DAVIES & DAVIES

FAMILY COURT OF AUSTRALIA

DAVIES & DAVIES

[2011] FamCA 246

FAMILY LAW - CHILDREN – with whom a child lives – best interests – discussion of “meaningful relationship”– where there is highly conflicted parental relationship – where one child is estranged from the mother – where mother does not support children’s relationship with the father – where father provided little evidence about his parenting capacity - separation of siblings – orders for therapeutic assistance – effect on children of changing their circumstances – no change in parent with whom children live – orders for younger children to spend time with father

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405

APPLICANT:

Mr Davies

RESPONDENT:

Ms Davies

INDEPENDENT CHILDREN’S LAWYER:

Reid Family Lawyers

FILE NUMBER:

SYC

537

2007

DATE DELIVERED:

8 April 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

24 & 25 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Greenaway

SOLICITOR FOR THE APPLICANT:

David H Cohen & Co

ADVOCATE FOR THE RESPONDENT:

Ms Davies appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ward

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Reid Family Lawyers

Orders

All prior orders made in relation to the children, J born … March 1996, E born … September 1998 and C born … May 2006 are discharged.
That the children, E and C shall live with the Mother.
The mother shall have sole parental responsibility for decisions concerning E and C’s long term care and welfare. That the mother advise the father in writing about decisions concerning the children’s education, medical procedures which are not urgent, and proposed changes to their place of residence not less than 30 days prior to the implementation of any such decision.
That J shall live with the Father.
That the father shall have sole responsibility for decisions concerning J’s long term care, welfare and development. That the father advise the mother in writing about decisions concerning J’s education, medical procedures which are not urgent, and proposed changes to her place of residence not less than 30 days prior to the implementation of any such decision.
That E and C shall spend time with the father as follows:
(a)On the first weekend of each calendar month from 5.30 pm on Friday until Sunday at 4.00 pm;
(b)For one week during the end of Term 1, 2011 school holidays, from 12.00 noon on 10 April 2011 until 12.00 noon on 17 April 2011, or at such other times as the parties agree in writing.
(c)For the whole of the NSW gazetted term 1, 2 and 3 school holidays from 12 noon on the first Saturday of the school holiday period until 12 noon on the Saturday prior to the children’s return to school.
(d)For half of the Christmas School holidays, being the first half in odd numbered years and the second half in even numbered years. For the purposes of calculating school holiday periods, school holidays will commence at 12 noon on the day after the last day of term and end at 12 noon on the Sunday before school resumes. In the event of an uneven number of days, the midpoint will be at 12 noon on the middle day. In the event of an even number of days, the midpoint will be 12 noon on the day after the middle day.
For the purposes of changeover except as otherwise agreed between the parties, changeover will occur at B railway station by the parties or their nominees.
Order 3 is conditional upon the mother doing all things reasonably required of her to obtain a referral from her general practitioner to Counselling Service 1 and thereafter to attend therapy within that program for as long as her therapist recommends.
Order 5 is conditional upon the father doing all things reasonably required of him to obtain a referral to a therapist/counsellor to assist him in relation to his care of J and the children.
The parties will do all things to follow any reasonable recommendations by the children’s schools for the children to attend counselling/therapy and will facilitate the children’s attendance on counsellors for such duration and at such frequency as recommended by the counsellor.
The parties and Independent Children’s Lawyer may provide copies of the Court’s reasons for judgment and reports prepared by Dr R for these proceedings to any counsellor attended by them or the children.
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.
All outstanding applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Davies & Davies is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 537 of 2007

Mr Davies

Applicant

And

Ms Davies

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings which concern the parties’ three children, J born in March 1996, E born in September 1998 and C born in May 2006.
J lives with Mr Davies who is the children’s father and the applicant in these proceedings. E and C live with Ms Davies who is the children’s mother and the respondent.
Upon the parties’ separation in January 2007 the father vacated the family home and the three children who were then aged nearly 11, 8½ and 8 months respectively remained in the mother’s care. Thereafter, the children’s time with the father was limited and in relation to the two younger children has never included time with him overnight. Other than during interviews ordered by the Court, these two children have not spent time with the father for about 15 months.
In mid 2009 J left the mother’s care and commenced living with the father. J was and is in a dire situation. Amongst other matters, she was truanting, shoplifting, “obstinate”, selfish and unhappy”. Thus, from this time, other than a few months in late 2010 when she returned to live with the mother, the siblings have been separated.
The mother is furious with J and affronted by her decision to live with the father. The child’s attempts to build bridges with the mother have been rebuffed. In circumstances where the mother has been opposed to the younger children having contact with the father, her rejection of J has meant the siblings rarely see each other and have not seen each other at all since late 2010.
The father proposed that the three children live with him and spend time with the mother each alternate weekend. It is not clear whether he proposed they also spend time with her during school holidays.
It is the father’s case the mother has interfered with his and the children’s ability to maintain or/and develop meaningful relationships. According to him, he has been on the receiving end of almost unbelievable vitriol from the mother which she has shared with the children. It is his view the mother’s undisputed behaviour in this respect is a portent for the future. In other words, he said it is beyond dispute the mother will never encourage the children to spend time with him or acquire insight into how her attitudes towards him harm the children. While he is complimentary of her ability to care for the children physically, he says if the two younger children continue to live with her it is highly likely they too will be emotionally and psychologically harmed. With her authoritarian style of parenting, according to the father, it is highly likely the younger children as they reach adolescence and engage in normal limit testing behaviour, the mother will reject them in the same way she has J.
It is the mother’s position the two younger children should live with her and that she should have sole parental responsibility. She is content that J can decide with which of the parents she will live. According to her, the father should not be able to spend time or communicate with the two younger children. For so long as J chooses to live with the father, because the mother refuses to even speak with J, the effect of her orders would be that the three children would not see each other.
The mother said the father is an irresponsible parent who is “evil”. According to her, prior to the parties’ separation, most weeks the father would, without notice, disappear for a day or two at a time. He switched off his mobile telephone which meant her and the children’s attempts to contact him were unsuccessful. Nonetheless, after the parties separated she told the father she was agreeable to him having regular contact with the children. However, within months she said a pattern developed of the father making arrangements to see the children then, without notice, failing to attend. J and E were variously distressed and disappointed.
To protect her and the children from future disappointment and probably to motivate the father to adhere to arrangements to spend time with the children, the mother secured orders, the effect of which was that if on three occasions he failed to spend time with the children or give her less than 24 hours notice of his non-attendance, all orders for him to spend time with the children were suspended. As probably could have been anticipated, thrice the father failed to give sufficient notice and his time with the children ceased. It was reinstated in April 2009 by orders which facilitated contact between the father and children for two hours each alternate Sunday and at their swim meets.
Against this background, the mother is outraged that the father accused her of contravening orders and obstructing his and the children’s relationships. During the hearing and to the Court expert, the mother gave full vent to her outrage. This took the form of opportunistic vitriol directed at the father. To the Court and Court expert, the mother questioned how she could be satisfied that the father would be a more responsible parent than has been the situation and how would she deal with the children’s disappointment when he inevitably let them down. Thus, she stridently argued orders for the two younger children to spend time or communicate with the father could not be in their best interests.
Dr R is a child and family psychiatrist. She was appointed as the Court’s expert to investigate and report upon the children and parents. Dr R’s curriculum vitae is attached to her affidavit. By virtue of her professional qualifications and clinical experience she is well qualified for the task for which she was retained. Her evidence is accepted and afforded significant weight.
When Dr R interviewed the family in May and June 2009, they were in crisis. The parental relationship was highly conflicted and the mother extremely hostile towards the father. He had been drinking heavily and grudgingly accepted there was an element of truth to the mother’s and children’s claims that he had failed to adhere to arrangements to spend time with the children. The father had lost his job and in the weeks before he saw Dr R he had begun to see a psychologist.
As part of her investigations, Dr R observed the children with the father for about 1½ hours. C engaged happily with her father and wanted him to carry her as they left. E was resolutely critical of him and said “I don’t like you”. She avoided eye contact with the father, looked cranky and accused him of “going out since I was born”. J aggressively demanded she be permitted to move in with the father. He had already told her that this was not possible. In response to J’s statement “if you really loved me, you would want me to live with you”, the father explained he would need 3-6 months before this might happen. J berated the father and told him “he never cared”.
Before Dr R could finalise her report, J moved in with her still reluctant father.
Dr R made the following recommendations:
1.Family therapy commences to ensure all disputes are dealt with therapeutically rather than legally. This would not (necessarily) involve the parents being in the same session!
2.Mr Davies continues to work with the psychologist.
3.At present, the family dynamics are too volatile for permanent orders to be made as clinical intervention is required to ascertain the most viable option for residency ie who can contain J. In the interim, the children need to spend time with both parents. Given the current crisis, J to live with her father and see her mother as can be arranged, while C and E live with their mother and spend time with their father one day during the week (after school one day to before school the following day when he can suitably accommodate them), as well as four hours each weekend (eg from after swimming). It is highly desirable the parents do not have personal contact with each other, maintaining discussions about the children through emails.
4.Review if necessary in six to twelve months time.
Four weeks after the release of Dr R’s report the proceedings came before a federal magistrate. The federal magistrate vacated the forthcoming hearing and, by consent, made interim orders for the parties and children to immediately commence family therapy at Counselling Service 2. Apparently not by consent, the federal magistrate ordered the parties to use their best endeavours to follow the recommendations of the Counselling Service 2 counsellor to re-establish J’s relationship with the mother and E’s relationship with the father. The federal magistrate also ordered that Orders 6, 7 and 8 of the orders made 29 April 2009 continue. The effect of this latter order was that the father would continue to spend time with E and C for two hours each alternate Sunday morning and attend their swim meets. Order 8 restrained the parties from approaching each other at the children’s swim meets.
The mother took E and C to the designated meeting point on the next Sunday when they were due to spend time with the father. He did not arrive. Thereafter more often than not, fortnightly periods between the father and these children continued.
Both parties contacted Counselling Service 2. Counselling Service 2 declined to work with the family. When informed of this, the Independent Children’s Lawyer (“ICL”) tried to persuade the parties to commence family therapy with counselling Service 3. The father agreed, however, the mother refused. Unfortunately, the father stopped seeing his psychologist and did nothing further about family therapy for even him and J. No steps were taken by the mother to obtain therapeutic assistance for herself or for her and the children.
On 6 October 2009, the Federal Magistrates Court transferred the proceedings to the Family Court. The catalyst appears to be the father’s contention that J and C said the mother had hit them. The matter was accepted into the Magellan program and on 10 November 2009 a Magellan report was ordered and the Director-General of the Department of Human Services (“DoHS”) invited to intervene in the proceedings.
In about November 2009 the mother stopped making the children available to the father. It appears the parties erroneously understood the earlier interim orders were no longer operative.
DoHS provided a Magellan report on 17 December 2009. It was DoHS’s assessment that E and C were not at risk of harm in the mother’s care. It was their assessment that J was not at risk of harm in the father’s care. Regrettably DoHS declined the Court’s request they intervene.
After attempts at mediation were unproductive, in August 2010, Dr R conducted further interviews with the family. In her report, which is dated 8 September 2010, she made the following recommendations:
1.J live with [the father], with orders he approach a suitable public or private child and family mental health service for family therapy for him and the girls.
2.E and C live with [the mother] and spend time with their father weekly, from after school Friday and return to the mother Saturday (week 1) and Sunday (week 2).
The father did not engage a family mental health service as recommended by Dr R.
On 20 January 2011, the father and J moved to Town 1. Town 1 is in Illawarra south of Sydney.
When Dr R learned the father had moved away from Sydney she altered her recommendation. It was ultimately Dr R’s recommendation that J continue to live with the father and E and C continue to live with the mother. She did not see any utility in orders for J to spend time with the mother. In terms of E and C’s time with the father, she said, during school term, the children should spend a weekend with him each month and extended time during school holidays. It was her recommendation the children have two weeks during the shorter school holidays with the father and as I understood it, at least by implication, half of the Christmas school holidays. Dr R was concerned about the impact on the children if her recommendation for weekly periods with the father failed to occur because he was unreliable. She explained that the children are already burdened by the mother’s vitriol concerning the father, the intensity of which would likely escalate if he failed to attend. Even if the father reliably attended, Dr R was concerned each contact between the children and the father would cause a spike in the mother’s inability to accept the children spending time with him. Thus, the already high level of conflict in the children’s lives would increase.
Dr R was troubled by what would appear to be a hardening of the mother’s negative attitude towards J. The mother’s recent failure to visit J while the child was in hospital to have her appendix removed and her refusal to permit E and C to see her made clear to Dr R the mother has significant personality dysfunction. Although expressed differently, the gravamen of Dr R’s evidence was that the mother has a chronic inability to accept any form of opposition and her authoritarian parenting style is extreme.
According to Dr R, it is very important for E and C to be given the opportunity to form their own views about the father. They must be made aware that there is another reasonable parent they can seek out if they are rejected by their mother. As I understood Dr R’s evidence, the mother is likely to be confronted by normal adolescent testing behaviour. Unless E and C take the path of least resistance and in effect, submit, there is reason to be concerned that the sort of difficulties which J faces would be visited upon the two younger children.
Dr R was troubled by the father’s parenting style. She described him as lassaiz faire and, as a parent and partner, his modus operandi was to take the path of least resistance. She considers him to be unreliable and, in the face of relationship and parenting challenges, his approach was avoidance. Dr R was troubled by the father’s failure to engage with J’s schools to the extent sought by them and which the child required. She was similarly troubled by his failure to be proactive and to do all that was reasonably required to have J attend school and receive therapeutic help. In a similar vein, his failure to maintain a therapeutic relationship which might have better equipped him to deal with J and as a parent concerned her.
Dr R said it was very sad for these children there was no third option available. By this, she meant that the children did not have a responsible and caring third party willing to assume their primary care. Thus, she sought to identify which of the parties is the respective child’s primary attachment figure and the parent likely to meet the majority of their needs.

Dr R placed considerable weight upon the mother’s stable accommodation, her ability to organise the children’s lives so that they regularly attended school, engaged in extra curricular activities and their physical needs were met. The clear picture which emerged was that the father has been “responsibility adverse;” placing his desire to avoid conflict with the mother ahead of his parental responsibilities. This had been reflected in his failure to return home when expected, disappearance for days at a time, excessive alcohol consumption and failure to attend scheduled visits with the children. Dr R accurately assessed that prior to J opting to live with him, the father had never had significant hands-on responsibility for the children and it was a matter of considerable doubt to her whether he could care for more than one child for other than reasonably brief periods.
The tenor of Dr R’s evidence was consistent with the feedback she provided to the parties after she met them in mid 2009. The parties’ willingness to embrace Dr R’s concerns about one another, but not even pay lip service to her concerns about them individually, contributed to her view that the task she and the Court faced involved a “horrible weighing” exercise.
At the end of the hearing, counsel for the ICL expressed the view the outcome of the hearing was finely balanced. It was submitted E and C have no experience of the father regularly meeting their needs. C, in particular, has no recollection of living with the father and neither of the two younger children have had overnight time with him since January 2007. Although J chose to reside with the father, his approach has been to give in to her and she has not received from him the contained parenting which the ICL submitted is necessary. In relation to J, the father’s strengths were described as his affection for her and, unlike the mother, his willingness to accept her unconditionally, even for example, after she set fire to his flat and returned to the mother.
It was submitted that it may assist J to continue living with the father (and in the family) if E and C spent time with them simultaneously. As I understood the submission, at least inferentially, the ICL considered the three children together would probably be able to meet their physical needs when these were overlooked by their father.
The ICL proposed orders consistent with Dr R’s final recommendation subject only to those orders being interim rather than final. More time was required, it was submitted, to allow the presently volatile situation to settle and for the father to establish whether he could care for the children at even a rudimentary level, as well as to ensure the mother made the children available to the father as ordered. It was proposed by the ICL that as far as possible, changeover would take place through a supervised contact centre and the parties communicate via text message. The Court was invited to order the mother to obtain a referral to Counselling Service 1. This is a program which, via a person’s general practitioner, a referral to a psychologist or allied health professional can be made and that person consulted free of charge for up to 12 sessions annually. Further orders were proposed in relation to the children attending counselling/therapy and for “any reasonable recommendations” made by the children’s schools to attend counselling be implemented.
After six months, it was proposed Dr R prepare a third report.
Neither party agreed with the ICL’s suggestion that changeover take place at a contact centre. They agreed the changeover would occur at B railway station. The father agreed with the notion of interim orders, which the mother opposed. According to the mother she and the children were weary of four years of litigation and for the pressure of litigation to continue unabated was unduly burdensome. The mother said she would comply with the children spending time with the father as proposed by the ICL.
During closing addresses the parties agreed C was not ready to spend two weeks away from the mother or more than one week with the father. As the end of Term 1 school holidays were rapidly approaching, it was agreed E and C could spend one week only during the forthcoming school holidays with the father.

The applicable law

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64B). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.
Section 60B sets out the objects of Pt VII and the principles, which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.     The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the 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; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
The Court must also consider the thirteen additional considerations set out in s 60CC(3). These must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).
If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents (s 65DAA) and whether doing so would be in the best interests of the child (ss 65DAA(1)(a) and (2)(c)). The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in ss 65DAA(3) and (4). Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests (Goode & Goode (2006) FLC 93-286). This may include an order for equal or substantial and significant time.
By virtue of s 60CA the Court will determine the weight to be given to the various factors, be they primary or additional considerations or considerations identified as issues arising in the particular case but not specifically referred to in the Act. Ultimately, the weight attached to each factor is a matter for the Court’s discretion.

Applying the law to the facts

Throughout these reasons findings of fact will be determined upon the balance of probability. Section 140 of the Evidence Act 1995 (Cth).
The parties presented surprisingly little evidence. Fortunately, the ICL and Dr R did as much as they could to investigate the children’s circumstances. I understand that to a person untrained in the law, the intricacies of litigation can be overwhelming. However, in this case, the litigation was actively case managed by a federal magistrate and then the Magellan Registrar. Input from Dr R and the ICL enabled the parties to discern the types of matters likely to be of interest to the Court. I do not know why the mother lacked legal representation. She is a person of modest means and, had she applied for legal aid, she may have been successful. For the past two years the mother has studied for her Higher School Certificate and she presented as an articulate person of at least average intelligence. With relatively little effort the mother could have undertaken internet based research and located judgments delivered by this Court in parenting cases. It would appear she did none of these things.
The mother attended this hearing without even copies of documents filed by her or Dr R’s reports. She had not prepared questions and her approach hinted at arrogant disbelief that anybody could contemplate disagreeing with her concerning orders the children live with or spend time with the father. During the first day she made little attempt to properly engage and appeared to be more interested in taking every opportunity to be gratuitously offensive about the father.
The father was represented. The paucity of evidence presented in his case was said to relate to his grant of legal aid being given shortly prior to the hearing. The father was represented by the same firm of solicitors throughout. I infer he understood what was expected from him for this hearing and the type of evidence he should present. With these factors in mind, it is difficult to understand how the father considered his four page affidavit was sufficient. He produced no evidence from J’s school, copies of a lease or photographs of the cabin he rents in a caravan park. He said that his mother and brother each give him $150.00 per week which, when his Centrelink payments are factored in, enables him to pay his rent and necessary living expenses. The father’s mother and brother were not called as witnesses in his case. Since separation he has changed residence on a number of occasions and has been in dire financial circumstances.
While the mother’s financial situation is difficult, she has been an adroit financial manager. The children have settled accommodation and there is no issue that their physical needs are adequately met. Thus, in a contest such as this, the father’s failure to produce evidence he was able to financially support the children and, on a continuing basis, keep a roof over their heads, was troubling.
So that it is clear, the manner in which the parties presented their cases made a difficult hearing even more difficult. This is also relevant to the ICL’s application for interim orders. In this regard, the manner in which the parties presented their case counted against a further hearing.

Discussion

Section 60CC(2) comprises the primary considerations, subject to sub-section 5, in determining a child’s best interests. Section 60CC(2)(a) concerns the benefits to the child of having a meaningful relationship with both of the child’s parents. The words “meaningful relationship” are not defined in the sub-section. In Mazorski v Albright (2007) 37 Fam LR 518 at 519 Brown J described the words as meaning a “relationship or a meaningful involvement … which is important, significant and valuable to the child”.
The Full Court in McCall v Clark (2009) FLC 93-405 accepted this description. In McCall v Clark their Honours also said that the preferred approach to s 60CC(2)(a) is for the Court to consider the prospective benefit to the child of a meaningful or significant relationship with his or her parent.
In Collu & Rinaldo [2010] FamCAFC 53 the Full Court pointed out that a number of s 60CC considerations potentially overlap. For example, s 60CC(2)(a) and s 60CC(3)(b). The point being, that in some cases it may be necessary to make findings in relation to the nature of a child’s relationships with his or her parents before the Court could consider whether there was the potential for a meaningful relationship or there was no benefit for the child of a relationship with a parent. Their Honours explained where the considerations overlapped in this way it could be appropriate to consider the additional considerations first. Where the considerations clearly overlap, as they do here, it is also reasonable to discuss the overlapping considerations simultaneously. This is the approach I will adopt.
J’s relationships with the parties are tenuous and troubled. Until mid 2009, J was reliant upon the mother as her lifelong primary carer and the parent who overwhelmingly provided for her emotional, educational and physical needs. The evidence was not sufficiently comprehensive for the Court to be able to make precise findings about the extent of the father’s involvement with J prior to separation. However, it would appear that by and large he had fulltime employment and the mother was responsible in caring for the children and running the home. The father abused alcohol and, when he was not at work, he spent a not inconsiderable amount of time at a hotel. Both J and E described his absences from the home and clearly recall his spending a lot of time away from the family, drinking. It thus appears that prior to separation the father was not actively involved in parenting the children. The type of hands on parental guidance and input which usually underpins the development of healthy and enduring parent and child relationships did not occur. This situation was exacerbated by adhoc contact between J and the father - post-separation and prior to - her commencing to live with him in mid 2009. During this period it appears she spent time with the father in accordance with the parties’ agreement and, after orders were made, on those occasions when he turned up. J and the father met occasionally for a meal. Nonetheless, the extent of their contact was limited and was usually for no more than a few hours. At best, this contact maintained their relationship which existed at separation.
It was in mid 2009 when J demanded the father agree she live with him that, for the first time, he became the primary carer for any of his children. The father had been reluctant to assume J’s fulltime care. Whether this was because he needed a longer period to make arrangements to adapt his lifestyle to incorporate, in effect, fulltime parenting or for another reason was not entirely clear.
Since J has lived with the father he has sought to guide this very troubled child. However, he has not taken the type of proactive steps which her school sought from him or Dr R recommended. I was concerned to hear the father does not know J’s friends or their parents. This is a child who has been a bully and been bullied. She has come to the attention of police and been admitted (albeit briefly) as an involuntary patient into a psychiatric unit. The father’s lack of knowledge about her suggests inactive parenting by him. My point being, although J lives with the father she has not experienced from him appropriately authorative and responsible parenting.
J is estranged from the mother. The poor state of their relationship is demonstrated by their meeting with Dr R in August 2010. Dr R accurately reported what occurred. When, at the end of the interview, J tried to persuade the mother to join her for coffee, the mother refused. The details of their meeting are set out below:
[J] and [the mother] gave each other very cool greetings. [The mother] stated she does not know what to say to [J] and became tearful as she declared she has tried her best and thinks she has been a good mother. She was hostile towards [J], who tried to engage her and said she is “being good this year”.
Mutual recriminations began between them and [the mother] declared if [J] was going to lie, she was not going to talk to her. [J] broke the silence and indicated she wanted to see Mum, regardless of what she alleged Mum has done. [The mother], reiterating she has been a very good mother, told her she does not want to see [J] as she expects [J] to make further allegations and the police would again be called.
[J] responded to this rejection by being adamant Mum hits, loses her temper, “blames me for everything...bashing me and call(ed) me a slut, a prostitute”. [The mother] rejected these allegations and repeated she does not “want anything to do with you”. She became increasing angry and shouted she did not trust [J], who continued to press to see her and her sisters.
When questioned, [the mother] maintained her rejection of going to therapy, declaring “I’ve done everything right, they’re wrong” and she was not going to argue with [J] and [the father] in therapy. When I commented on [E’s] anger with her father (another reason for therapy), [J] declared Mum had told [E] what to say. [The mother] stated she was telling the truth and has stopped [J] talking to [E]. She acknowledged she has said she would dance on their father’s grave because of what he put her through.
They continued to fight and, when I intervened, [J] demanded “what right do you have to interfere, you are not family”. She continued to beg [the mother] to see her and was told “please leave me alone”. This situation continued until I stopped the assessment. ([Dr R’s] report, 8 September 2010, p 4)

Without therapeutic intervention and dramatic changes in attitudes by the mother and J towards each other, the future for their relationship is grim. Neither of them is in the frame of mind to reflect positively upon the years when the mother diligently cared for J and the joy and pride which the mother gained from this intelligent and previously socially and educationally successful girl.
I have already commented upon E’s difficult behaviour towards the father and frank statement “I don’t like you” when they saw Dr R. Her rude behaviour towards him was a significant contrast to the “self contained, quiet, pleasant ten year old” who engaged nicely with the mother, her sisters and Dr R. At her second interview, E told Dr R she did not want to see her father and repeated her earlier sentiment that she does not like him very much. E described the father as “a not very good Dad”. Dr R reported that E’s “message to the judge was that she does not want to see Dad at all but she wants to meet with J”.
The father’s parenting role in E’s life mirrors his role in J’s life until J moved to live with him. In short, post separation E has no experience of effective parenting from the father. Whatever the situation may have been in their relationship at separation, the high level parental conflict, combined with the child’s lack of contact with the father, will have had a heavy negative influence on the parent/child relationship. E is aware of the mother’s negative opinions about the father and it is almost certain that post separation, she will have heard nothing positive from her about him. Thus, as one might anticipate in these circumstances, the child’s relationship with the father is tenuous and devoid from the child’s perspective of happy memories and experiences with him as a parent.
C was eight months when the parties separated. She has no memory of living with the father. Post separation she has no experience of him in an active parenting role with the maximum time spent together being no more than a few hours. It is interesting that C engaged nicely with the father when she saw him with Dr R and, in response to Dr R’s query “who wants to see Dad?” she immediately responded “she did”. This suggests that in the limited contact C has had with the father since early 2007 he has been nice with her. No doubt, her views about time with the father are influenced positively by her sister’s presence when she has seen him. C has not ever had one on one time with the father (other than a brief period in late 2009 when he refused to return her to the mother). C’s positive attitude to the father indicates that although she is aware her mother does not like him, the mother has not yet burdened her with the type of criticisms she has made about him to the elder two children.
Both C and E are strongly and affectionately attached to the mother. She has been a reliable primary carer and as Dr R explained, importantly, she is the parent to whom they are primarily attached. Both girls are settled and happy at school where they are doing well. Nothing said or done by either of these children indicated they would welcome or adapt, even in the long term, to a reduction in the amount of time with the parent to whom they have their strongest and most positive relationships.
It is the father’s case that he and the children enjoy good enough relationships, which in relation to the two younger children, can only be maintained in a meaningful way if they live with him. There was ample evidence of the mother’s trenchant criticisms of him and inability to say anything nice about him. I decided against reciting chapter and verse here all the horrible statements the mother made about the father. My reason for adopting this approach are to not further distress the father, avoid the prospect others (including the children) may read them and to maximise the chance therapeutic intervention for the mother may prove beneficial. As to the latter, towards the end of the hearing, the mother acknowledged she needed therapeutic assistance about her attitudes to the father. She appeared to recognise how, by dwelling upon him in such a negative manner, she harmed herself and the children. It will, however, be useful for the mother to understand how, in her derogative use of language, she is perceived by others? If the mother’s normal conversation about the father or other people is characterised by the type of remarks she made in this hearing, it would be surprising if she had enduring healthy friendships.
I agree with Dr R the mother’s behaviour towards the father and J “points to significant personality dysfunction”. Few people in this Court’s experience claim, as the mother did, to be the perfect parent. Few people, in the Court’s experience, behave towards a child in distress as the mother has with J, or towards a former partner with the vitriol demonstrated by her. It will take a long time before the mother could say anything nice to the children about the father. It does not necessarily follow, however, that she will continue to expose them to trenchant criticisms of him. The mother was very clear about her commitment to abide orders. Although at one level her courtroom conduct was disrespectful, at another level, it clearly mattered to her that the Court recognise she is a law abiding citizen who, if rules are set, she will obey. In relation to the children, if a set of rules are established by order, she will ensure the children will do what the orders require.
I make these remarks notwithstanding the mother’s failure to embrace the spirit of earlier orders for family therapy. It was not established, however, that the mother deliberately failed to comply with orders for the children to spend time with the father. On balance, I am reasonably satisfied that if these children live with the mother, she will ensure they spend time with the father as ordered. Thus while I am satisfied the mother will not willingly promote the children’s relationship with the father, if ordered, she will give them the opportunity to spend time with him and to derive those benefits which others, but not she, accept the children will derive from an ongoing relationship with him. Before leaving this issue, there is some evidence that the mother hit J and C. This does not appear to have been an unprovoked assault and is better described as heavy handed discipline. This behaviour by the mother has not been pervasive or ongoing. Thus, while there is a risk she will hit the children, the risk is relatively small. There is no suggestion the father has hit the children and the risk he may is less than it is with the mother. Nonetheless this is not a matter which influences my decision. So that it is clear, there are more serious matters which will drive the outcome.
Dr R said it was important for the two younger children to have the opportunity to experience hands on parenting from the father and to form their own views about him. According to her, this could be achieved through longer than usual periods with him during school holidays, supplemented by a weekend each month. In my view, this is the approach which maximises the opportunity for the two younger children to have as good a relationship with the father as possible. It is necessary to observe, this approach minimises the real prospect he would fail to adequately meet their needs with consequential damage to their relationship. Thus, they will know he loves them and their sense of identity will be reinforced through knowing both parents. They will realise that their mother’s authoritarian parenting style is but one approach.
I am far more confident about the father’s willingness and ability to promote the children’s relationship with the mother than vice versa. He was quite genuine when he spoke of his belief the children should live together with the mother. His point being, at least theoretically, he believed these sisters should be able to live together with their primary carer. However, because of the mother’s attitude towards him and J, the father sadly acknowledged this is impossible.
My discussion in relation to relationships and the parties’ ability or inability to support the children’s relationships invites the question: how could it be in the children’s interests to reside with a parent (the mother) who engages in such emotionally and psychologically damaging behaviour towards them about their father and their sister? The answer to this question lies, in effect, on the two younger children: of changing their circumstances, including separation from the mother, E’s views and the paucity evidence which might indicate the father has the capacity to meet the three children’s needs.
Presently, E and C live with the mother at an inner-city suburb of Sydney. E has just started high school and C is in Kindergarten. The children are settled and happy at school. E swims competitively and both children are content living with the mother. Their school attendance is good. The maternal grandmother lives nearby and sees the children most days. There is no evidence the children have been neglected by the mother or reason to doubt her commitment to ensuring their needs are met to the best of her ability. It is abundantly clear E and C would be seriously traumatised if they were removed from the mother’s primary care. Such trauma would not resolve quickly and would require highly skilled care from the carer to whom they were removed to avoid long term harm.
The father has not had primary responsibility for E or C’s care. In many respects, C is an unknown quantity to him. He does not know the rhythm of her life, her likes and dislikes, things she finds comforting or things which distress her. To an extent, similar findings about his relationship with E are appropriate. Although the father lived with E until she was 8½, it is now four years since they have spent more than a few hours together in one period and about 16 months since contact of that duration.
I am not satisfied the father has stable accommodation. Presently, in order to provide for him and J and to meet their basic needs, he requires financial support from family. I do not know how long this financial support will continue. So that it is clear, the evidence does not enable me to infer his mother and brother’s financial commitment is likely to endure. According to the father, he no longer drinks alcohol to excess. That alcohol compromised his parenting capacity is evident from his attendance at the elder girls’ school whilst drunk, and the unpleasant scene created by him in their and their friends’ presence. It is not entirely clear, but it would appear he has had difficulty affording and/or paying a reasonable level of child support.
The father’s personal history is recounted in Dr R’s first report. In short, he had a difficult childhood and was denied an effective parental role model. The father endured loss and bullying. Perhaps this goes some way towards explaining his less than active parenting role with his own children. Unfortunately, the evidence does not persuade me the father has the parenting skills which would be necessary to help E and C cope with a change in their living arrangements so that they primarily lived with him. In coming to this view, I have not overlooked the father has maintained his commitment to this litigation and his care of J since mid 2009. While the father has done his best for J, as I earlier commented, this has not been sufficient to persuade me he would be able to meet C or E’s needs. The most likely scenario would be the elder children would care for C and between themselves the siblings would manage as best they could with whatever the father provided.
Dr R explained it cannot be assumed J’s difficulties with the mother will be replicated by E and C. Presently, E does not demonstrate the oppositional characteristics J did at the same age. C’s personality is still forming and it would be mere speculation to determine at this point whether the prospect she might be rejected by the mother was a likely scenario. Nonetheless, as the mother’s behaviour towards J has demonstrated, the prospect of rejection by her of the two younger children requires serious consideration. It is this factor along with the importance of giving the three siblings the chance to be together, which outweighs E’s view against time with the father. In relation to C, these are also important matters but, even when the benefits to her of having a relationship with the father are taken into account, they do not outweigh the harmful effect upon her of separation from her primary carer.
There is evidence of family violence between the parties, which although the details are somewhat unclear, is sufficient for the presumption of equal shared parental responsibility to not apply. As I will shortly explain, the highly conflicted nature of the parties relationship would defeat an order for equal shared parental responsibility. Neither party proposed equal time orders, which, even if other facts leant support to such an outcome (which they do not) the distance between the parties homes render this impractical.
On balance, in the very difficult circumstances of this case, I am persuaded orders should be made along the lines recommended by Dr R. It weighs heavily that this outcome denies the siblings the opportunity to be reunited in one home. The children love each other and all feel deeply the loss of living together fulltime. They will, however, continue to see each other when the two younger children spend time with the father. Ideally, the mother would include - as one of her goals from therapy - healing her relationship with J. Whether the mother has the maturity to do this is unclear.
The father will continue to live in the Illawarra and the mother in Sydney. I am not confident if the father has orders to spend time with the two younger children on a fortnightly basis, he would avail himself of this opportunity. The two younger children would not easily cope with his failure to regularly take them. C would probably be upset while this would fuel E’s view about her father’s lack of commitment and parenting deficits. No less significantly, it would reinforce the mother’s negativity about the father. I am more confident the father would manage to collect the children monthly, which has the obvious advantage of avoiding the matters just discussed.
In terms of school holidays, subject to particular arrangements for the forthcoming school holidays, the general approach adopted by the ICL will be ordered. The reasons for so ordering have already been explained. I have varied the changeover times to make this easier and to thus maximise the father’s ability to arrive on time. It is also appropriate the children return in a little time before school resumes so that they prepare for the forthcoming term.
There are a series of injunctions which are self-explanatory. These are designed to ensure adequate information is passed between the parties without invoking further disharmony.
The father will have sole parental responsibility for J. In circumstances where the mother does not have an ongoing relationship with J and the parties do not communicate, any other outcome is untenable. I contemplated not making an order in relation to where J lives. However, it is far from fanciful that welfare and juvenile justice agencies, for example, will have a role in J’s remaining childhood. It will also be easier for those agencies to require J to live with the father if he has an order from this Court to that effect.
The parties’ chronic inability to communicate militates against an order they have equal shared parental responsibility for the two younger children. Such an order would merely hold the children hostage to their parents’ poor relationship and potentially delay necessary decisions. Post separation, the mother has made it almost impossible for the father to participate in decisions about the children and the dynamic between them indicates this is highly unlikely to change. For reasons I have already explained, I am satisfied these children should continue to reside with the mother and spend time with the father. Although the time the children spend with him could be considered less than substantial and significant, in the unusual circumstances of this case this outcome is in the children’s best interests. The orders proposed by the ICL did not make provision for variation to address special occasion such as Christmas Day, birthdays and the like. Nor do the orders I will make. Variations for special occasions may create confusion and further conflict. Because the parties live some distance apart variations would have the potential to cause travel to intrude too much into any special celebrations. Thus the children will spend special occasions with the party in whose care the orders place them.
The orders are final, not interim. I see little benefit to the children in prolonging this already lengthy litigation. I do not agree with the submission made by counsel for the ICL there is benefit in the Court’s continuing scrutiny of compliance with its orders. Court scrutiny over the past years has been remarkably unsuccessful and I do not believe would be productive in the future. The children are aware and, E at least, feels burdened by the litigation. It is time for the stresses associated with this litigation to be brought to an end.
Both parents will be ordered, as a condition of other orders made in their favour, to ensure, in the father’s case, he and J (if her school recommends it) receive therapeutic assistance. In relation to the mother, she must attend the Counselling Services 1 program. Not only will this be to her benefit but also the children’s.
Finally, I wish to extend the Court’s gratitude to the ICL and her counsel. Although I have not, in the end, adopted their recommendation for interim orders, without their input the Court’s ability to determine the children’s best interests would have been even more difficult.
For these reasons I make the orders identified at the beginning of this judgment.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 April 2011.

Associate: S Mills

Date: 8 April 2011

[2011] FamCA 246

8 April 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness