. That is not “dropping the ball” but making a professional decision that it would not be appropriate to continue to press the children when they have spoken collectively. Counsel for the father described the report as “useless”. I emphatically reject that proposition.

4. Having seen the report of Ms G in 2016 that this was some form of last resort to ensure the protection of the relationship between the father and the children through therapy and noting Ms F’s view that it has failed, the court must look at the proposals of the parties to see whether a proposal could create a benefit for the children which is currently lacking.  The father’s position was that the children should spend alternate weekends with him along with holidays.  He proposed that he would agree to facilitate their various extra-curricular activities during his time.  It is sad to say that this is too little too late but I cannot see any way that the children would be attracted to such a proposition.  The father’s absence from the lives of the children, according to Ms F, lifted a burden from their shoulders.  The stopping of the contact to a large degree exacerbated the litigation and the father has made clear that if things do not go the way he desires, he would continue litigation.  That is exactly what the children do not want.  His proposal that they be forced to participate in alternate weekend activities is flawed having regard to the unchallenged evidence of Ms F.

5. In my view, the court can do little to create the benefit for these children of a meaningful relationship with their father.  D has shown an interest in having a relationship with his father but he immediately imposed conditions.  He is of an age where he should be able to talk to his father in a mature (almost adult-like) way.  My interpretation and inference from what D said was that he was not prepared to do that without some change being made by his father.  It may be that the father has to work out a way of encouraging the children to adopt a different view about him which is not threatening to their mother.  In my view, it is that latter point which is fundamental to these children, and the father’s threat of ongoing litigation, which is potentially likely with the sort of orders he proposes, would simply push the children further away and make them more defiant as they get older. 

6. Section 60CC(2) also requires, as a primary consideration, for the court to consider the need to protect the children from psychological harm in being subjected to, or exposed to, abuse, neglect or family violence. These children have been exposed to family violence. Section 4AB defines family violence as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the persons’ family or causes the family member to be fearful. The provision goes on to set out some examples. One of those examples is repeated derogatory taunts. Again, the list is not exhaustive.

7. The examples of the father in his electronic messaging to the mother was threatening.  His taunting of the mother that he would bring back litigation, whether he felt frustrated or not when he wrote it, was inappropriate.  He has endeavoured to control the mother and experts have reported her to be fearful.  The children have told the experts of their fear and although the father points to his video-taping, the experts maintain that the statements are still being made by the children.  In the circumstances, there is a need to protect the children from the psychological harm that arises from that sort of behaviour.  They are well aware that it has been happening and that their mother is embroiled in it.  They are aware that they were the objects of the court orders arising from the constant litigation that has gone on.  It is time to stop that.

8. In respect of the additional considerations to which I have referred, the first relates to any views expressed by the children and any factors that the court thinks are relevant to the weight it should give to the children’s views. Much was said about the level of maturity of the children but the Act also provides a guide by the use of the words “or level of understanding” which is a reference to the very nature of the proceedings. These children well know what has been going on in their parents’ lives and they want it to stop. Their views are consistent. Their level of maturity in my view is not in question but even if it was, their level of understanding is very clear.

9. The court is obliged to look at the nature of the relationship of the children with each of the parents. The children are attached to their mother and had at best, an ambivalent relationship with their father. That ambivalence has now led to resistance. Again, in determining best interests, the factors in s 60CC(2) and (3) have to be measured against the proposals of the parties. C told Ms G of her own conflict with the mother. That has now ceased. Nothing in the evidence enables me to make a finding that C has been manipulated by her mother. C understands that she is dependent upon her mother and does not have a relationship with her father from which she can benefit at the moment.

10. The father made clear about the rudeness of the children towards members of his family.  When Ms F undertook her final analysis with the parties in December 2017, she spoke to the extended family.  She described them as all contributing to the negative scenario put by the father.  Ms F said the session with the paternal grandfather and his wife was a positive one.  She said that the grandfather was reflective, positive and he demonstrated a comprehension of his son’s escalating behaviour and anger.  He was also critical and dismayed at his son’s behaviour and showed capacity and compassion for the children.  The same was not said by Ms F of the grandfather’s wife.  It may be in the future that any bridge between the grandfather and the grandchildren could be mended by him making clear to the children that he does not adopt the position of his own son. 

11. There is no application before the court by the grandparents but under s 60CC(3)(b), the court is entitled to take into account the nature of the relationship of the children with other persons such as grandparents. At the moment, no such relationship exists but the sympathy and compassion expressed by the grandfather to Ms F may lead to an amelioration of the position of the children and an interest by them in the extended family if some approach was ultimately made.

12. The provisions of s 60CC(3)(c), (e), (h) and (l) are of little assistance in this particular case and I do not intend to deal with them further. However, one issue relates to the question of the likely effect of changes in the child’s circumstances including that of separation from either of the parents. Although the mother was criticised for not taking a positive attitude to C’s plight in text messaging when the child was with her father, what C was doing was indicating she was not comfortable being in her father’s presence for whatever reason. To force the children to spend time with their father as he proposes, must be seen now to have negative consequences for the children emotionally.

13. Another consideration relates to parental obligations to maintain children.  The mother observes that the father is substantially in arrears in child support.  Why that is so was not said but equally nothing was said by the father as to how he proposed to support the children financially through these teenage years.  He is a project manager responsible for as many as 1000 people in the workforce.  He is a man of qualifications yet provides no support.  The onus was on him to explain that and he did not.

14. The court is also obliged to consider the capacity of each of the parents to provide for the needs of the children including emotional and intellectual needs.  The father has not provided for the emotional needs of the children as is evident by their consistent position.  Again, using the proposals of the father and the mother as the benchmark, nothing in his proposals would alleviate that problem.  To remove any contact orders would provide emotional assistance for the children if for no other reason than that they would see an end to the litigation involving their mother.

15. Section 60CC(3)(i) requires the court to look at the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. Whilst both parents have been criticised, in my view, the more recent evidence indicates that things have settled down for the children. Having regard to some of the comments that I have made as set out above, I find the mother far more child-focused than the father simply by her demonstrated behaviour. The father needs to change that so that he becomes an attractive proposition for the children. His attitude particularly in relation to the incidents associated with D and B, are not consistent with responsible parenting.

16. Family violence is an issue of importance.  It permeates so many relationships and directs how parties endeavour to resolve matters.  It is multi-faceted and insidious.  The father’s behaviour in the way he spoke to the mother was said by her to create fear.  In cross-examination of her by counsel for the father, she was asked whether he had ever harmed her and she said that he had not until last year.  That was a reference to physical harm but the ongoing abuse is, as I have described the definition of family violence above, is indicative of the father’s attitude towards the mother.  Family violence is an integral part of why the children want the litigation to stop.  They do not feel comfortable about their mother being embroiled in that litigation.  The father’s offensive text messages contribute to that problem.

17. Section 60CC(3)(m) entitles the court to take into account any other fact or circumstances the court considers relevant. In my view this is where the question of the wishes of the children (as distinct from their views) becomes an important factor in deciding what is in their best interest. The wishes of the children are for the litigation to stop and the only way they can see that happening is if they have no contact with their father. That is a very sad indictment on the parental relationship but this is a case where s 65D is critically important. Even if the court could see some way of ensuring that what the father proposed could be implemented, I have no doubt that it flies in the face of the wishes of the children and accordingly, any such order could not be proper having regard to their ages and their level of understanding of what has been going on.

18. Accordingly, I find it would not be in the best interests of the children to make the orders that the father sought. 

19. On the basis of the findings above, I find that the only solution for the court is to adopt the position promoted by the mother and the Independent Children’s Lawyer.

The submissions

1. Having regard to what I have said above, it is unnecessary for me to make reference to the submission put by the parties other than peripherally.  Counsel for the mother in strident terms pointed the finger of blame at the father for focussing on everything being the mother’s fault without any reflection on his own contribution.  There is substance to that submission. 

2. Counsel for the Independent Children’s Lawyer distanced himself from the specifics to submit that the Independent Children’s Lawyer relied on the children’s wishes who, he said, had expressed concern about the father’s behaviour from as far back as the early reports.  Prophetically, he said that the children “had had enough”.  In my view, there is substance in that submission. 

3. Counsel for the father submitted that his client did not want a “barren judgment”; he just wanted something out of the proceedings so that he could have a relationship with the children as he did not simply want to be out of their lives and walk away.  The flaw in that submission is that this is about the best interests of the children not the father.  I cannot make a relationship of any substance, let alone a meaningful relationship, between the father and the children if he continues to push the children away. 

4. The lack of any order which seemed to be the nub of the submission of concern by counsel for the father has to fall on the father’s shoulders. The myriad of reports have been a warning that he needed to change his attitude to his own children and even though he maintained that the mother, the experts and the court had done nothing about enhancing or protecting any relationship, the submissions that were put on his behalf ignored some fundamental principles. Those principles can be seen in s 60B of the Act. Throughout these proceedings I have contemplated those provisions constantly and measured the evidence and submissions of the parties against those objectives and principles.

5. I find in the circumstances that the position put by the father in the context of the evidence had little merit and simply reinforced the concerns of the expert that a continuation of the push by the father to have a sort of relationship he wants with his children is emotionally damaging for them because of the position he adopted. The court in these circumstances is not able to achieve the objects set out in s 60B and the only solution is to decline to make the orders sought by the father to give the children the respite that they seem to so desperately want.

The final orders

1. The final orders sought by the mother included that she have liberty to provide a copy of the orders to schools and therapists. To the extent that there is any uncertainty about her entitlement to do that, I propose to grant permission under s 121 of the Act for her to be able to do that in relation to schooling. Whether or not she discloses the reasons for judgment to any psychologist or therapist treating the children is a matter entirely for her.

2. The mother also sought an order restraining the father form publishing, disseminating, uploading or releasing electronically or otherwise, any video footage of the children. During the proceedings I warned the father about the fact that at law there are consequences under s 121 of the Act for the publication of court proceedings that identify a party or a person who is related to, or associated with, a party to the proceedings. The same applies to identifying witnesses in the proceedings. The law treats such an offence seriously because upon conviction, there is a possibility of imprisonment. The father was equivocal about whether he or his brother would upload such material to the internet as I have already described. To the extent that the mother sought an injunction, the evidence does not support a finding that there is a likelihood that the father would breach s 121. Indeed, in circumstances where the responsibility for prosecution of such a breach lies with the Commonwealth, it is inappropriate for the court to make the injunction to preclude someone from doing something which is already illegal.

3. The mother also sought an order that the father be restrained from attending at her home but there is no evidence of his desire to do so and accordingly I would not make the order. 

4. The mother also sought injunctions precluding the father from attending the children’s school and having regard to the wishes of the children to which I have already referred and the forceful nature of the father’s views, such an order is probably unnecessary for two reasons.  First, this court would not tell the principal of a school who could, or could not, come upon school grounds whether for appropriate or inappropriate reasons.  To clarify the position however, I propose to make an order that the father not attend so that the children have some respite from the fear that they expressed.  Time is running out in their school lives and it may be that they ultimately want the father involved in their lives but it is certainly not evident at the moment.  An injunction should therefore follow to protect the children’s wishes. 

5. The second reason is that the children are now at an age where they can apply for an intervention order against their father if he did something contrary to their strongly held views.  Whilst that would exacerbate the very point that I have just made about trying to end the conflict between the parents, the father would do well to give the children an opportunity for the respite that I have mentioned. 

6. In the course of the proceedings, the mother made clear that if the father wanted to write to the children, having regard to their ages, he could do so.  If he was simply venting his spleen, having accepted their level of understanding, they would no doubt be old enough to ignore what he is doing but if he took a view consistent with his own father’s position, it may be that the door can remain ajar.  However, to give the children the respite that I think they need from being so pressured, an injunction should issue to preclude him at this stage from attending their school or extra-curricular activities.  I otherwise decline to make any other orders.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 September 2018.

Associate: 

Date:  25 September 2018