D and D
[2002] FMCAfam 278
•26 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2002] FMCAfam 278 |
| FAMILY LAW – Parenting orders – residence and contact – two male children living with their father and adult brother – best interests of the children – elder child disabled – both expressing a wish to remain with the father – mother denied regular contact notwithstanding court orders for contact – whether the father influenced the children against the mother – whether the father unduly focussed on elder child – whether the father subjecting the children to psychological abuse. |
Family Law Act 1975 (Cth), Part VII, ss.60B, 65E, 68F
B & L [2001] FMCAfam 84
| Applicant: | RMD |
| Respondent: | PJD |
| File No: | NCM4812 of 2001 |
| Delivered on: | 26 September 2002 |
| Delivered at: | Canberra, via phone to Newcastle |
| Hearing Date: | 30 & 31 May, 6 June and 29 August 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the applicant | LJ Hamilton |
| Solicitors for the applicant | Searson Shannon & Co |
| No appearance by the respondent on 29 August 2002 |
| Counsel for the respondent up to 6 June 2002 | Mr G Coakes |
| Solicitors for the respondent up to 28 August 2002 | Kevin Byrnes, solicitor |
ORDERS
AMENDED UNDER THE SLIP RULE
THAT the children of the marriage, L, born 26 March 1986 and T, born 27 August 1994 (“the children”) reside with the mother.
THAT the father and mother have joint responsibility for the long term care, welfare and development of the children.
THAT the father and the mother have sole day to day responsibility for the care, welfare and development of the children during periods that they are in their care.
THAT the father have reasonable contact with the children defined as including:
(a)in “weeks 1 and 2” commencing on the second Thursday following the date of implementation of order 1 from the completion of school on Thursday to the commencement of school the following Tuesday;
(b)in “week 3” from the completion of school on Tuesday until the commencement of school the following Thursday;
(c)for one half of the school holidays, excluding the Christmas holidays, as agreed between the parties but failing agreement, the first half in uneven numbered years and the second half in even numbered years, alternating year to year thereafter;
(d)for one half of the Christmas school holidays as agreed between the parties, but failing agreement, the first half in uneven numbered years and the second half in even numbered years, provided that this order be suspended during the period 12.00 noon on 24 December to 5.00pm on 26 December in each year;
(e)in even numbered years from 12.00 noon on 25 December to 5.00pm on 26 December;
(f)in uneven numbered years from 12.00 noon on 24 December to 12.00 noon on 25 December;
(g)in the event that the children’s birthdays do not fall during a contact period then for three hours on each of the children’s birthdays;
(h)by telephone at any reasonable time;
(i)such other contact as is agreed between the parties.
THAT contact:
(a)pursuant to order 4(a) and 4(b) is to commence by the father collecting the children from school and is to conclude by the father returning the children to school;
(b)otherwise be implemented as agreed between the parties, but in the absence of agreement, contact is to commence by the mother delivering the children to the home of the father and is to conclude by the father returning the children to the home of the mother.
THAT each party shall inform the other of any medical appointment or other medical arrangements made for the children, particularly in respect of L’s cochlear implant.
THAT neither party denigrate the other party in the presence or hearing of the children.
THAT both parties ensure, to the extent possible, that L is encouraged to attend school as often as possible in order to take account of the special funding arrangements made available for him.
THAT pursuant to s.65L(1) of the Family Law Act 1975 (Cth), compliance with order 1 be supervised by a family and child counsellor nominated by the Director of Court Counselling of this registry of the Court, with a view to the change of residence required by order 1 being preceded by the children being delivered by the father to counselling at a time and place nominated by the Director of Court Counselling, and being collected by the mother at the conclusion of counselling.
THAT the time nominated by the Director of Court Counselling pursuant to order 9 shall be the date of implementation of order 1 provided that order 1 is implemented on that date.
THAT the mother has liberty to apply for further orders relating to the enforcement of order 1 on 48 hours notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM4812 of 2001
| RMD |
Applicant
And
| PJD |
Respondent
REASONS FOR JUDGMENT
Introduction
PJD (“the father”) and RMD (“the mother”) are the parents of two children: L, born 26 march 1986 and T, born 27 August 1994 who are the subject of these proceedings. A third child, JD, has attained 18 years of age and is not the subject of these proceedings. The mother has experienced difficulties with the operation of previous orders concerning L and T which led to a contravention application and an application for changed contact arrangements. The present application before this Court is an application by the mother for final orders for residence in her favour and for orders for L and T to have contact with their father at defined times and in defined circumstances. The father opposes the orders sought by the mother. L and T currently reside with the father and have contact with the mother pursuant to interim orders which I made on 6 June 2002.
Background
The parties commenced cohabitation in 1979 or 1980 and married on 2 January 1982. They initially lived in Orange but later moved to South Australia, then Sydney, then Canberra, then back to Orange and finally to Port Macquarie.
The father formerly worked with the Australian Federal Police but resigned in 1990 due to illness. Since 1993 he has received a disability pension and has not been employed since. The mother has been employed part time at least since 1996 and currently works at Centrelink.
L was born congenitally deaf and suffers from chronic and severe learning difficulties and substantial problems with speech and language. He has worn a hearing aid since 1987. He has worn a cochlear implant since 1992. L has required special education.
The parties separated on 1 September 2000 and in October 2000 informal arrangements were made for the mother to have contact with the children, who continued to live with the father. The mother has repartnered with LJ. The mother began experiencing problems with contact in May 2001 and in July 2001 she filed an application for contact orders in the Local Court at Port Macquarie. Contact orders were made by the Local Court at Port Macquarie on 13 July 2001 and on 10 August 2001.
Subsequently, the mother alleged that she was prevented from exercising contact pursuant to the orders from the Local Court and filed a contravention application in this Court. The application has not been pursued to date. The present application was filed in this Court on 6 December 2001.
On 31 May 2002 the parties filed in court the following agreed list of documents:
·amended form 3 application for final orders, filed 6 December 2001;
·form 3A response, filed 9 May 2002;
·affidavit of PJD, sworn 6 May 2002;
·affidavit of JMJ, sworn 17 May 2002;
·affidavit of RMD, sworn 23 May 2002;
·affidavit of LJ, sworn 23 May 2002;
·affidavit of JD, sworn 28 May 2002;
·affidavit of JO, sworn 29 May 2002; and
·family report dated 20 May 2002.
In addition, the mother relies upon a further affidavit sworn by her on 21 August 2002 and an affidavit by Mr O, sworn 20 August 2002. A number of documents were also tendered by the parties as exhibits.
Relevant law
I referred to the relevant principles in a contact case in B & L [2001] FMCA fam 84. Contact orders are parenting orders. They arise in proceedings that result from Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The overriding principle in such proceedings is that the best interests of the child is the paramount consideration: s.65E of the Family Law Act. Subject to that, s.60B sets out the objects of Part VII and the principles which underlie those objects. The four principles are:
1)Children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
2)Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
3)Parents share duties and responsibilities covering the care, welfare and development of their children.
4)Parents should agree about the future parenting of their children.
These are only principles, not prescriptive rules, and the best interests of the particular children in this case remains the paramount consideration. Nevertheless they are important and I must pay due regard to them. I also encourage the parties to think carefully about these principles when they are dealing with each other in future on matters concerning the children.
In deciding the contact arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s.68F(2). It is clear from that provision that the list of factors is not closed and that the infinite variety of individual children’s circumstances can be addressed.
Consideration and findings
The following matters are in contention:
·the nature of the children’s relationship with the mother and the father and their attachment to both of them;
·the wishes expressed by both L and T, but especially L;
·the nature of the children’s relationship with the mother’s de facto partner, LJ;
·whether the children are at risk of physical or emotional abuse from either the mother or the father or LJ;
·the desirability or otherwise of separating the children from their older brother JD or each other;
·the father’s attitude towards the mother and whether the father has negatively influenced the children against having contact with her;
·the capacity of the father to promote a relationship between the children and their mother;
·the likely effect upon the children if they move from the primary care of the father into the care of the mother;
·whether the mother can adequately cater for L’s special needs, both as to his educational requirements and his emotional and intellectual needs; and
·the father’s emotional state and whether he has developed an unhealthy obsession with the special needs of L.
These and other issues were addressed in a family report prepared by Ms Dinah Taylor, a Family Court counsellor on 20 May 2002. Ms Taylor recommends that L and T live with the mother. She also recommends that the children receive counselling in relation to the recommended change of residence and that contact between the children and the father be supervised for an initial three month period. Ms Taylor also recommends that the father receive counselling to assist him to resolve issues of grief and loss.
I now turn to the consideration of the best interests of the children, having regard to the factors specified in s.68F.
The children’s wishes
It is clear from the evidence of the parties that the mother has experienced a great deal of difficulty in exercising contact with L and T, notwithstanding previous court orders. It is clear from the evidence of the father, JD and JO (a teacher’s aide at L’s school) that the children have expressed a reluctance to go on contact with their mother, in particular overnight and that the children, in particular L, have expressed a strong preference to continue living with their father. This is corroborated by the family report, although the opportunity for the family reporter to discuss these issues with L was inhibited by L’s communication difficulties and apparent distress during the interview. Both L and T also expressed highly negative opinions about the mother’s new partner, LJ. Both the father and JD gave evidence that the family had been “abandoned” by the mother.
The father denied seeking to influence the children in their relationship with their mother and he stated under cross-examination that he encouraged the children to go on contact with the mother when they wanted to. The problem is that they have not wanted to. The father admitted under cross-examination that he told the boys they could decide whether to go on contact with their mother. Both the father and JD exhibited very strong feelings of abandonment. Both now have very little to do with the mother. Inevitably, the views of the children have been influenced by those of their father and their adult brother.
I do not place much weight on the views of T, given his age and the description of his views reported by Ms Taylor. The views expressed by T appear superficial and are likely to change in the event that he spends more time with the mother and her partner. I give more weight to the views of L, given his age and his disability. L is easily distressed and managing his behaviour can be a problem for his parents and other carers. In the circumstances, L’s views, whatever their origin, need to be taken seriously. Nevertheless, I am not satisfied that the mother has done anything to merit the hostility expressed by the children. The hostility of the father is understandable, following the parties’ separation and the mother’s repartnering. At the same time his hostility is regrettable and I find that it has infected the thinking of each of his sons. The hostility of JD stems largely from a single incident when he went to visit his mother and found that she had changed residence without informing him. It stems also in part from his close relationship with his father. I find that the attitude of JD has also been a factor influencing the views of the children.
The nature of the children’s relationships
The children have a very close relationship with their father and with JD. Since separation the father has been the primary care giver. Prior to separation the mother also played a major role as a care giver and I find that up to separation the role she played was not inferior to that of the father. Upon separation the father declined to leave the matrimonial home and so the mother did. She continued to see JD and the children regularly up until the time that she moved in with LJ. It was at that time that JD ceased contact and that the mother started experiencing difficulties in securing contact with the children.
The father conceded under cross-examination that the mother was a devoted mother up until the time of separation. He holds the strong view that the mother abandoned the family upon separation.
The affidavit evidence of both parties discloses that this family has been under emotional and financial stress since the birth of L and the forced resignation from employment of the father due to illness. L has been a focus of attention for both parents due to his disability. The father, in particular, gave evidence that he was focussed on L’s needs. The relationship between the father and the children, especially L, is a complex one. The father defines himself in terms of his role as the primary carer of L. To a lesser extent, he defines himself in terms of his role as the primary carer of T and the parent and companion of JD. The intensity of the father’s focus on this role has fostered a relationship of mutual dependence between him and the children. The children have come to believe that they depend upon their father for their care. The father has come to believe that he depends upon the children to give meaning and purpose to his life.
The relationship between the children and their mother is less complex. They appear to have had a normal loving relationship prior to the separation of the parties. The sudden revelation that the mother had repartnered with LJ was a traumatic experience for L, as it was for JD and their father. It was less traumatic for T due to his relative immaturity. With hindsight, the mother may regret her sudden and unheralded introduction of LJ as her new partner. This earned the enmity of the father and JD and the children felt that LJ was being foisted upon them. This harmed the relationship between the mother and JD and L and caused some disturbance in the relationship between the mother and T.
Under the influence of the father and JD, the children resisted contact that was required by court orders. The situation came to a head shortly before the commencement of the trial of this matter when, on 24 May 2002, the mother went to the father’s house with her sister at a time when she knew the father would not be there. She coerced the children to go on contact with her. In the case of L this required physical force. The mother and LJ gave evidence that once the children settled down they enjoyed the weekend’s contact with the mother, although L became anxious again when the time came to return to the father’s home. The father is highly critical of the conduct of the mother on this occasion. While I do not condone it I regard it as an act of desperation to achieve at least one weekend of contact in accordance with orders of the Court. The objective of the mother appears to have been to demonstrate that she has a good ongoing relationship with the children. I accept her evidence, LJ’s evidence and the family report as establishing that she has a good ongoing relationship with T. Her relationship with L remains under some strain, due to L’s negative attitude.
The relationship between the children and LJ has been distant and formal since the mother moved in with him. The children have been influenced to dislike him. Ms Taylor observed, however, that the children warmed to LJ during a relatively short period of observation. I find that the relationship between the children and LJ, while it has been poor, will quickly improve once the children spend more time with him.
The likely effect of any changes in the childrens’ circumstances
No reason has been advanced why the children should not have contact with their mother, at least to the level required by existing court orders. If there were to be a change of residence there would not need to be any change in the childrens’ school as the parents live in close proximity to one another. The interim orders that I made on 6 June 2002 secured improved contact between the mother and T since then and some contact between the mother and L. That increased contact lessens the impact of any change of residence but a change of residence would nevertheless be a significant emotional adjustment, in particular for L. The observations in the family report when Ms Taylor saw the two children with the mother and the father at the Family Court at Newcastle show that while T has a warm relationship with his mother, the relationship between L and the mother is reserved. Both boys also continue to exhibit some hostility to LJ. At paragraph 229 of her report Ms Taylor recommends that any negative impact upon the children of a compelled relationship between them and LJ be dealt with by way of counselling.
Practical difficulties and expense associated with contact
This is not an issue in these proceedings.
Capacity of the parents to meet the children’s needs
It is conceded that both parents have the capacity to meet the children’s physical needs. The father concedes that the mother was a devoted mother up until the time of separation and I am satisfied that she continues to have a warm and loving relationship with T. I find that the mother has the capacity to meet his emotional needs. I also accept that the father has the capacity to meet the emotional needs of T, although his dominant focus on the needs of L raises a legitimate question whether the needs of T have been adequately catered for. I find that there is a risk that the father’s fixation on L’s needs may result in him overlooking the emotional needs of T, notwithstanding his general capacity to meet those needs.
In relation to L, I find that both parents have the capacity to meet his emotional needs although the mother would require support. The father has demonstrated an intense focus on the needs of L and I am satisfied that he could, and indeed has, met those needs alone.
The primary inhibition on the mother’s capacity to care for L is her employment. The father does not work. He therefore has substantially more time than the mother to devote to the demanding requirements of L’s care. Nevertheless, I am satisfied that with the support of the father and her partner, the mother could cope.
The childrens’ maturity, sex, background and other characteristics
L’s disability is clearly an important issue in these proceedings. As I have noted, the father has demonstrated a capacity to care for L alone and I am satisfied that the mother could do so with support. The relationship of mutual dependence between L and his father is a matter of concern should there be a change of residence. There is a risk that L could be seriously disturbed by an abrupt change of residence and this calls for counselling in conjunction with such a change.
The need to protect the children from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
The children are not at risk of physical abuse in either household. Both parties have raised concerns about the children being exposed to age inappropriate sexual material in the residence of the other but I find that these concerns were overblown. There is no risk that either parent would subject the children to sexual abuse or exploitation or would knowingly permit them to access age inappropriate sexually explicit material.
I do have a concern that the father has subjected the children to emotional abuse and that he will continue to do so if the children continue to live with him. He is clearly obsessed with the needs of L and his role as L’s carer. He described that role as his reason for being. Ms Taylor reported that the father spoke for 15 minutes non stop about L when given the opportunity. I observed a similar phenomenon when the father gave oral evidence. I found him to be disturbingly didactic on any issue concerning L. I accept the mother’s evidence that the father’s attitude has alienated him from friends and relatives. The father admitted to the family reporter that he felt that his parents did not understand L’s needs. His father has died but he is estranged from his mother and sister. I accept the mother’s evidence that the father prevents the paternal grandmother from seeing the children. The father has also been involved in disputes with teachers about L’s education: exhibit A2. This does not necessarily mean that the father was in the wrong but I am satisfied and I find that the father is hostile to anyone who challenges whatever views he has about L’s condition and needs.
The family reporter was seriously concerned about the father’s attitude. She described it as an obsession. I agree. This concern pervades the family report and, in my view, is a very significant issue in these proceedings. At paragraph 219 of the family report Ms Taylor states that the father’s attitude has negatively impacted upon his ability to parent appropriately and has led to him influencing the children negatively in regard to a relationship with the mother. I agree. At paragraphs 223 – 227 the family report states that:
It is of serious concern that the subject children appear to be being obstructed emotionally from having regular contact with the mother, whilst being in the father’s care.
It is this writer’s opinion that if the children remain in the father’s care, these emotional obstacles, which can be described as emotional abuse, will continue.
It is of grave concern that the father’s focus has been and continues to be keenly upon L and his disabilities so that T’ needs will continue to be given a lesser priority, if he remains in his father’s care.
It is of concern that if L remains residing with the father, that he may not have the opportunity to develop along his own path, rather than his father’s preferred path for him.
It is of great concern that the father may become emotionally vulnerable, perhaps to the point of self harm, if the focus of his being over the last 15 years, L, is removed from him.
I agree with and accept these observations of Ms Taylor. I find that the children have been subjected to emotional abuse by the father and that there is a strong risk that this abuse will continue if the children continue to live with him. The situation has improved somewhat following the interim orders I made on 6 June 2002 but the mother has continued to experience problems in exercising contact, especially with L: mother’s affidavit, 21 August 2002. The father has fostered an unhealthy relationship of mutual dependence between him and the children. He has permitted L to avoid going to school. The children are aware that the father is emotionally dependent upon them and they have revealed to the mother a fear that if they leave him he will die: mother’s affidavit, 23 May 2002, paragraph 162. I find that a continuation of this state of affairs is not in the best interests of the children.
The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the childrens’ parents
The mother acted inappropriately in forcing contact upon the children on 24 May 2002. She also was unwise in the abrupt and unheralded way in which her relationship with LJ was revealed. In other respects no criticism can be levelled at the mother as a parent. The problem the father has is that his long standing devotion to the care and needs of L has developed into an obsession following the separation of the parties. He seems to have no other focus in his life. He believes, sincerely, but I think incorrectly, that he is the only one capable of understanding L and his needs. This has led to the father excluding the influence of anyone who does not share and accept his opinions. The father was irresponsible in permitting L to take numerous absences from school, especially last year: mother’s affidavit, 23 May 2002, paragraphs 75-78; Family Report, paragraph 106 and exhibit A3. He has told the school that L does not wish to continue with his secondary education next year: exhibit A5. Mr O, the principal of L’s school, has expressed the view that the best option for L would be to continue. While the father is a good and caring parent his controlling attitude and obsession with the needs of L has adversely impacted upon his capacity to make sound judgments as a parent. In particular, his belief that he alone has the answers in relation to L’s needs has led to the exclusion of others who may have a positive influence on L’s life.
Any family violence involving the children or a member of the children’s family and family violence orders
This is not an issue in these proceedings.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
As already noted, the mother has experienced severe difficulty in securing compliance with orders in her favour for contact. The father has at least nominally complied with orders I made on 6 June 2002 under threat of a change of residence of the children. There are unresolved contravention proceedings arising out of alleged breaches of earlier court orders for contact. I find that given the attitude of the father and his influence upon the opinions of the children, it is almost inevitable that the mother will continue to experience difficulties in exercising contact for so long as the children live with the father. Orders requiring a change of residence may result in an appeal but, subject to a final resolution of that issue, I think it likely that orders for a change of residence would lead to less ongoing litigation than the maintenance of the status quo.
Any other fact or circumstance the Court thinks relevant
The father did not attend the hearing on 29 August 2002 when the family reporter gave her evidence and submissions were received. Between the hearing on 6 June 2002 and the hearing on 29 August 2002 the father dismissed his legal advisers, ostensibly for financial reasons. The solicitors for the father, upon withdrawing, informed the Court that the father could not attend the hearing on 29 August 2002 for financial reasons: exhibit A4. I have difficulty accepting that explanation. The father conceded in cross-examination that the household income in his household was in the vicinity of $1,200 per fortnight. I reject any suggestion that the father is impecunious. Even if he were impecunious, many poor litigants manage to attend court and make great personal sacrifices to do so. The father acted against his own interests in choosing not to attend Court on 29 August 2002. The result of his non attendance is that Ms Taylor was not cross-examined by him or on his behalf and I received no final submissions from him or on his behalf. He is thereby clearly placed at a disadvantage of his own creation.
Conclusions
I conclude from my analysis of the factors dealt with above that the best interests of these children would be served by orders requiring a change of residence. At paragraph 231 of her report, Ms Taylor recommends that the father have only supervised contact with the children for three months after the change of residence to allow the children to re-establish a relationship with their mother free of negative input and emotional coercion from the father. Ms Taylor recommends that if appropriate supervision cannot be found, then the contact between the father and the children should be by written word only over this period. That recommendation is not supported by the mother, who considers that it is important, especially for L, that the children have extensive ongoing contact with their father. I agree with the mother. The alienation of the father from his own family means that it would be extremely difficult to find an acceptable person to supervise contact between him and the children. It would, in my view, be unnecessary and potentially destructive to restrict the father to written contact with the children for any period. In addition, the special needs of L compels me to a conclusion that he should have a very substantial ongoing relationship with his father. Following a change of residence, the developing warmth of the relationship between the children and the mother should ensure that any negative influences from the father will find decreasingly fertile ground.
The mother has sought an order requiring the father to undergo counselling as a precondition to contact. The father has previously had counselling, but it has not been productive. The father would probably benefit from further counselling, but I will not force him to attend. On 6 June 2002 I ordered the father to attend post separation counselling. He attended once and made no further appointment. If he does not wish to attend such counselling I can do nothing further to assist him. It would be unfair on the children to require contact with their father to be conditional upon counselling that he probably would not attend.
The change of residence will be a difficult time, especially for L. That change should take place at a fixed time, immediately following a counselling appointment for the children.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 September 2002
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