Day and Dawson

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAY & DAWSON

[2016] FCCA 888

Catchwords:
FAMILY LAW – Parenting – where a 13 year-old refuses to have any contact with his father – where the child has been involved in counselling to assist him to reunite with his father for more than a year without effect – where the mother alleges a consistent pattern of verbal abuse from the father – where the father alleges that the mother has alienated the 13 year-old from him and that all altercations are the result of her irrational behaviour – whether the child ought to be ordered to further counselling with interim orders made rather than final orders being made now – whether the 10-year-old child who has been spending regular time with the father should spend an extra two nights per fortnight in his care.

Legislation:

Family Law Act 1975, ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3)

Mazorski v Albright (2008) 37 FLR 518
Tait & Dinsmore [2007] FamCA 1383
Godfrey & Sanders [2007] Fam CA 102

Applicant:

MR DAY

First Respondent:

MS DAWSON

File Number:

MLC 4056 of 2014

Judgment of:

Judge Small

Hearing dates:

13 and 14 April 2016

Date of Last Submission:

14 April 2016

Delivered at:

Melbourne

Delivered on:

19 April 2016

REPRESENTATION

Counsel for the Applicant:

Self represented

Counsel for the Respondent:

Ms Brand

Solicitors for the Respondent:

Hartleys Lawyers

ORDERS

All previous parenting orders in relation to the children X born (omitted) 2003 (“X”) and Y born (omitted) 2008 (“Y”) (“the children”) are hereby discharged.
The father and the mother shall have shared parental responsibility for the children.
The children shall live with the mother.
The father shall spend time with the child X only at X’s instigation when he is ready and comfortable to do so, and at such times and on such conditions as may be determined by the parties in consultation with X.
The father shall spend time and communicate with the child Y:
(a)during school terms from the conclusion of school (or 3:30 p.m. if a non school day) each Tuesday to 7:30 p.m.;
(b)during school terms from the conclusion of school (or 3:30 p.m. if a non school day) each Thursday to 6:00 p.m. on Saturday;
(c)for half the school term holidays on dates to be agreed and in default of agreement, the father’s time shall commence from the conclusion of school on the last day of term and conclude at 6:00 p.m. on the middle Saturday;
(d)for half of the long summer holidays each year on dates to be agreed between the parties and in default of agreement from 6:00 p.m. on the second Saturday of the school holiday period until 6:00 p.m. on the following Saturday and each alternate week thereafter until the commencement of the new school year;
(e)on Y’s birthday each year from 6:00 p.m. to 8:00 p.m. if it falls on a school day and from 3:00 p.m. until 9:30 p.m. (if the following day is a non school day) or 8:00 p.m. (if the following day is school day);
(f)on the father’s birthday each year from the conclusion of school until 7:30 p.m. if it falls on a school day and from 11:00 a.m. until 7:30 p.m. if it falls on a non school day;
(g)from 6:00 p.m. on the Saturday prior to Father’s Day until 6:00 p.m. on Father’s Day each year;
(h)for the (religion omitted) Easter weekend from 11 a.m. on Good Friday to 11:00 a.m. on Easter Sunday each year;
(i)for the (religion omitted) Easter weekend from 6:00 p.m. Easter Saturday until 6:00 p.m. Easter Sunday in 2017 and in each alternate year thereafter;
(j)for the (religion omitted) Christmas period each year:
(i)from 5:00 p.m. Christmas Eve to 5:00 p.m. Christmas Day in 2017 and in each alternate year thereafter;
(ii)from 5:00 p.m. on Christmas Day until 5:00 p.m. on Boxing Day in 2016 and in each alternate year thereafter;
(k)for the (religion omitted) Christmas period each year:
(i)from 5:00 p.m. on 6:00 January to 5:00 p.m. on 7 January in 2018 and in each alternate year thereafter;
(ii)from 5:00 p.m. on 7 January until 5:00 p.m. on 8 January in 2017 and in each alternate year thereafter;
(l)for New Year’s Eve from 7:00 p.m. on 31 December 2016 until 1:00 p.m. on 1 January 2017 and in each alternate year thereafter;
(m)for (religion omitted) New Year's Eve from 5:00 p.m. on 13 January to 1:00 p.m. on 14 January 2018 and in each alternate year thereafter;
(n)by telephone, Skype or other electronic means:
(i)between 5:00 p.m. and 5:30 p.m. on each Monday and Thursday during school holiday weeks when the child or children are in the mother’s care, with the father to place the call and the mother to ensure that the child Y is available to take the call and that he has access to a fully functioning, switched on and fully charged telephone and/or computer;
(ii)at other times when the children are in the mother’s care at the child or children’s instigation only, with the child to place the call, and, if necessary, the mother shall provide the child with a fully functioning, switched on and charged telephone or computer so that he can do so;
(o)at other times by agreement between the parties in writing.
For the sake of clarity, the father’s time with the child or children shall suspend on the following occasions if the children are otherwise in his care pursuant to these orders:
(a)from 5:00 p.m. on (religion omitted) Christmas Eve to 5:00 p.m. on Christmas Day in 2016 and in each alternate year thereafter;
(b)from 5:00 p.m. on (religion omitted) Christmas Day to 5:00 p.m. on Boxing Day in 2017 and in each alternate year thereafter;
(c)for (religion omitted) Christmas:
(i)from 5:00 p.m. on 6 January until 5:00 p.m. on 7 January in 2017 and in each alternate year thereafter;
(ii)from 5:00 p.m. on 7 January until 5:00 p.m. on 8 January in 2018 and in each alternate year thereafter;
(d)from 7:00 p.m. on 31 December 2017 until 1:00 p.m. on 1 January 2018 and in each alternate year thereafter;
(e)from 7:00 p.m. on 13 January until 1:00 p.m. on 14 January 2017 and in each alternate year thereafter;
(f)on the mother’s birthday from after school to 7:30 p.m. if it falls on a school day, and from 11:00 a.m. until 7:30 p.m. should it fall on a non school day;
(g)from 11:00 a.m. on (religion omitted) Easter until 11:00 a.m. on Easter Tuesday each year;
(h)for the (religion omitted) Easter weekend from 6:00 p.m. Easter Saturday until 6:00 p.m. Easter Sunday in 2018 and in each alternate year thereafter;
When the child or children are in the father’s care during school terms, the mother shall not contact them by any means save in circumstances of genuine emergency.
Save in circumstances of genuine emergency, in the weeks when the child or children are spending time with the father during the school term and long summer holidays, the mother shall be permitted to communicate with the children by telephone, Skype, text message or other electronic means only between 5:00 p.m. and 5:30 p.m. on Monday and Thursday, with the mother to place the call and the father to ensure that the child Y is available to take the call and that he has access to a fully functioning, switched on and fully charged telephone and/or computer;
The time the father spends with Y pursuant to paragraph 5(a) and (b) of these orders shall suspend during school holidays and shall recommence in the new school term as though the holidays had not intervened.
Neither party shall enrol the children in any extracurricular activity which takes place during the time the children are in the care of the other parent, and the enrolling parent shall be responsible for any fees or expenses involved with any extracurricular activity.
Changeovers shall occur at the children’s schools where appropriate, and otherwise at the McDonald’s restaurant on the corner of (omitted) and (omitted) (“the restaurant”) on the following terms and conditions:
(a)the parent taking delivery of the child or children shall attend at the restaurant ten minutes prior to the changeover time and shall wait for the child or children inside the restaurant;
(b)the parent delivering the child or children shall pull up as close to the restaurant door as is possible, and shall not leave his or her vehicle;
(c)the child or children shall then enter the restaurant, wave to the parent delivering them to indicate that the other parent is present, and remain inside the restaurant with the parent to whom they are being delivered for the next ten minutes before leaving the restaurant;
(d)the parent delivering the child or children shall leave the vicinity of the restaurant immediately upon the child or children indicating that the other parent is present inside the restaurant.
Neither party shall be present in the room with the child or children when they are communicating with the other party pursuant to orders 5(n) and 8 hereof.
The parties shall communicate about the children’s requirements, any illnesses the children have suffered while in their care, any future appointments of the children, any news about the children’s achievements, any proposal for extended or changed time and like issues through the use of a communications book which shall travel with the child or children, and the parties are hereby restrained by injunction from:
(a)writing such messages in an aggressive, critical or abusive manner; and
(b)using the communications book to communicate with the other party about any other matter.
In circumstances of genuine emergency only, the parties shall communicate by text message or email.
The parties be and are hereby restrained by injunction, by themselves their servants and agents from:
(a)denigrating, criticising, rebuking, abusing, or belittling the other parent or any member of the other parent’s household or family in the presence or hearing of the children or either of them;
(b)discussing any issues in relation to court proceedings to, with or in the presence or hearing of the children or either of them;
(c)contacting the other save in accordance with these orders;
(d)following, placing under surveillance or otherwise harassing or stalking the other;
(e)allowing the children or either of them to see, read or otherwise access any document filed in these proceedings, including but not limited to Affidavits, reports, these orders, and the court’s Reasons for Judgement, save to explain to them the operation of paragraphs 1-6 and 11 of these orders;
(f)allowing any third party to engage in conduct prohibited by subparagraphs (a) to (e) hereof.
The mother shall be at liberty to provide a copy of the Family Report of Dr L dated 29 February 2016 (“the Family Report”) to her personal counsellor or therapist.
The mother and the father shall be at liberty to provide a copy of the Family Report and the court’s Reasons for Judgment to any therapist who may be treating X from time to time.
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

AND THE COURT NOTES
A.That the mother has advised the court this day that she believes X to be in need of counselling and that she intends to engage a suitably qualified professional to assist him in that regard.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4056 of 2014

MR DAY

Applicant

And

MS DAWSON

Respondent

REASONS FOR JUDGMENT

Introduction

These very sad and rather difficult proceedings concern the care arrangements for two children: X who was born on (omitted) 2003 (“X”); and Y who was born on (omitted) 2005 (“Y”) collectively (“the children”).
The children’s parents are Mr Day (“the father” or “Mr Day”) and Ms Dawson (“the mother” or “Ms Dawson”).
The parties are agreed that Y, who has lived with his mother and spent regular time with his father since the parents separated in April 2013, should continue to spend that time, although the mother made a late application to the court at the end of the trial that the structure of that time be amended.
The issues before the court in relation to Y are first whether he should continue to spend time with his father from after school until 7:30 p.m. each Tuesday during school terms, or whether his time should extend to the commencement of school the following morning; and second whether he should spend each Thursday to Saturday or each alternate Thursday to Monday with his father.
The situation in relation to X is far less straightforward.
X has not spent time with his father since late 2014, when Mr Day arrived at a school Christmas event when X was not expecting him to be there and there was an incident between the parents. He has consistently and persistently told multiple therapists that he has no interest in spending time with his father and indeed has refused to do so despite engaging in therapy aimed at resolving his fixed views in that regard.
The only real issue for determination in relation to X’s care is whether the court should order him to engage in further therapy for approximately six months with a view to him and the father recommencing time together, order the appointment of an Independent Children’s Lawyer and adjourn the proceedings for at least that six month period; or whether the time between X and his father should recommence only at X’s instigation with these proceedings being concluded now.

Background

The parties began living together in 2000 and were married on (omitted) 2001. They separated finally on 1 April 2013, when Mr Day was removed from the family home by Victoria Police, and were divorced on 2 December 2014.
X and Y are the only children of the marriage.
The relationship between the parties is reported on both sides to have been volatile, with multiple periods of separation. The mother alleges serious emotional, verbal and psychological abuse against her by the father, who she says denigrated and criticised her aggressively at every turn.
The father, while conceding that the relationship had been volatile, alleges that the cause of that volatility was the mother’s irrational and aggressive behaviour.
The parties are of (nationality omitted) and (nationality omitted) background respectively, although both were born in Australia. The father is 41 years old and the mother is aged 39 years.
Mr Day lives with his parents and other family members in his parents’ home, while Ms Dawson lives in the former family home with the children.
Mr Day is unemployed and Ms Dawson works in an almost full-time capacity for a (employer omitted).

Procedural History

These proceedings were commenced when Mr Day filed an Initiating Application on 11 February 2015.
In that Application, Mr Day sought parenting orders for both children such that they would live with their mother and spend time with their father during school terms from each Thursday at 6:00 p.m. to each Saturday at 6:00 p.m., and on each Tuesday from after school until 7:30 p.m., for half school holidays, and on birthdays and special occasions.
Ms Dawson filed her Response on 3 March 2015, seeking orders for Y essentially in similar terms to those sought by the father, but in relation to X seeking only an order that “the father spend time with X as per the child’s wishes, when the child feels ready and comfortable to do so.” She also sought orders for the father to undergo random drug testing and for his time with Y to be suspended and all further time to be supervised, should he return a drug screen showing that he had used illicit drugs.
The parties first appeared before me in the duty list on 11 March 2015 where both were represented by counsel, and interim orders for Y’s care were made by consent.
Those orders provided for X to spend time with his father “at such times as may be agreed between the parties with the mother to facilitate and encourage X to spend time with the father at times when Y is spending time with the father”. It was noted at that time that at the next hearing the father intended to seek an order in relation to his time with X such that it would coincide with his time with Y.
The consent orders of 11 March 2015 also restrained both parties by injunction from “denigrating, criticising, rebuking, abusing the other parent or any member of the other parent’s household or family” and from “discussing any issues in relation to court proceedings to, with or in the presence or hearing of the children”.
Pursuant to s.11F of the Family Law Act 1975, the parties were ordered to attend a Child Inclusive Conference with a family consultant on 7 April 2015, and the matter was adjourned to 29 April 2015 for Directions.
On 29 April 2015, with the assistance of a memorandum prepared by the family consultant, the court was again able to make orders by consent between the parties and the matter was set down for trial on 13 April 2016 with orders made for the preparation of a full Family Report.
The trial began on 13 April 2016 with the father appearing in person and the mother represented by her solicitor acting as counsel.
Evidence was heard from the father, the mother, Dr L, the family consultant who had prepared the family report (“Dr L”), and Dr A, a child psychiatrist who had seen X for Court-ordered reportable counselling (“Dr A”), and all witnesses bar Dr A were cross-examined.
The trial concluded on 14 April 2016 and I indicated to the parties that I would make orders the following day. On 15 April 2016 I made final orders and advised the parties that I had prepared a written judgment which would be published the following week. This is that judgement.

The Evidence

The Father’s Evidence

The father’s evidence is contained in three Affidavits filed with the court[1] and in his oral evidence at trial.
[1] The Affidavit of the father sworn 10 February 2015 and filed 11 February 2015; the Affidavit of the father sworn and filed on 2 April 2015: and the Affidavit of the father sworn and filed on 11 April 2016.
The father’s first two Affidavits were prepared by and sworn before his then solicitor, while he prepared his final Trial Affidavit himself.
In his Affidavit material the father alleges ongoing verbal and emotional abuse against him and the children on the part of the mother who, he says, “has embarked on a hatred campaign against me since we separated”[2].
[2] The Affidavit of the father sworn 10 February 2015 and filed 11 February 2015:00 paragraph 10.
He deposes that the mother has abused and harassed him via telephone calls and Skype interactions, that she has put him under surveillance, that she has made prank calls to his telephone, and that she has been aggressive and abusive towards him in the presence of the children.
His view of X’s refusal to see him is set out in paragraph 11 of his first Affidavit as follows:
The mother’s aggressive behaviour towards me is often in the presence of the children. They understandably become visibly upset and agitated when one of her tirades begins. As the mother engages the children, especially X in her poisonous tirades against me, X is now developing a completely one-sided view as he is not spending any time with me at all and has no opportunity for him to just enjoy being with his father and to dispel the negative myths he is being subjected to about me. I am very concerned that X in particular requires the protection of court orders to stop this behaviour from the wife and to enable me to resume a relationship with my older son.

He says that he believes that the mother’s behaviour is the result of mental health issues and that there had been times during the relationship when both the police and the Crisis Assessment Team had been called to attend upon her.
He says that the mother reacts in a hysterical fashion when she is upset and that she has threatened suicide on multiple occasions[3]. It is his evidence that the mother became estranged from her family following an incident when she and her sister were involved in a physical altercation after he had asked two of her sisters to assist him in dealing with the mother’s irrational behaviour.
[3] I note that threatening suicide is a form of family violence pursuant to the Family Violence Protection Act 2008 (Vic)
Mr Day deposes that in the period following separation the mother had sent him several text messages indicating that he should take the children as she was unable to look after them anymore.
An example of one of those text messages was received on Christmas Day 2013, in which the mother said:
I’m going out for some air. Please don’t bring the kids home. Mr Day please, if you have any sense do not bring the boy’s home tonight. I’m ringing my uncle and cancelling tomorrow. I can’t do this any more. I’m sorry Mr Day, I can’t do this to me or the boys anymore. They’re happy with you so take them and look after them.
Later on the same day it is the father’s evidence that he received this message:
Take me to my grave. Cause that’s what you signed up for. Bye Mr Day you look after my previous (sic) boys.
Mr Day also deposes to the mother having sent multiple emotionally manipulative messages to the children while they were both with him. One of many examples included in his first Affidavit sets out the following:
U are both online every day and nite. I guess you don’t want to contact me or even speak to me. Or ur dad is stopping you from talking to me like he always does… Don’t worry about me, it’s okay just be happy and live with ur dad. I can’t keep upsetting myself any more. I love u very much and when you grow up u’ll understand how much it hurts not to be able to talk to ur kids.… I will not keep trying every nite to call u just to get upset trying.
The father deposes that the mother’s behaviour places pressure on the children and is the cause of X’s decision not to spend time with him.
In his Affidavits, Mr Day acknowledges that the children have been exposed to altercations between him and the mother, mostly consisting of verbal abuse. He says that he has tried to ensure that the children are not exposed to the dispute between him and the mother, but that it has been impossible to protect the children “due to the mother’s constant interference with my communication with the children”.
In a rather rare insightful moment Mr Day deposes that:
I say that X has unfortunately chosen to reject me to protect himself from being subjected to further disputes between the mother and I. The mother and I need to take responsibility for our behaviour and work together to provide 2 homes that the children where both feel safe and loved.
He then goes on to say: “ It is important the court understands the level of hostility the mother has towards me and how this impacts upon the children,” before summarising seven Skype, telephone, and voicemail messages, and multiple text messages which he says provides evidence of her inappropriate and aggressive behaviour.
An example of a text message sent to the children by the mother is set out at paragraph 27 of Mr Day’s second Affidavit:
This just isn’t fair, I tried to call u boys on Skype, on ur dad’s phone and he keeps blocking my calls, I tried (omitted) phone and about 30 times on ur dad’s phone, I am soo angry with ur dad, this just isn’t fair, 3 days I haven’t spoken or seen you since Thursday morning, it’s killing me inside and its ur birthday X and i won’t get a chance to spend any time with u. U were not scared of the police the other day and u heard what she said that ur dad cannot come to the house. Why r u letting your dad do this to me.
And later:
And X, I hope u have a very happy birthday eve tomorrow and I’m sorry I can’t spend ur birthday with u to give you ur birthday present. And as daddy said I won’t see u until next Monday when I pick you up from school.
Another exchange by text between Y and his mother is also set out in Mr Day’s second Affidavit as follows:
Y: don’t sell the house
Ms Dawson: I going to loose (sic) my job
Y: no you ant (sic) going to loose (sic) your job
Ms Dawson: yes I will, your dad taking me to court means I loose (sic) my job
None of that evidence was questioned at trial. In fact none of the father’s evidence about the mother’s rather hysterical and histrionic behaviour was challenged at trial, and I accept that the transcripts and screenshots provided by the father in his Affidavit material reveal inappropriate, highly manipulative and emotionally abusive messages sent by the mother to the children since separation.
In his Affidavit sworn and filed 2 April 2015, Mr Day expresses concerns about the fact that X alone has been seeing a counsellor. In another rare insightful moment he says:
I say that we need an experienced family therapist that can assist matters. Indeed, it is my strong view that the problems originate from the parental conflict and how the children are then embroiled in the conflict.
At trial, the father was self-represented, having chosen not to engage counsel.
His evidence about what orders ought to be made was somewhat unclear and ambivalent.
He said he did not want to pressure X, and while he understood that X didn’t want to go to counselling, and indeed he himself did not wish X to be forced to go to further counselling, he would like orders to be made for X to spend time with him after he had been engaged in further therapy.
While he acknowledged that the toxic relationship between him and the mother was necessarily partly his responsibility, he used every possible opportunity to place further blame on the mother, and appeared to lack insight about the reality of his own participation in their highly toxic and dysfunctional relationship.

The Mother’s Evidence

The mother’s evidence is found in two Affidavits, the first sworn and filed on 3 March 2015 and the second sworn and filed on 8 April 2016.
She deposes to being diagnosed with cervical cancer in 2000, and to having a relapse of that illness in late 2013, although she has been declared to be free of cancer since February 2014.
It is her evidence that the father was unsympathetic during the period of the relapse, refusing to be flexible about the children’s arrangements, and withholding the children from her. She was also critical of the father for having told the children about her relapse in December 2013, and deposes that she was dealing with her own feelings and had found it difficult to talk to the children about her condition.
She also deposes to a long history of verbal and emotional abuse on the part of the father and concedes that she had at times responded in an inappropriate manner.
She says that the father only applied for an Intervention Order against her in retaliation for the one made against him at the instigation of Victoria Police at the time of separation, although in her first Affidavit she admits that she had yelled at the father on the telephone and said inappropriate things to him in the presence of the children.
Ms Dawson deposes to the father harassing her, saying that she had had to change her telephone number in February 2014 due to a prank calls being made to her from a private number “at all hours of the day and night”.
It is Ms Dawson’s evidence that X’s relationship with his father had been deteriorating since 2014 when X had told her that he wanted to spend less time with him. She says that when she tried to discuss that issue with the father, he blamed her for X’s reluctance and would not otherwise discuss the issue.
She expresses her concern about how X might react if he is forced to spend time with his father saying that he had said that if he were forced to see Mr Day he would “run away and kill himself”.
She admits that the CAT Team had been called to assist her in 2008 as a result of her behaviour, but says that they assessed her as being capable to continue caring for the children. She says that the CAT team recommended that she attend counselling “to make Mr Day understand and assist me with working through our past together”.
She denies that she is estranged from her family as a result of another incident of irrational behaviour, and says “I do not speak to my family anymore as my parents and sisters did not agree with me reconciling with Mr Day and believed that he had changed me as a person”.
She says that she sent inappropriate Skype and text messages and emails to the father and the children during the period when she had been re-diagnosed with cancer, and that she felt she had no support from the father at that time. She specifically denies sending the message “Bye Mr Day you look after my precious boys”.
It is her evidence that she had never threatened suicide, but that she had stated to the paternal grandmother words to the effect of “if my children aren’t in my life, I have nothing to live for”, and to the police: “that’s what Mr Day is waiting for, for me to kill myself”.
It is clear from her Affidavit evidence that she places the blame for any inappropriate behaviour on her part squarely at the feet of the father. She states several times words to the effect that she had done the right thing, that she had behaved appropriately, that she had not attempted to influence the children, and that any inappropriate behaviour on her part was a response to the fathers aggressive comments or behaviour.
She denies that she has ever had the father under surveillance or hacked into his email or Facebook account, saying that “I have never been computer or iPhone savvy”.
It is her evidence that she has “no issue” with the children having a relationship with their father, but that she is unable to force X to do so.
She sets out her version of the incident at the school Christmas Carols event in 2014 which was apparently the catalyst for X refusing to see his father thereafter. She says that the children had told him on that morning that they did not want him to attend that event, and that they were upset by the incident that occurred when he arrived. She says that for X that event was “the last straw so to speak” and that X had lost trust in his father as a result.
In her trial Affidavit sworn and filed 8 April 2016 the mother says that as a result of these proceedings X has seen three separate counsellors to assist him in reconnecting with his father to no avail.
In addition, he had attended a Child Inclusive Conference with a family consultant in 2014 and an interview for the Family Report in February 2016.
Ms Dawson says that X felt that he had been to see too many people and that he was hesitant to attend the Family Report interviews, telling her that he was “over all of these therapy sessions”. She says at paragraph’s 20 to 24 of her trial Affidavit:
20. My biggest concern is that X will receive too much therapy and in the end it will still not change his mind. I want what is best for X and that is to have a relationship with his father however I understand that X is only getting older and beginning to make more decisions on his own accord (sic).
21. I do not want to push X away from me by continuously encouraging him to see his father especially when X keeps telling me to “shut up and not talk about him”.
22. Over the last few months each time I encourage X to spend time with his father he gets angry with me and says “don’t you listen to me, does anyone listen to me, I don’t want to see him”. I find when I am silent and say nothing about the situation X is calm and his normal self. X does not have his guard up and does not have to be defensive when I am silent about the issue.
23. I feel the more I encourage X the angrier he gets with me which I feel will badly impact on our relationship when I do not say anything to X and go about our normal day, X opens up to me a lot more and is more trusting.
24. I do not want our relationship to break down by subjecting X to further court-appointed counselling. X is of an age where I want X to come to me for advice and tell me his issues instead of feeling I’m not listening to him by continuing to encourage him to see his father.
Ms Dawson disagrees with the recommendations of the family report, saying that she does not believe that X should be subjected to further court proceedings. It is her view that if these proceedings continue, and X is ordered to further therapy in order to reconcile with his father, X’s refusal to see his father will only become more entrenched.
At trial, Ms Dawson displayed an absolute inability to answer a question directly or to refrain from straying to other matters. It was clear that she wished to tell the whole story of her relationship and marriage to Mr Day in detail in order to justify her own position.
Like Mr Day’s view that she is to blame for the problems in their relationship, she blames him for all the ills of their relationship and its aftermath, saying that he had been bullying, abusive and domineering, and that he had eroded her self-esteem over many years.
She stated that she wanted to stop concentrating on the past and move forward, but she appeared incapable of making any statement without being highly critical of the past behaviour of the children’s father.

The expert evidence

In addition to the Child Inclusive Conference memorandum and the Family Report prepared for these proceedings, the court was provided with the report of Dr A, the child psychiatrist who had seen X for several months in 2015 for reportable counselling as ordered by the court.
X had also seen Ms C, a counsellor who, I believe, he had first seen at his school, between March 2013 and mid-2015, and Ms P, a family therapist who saw members of the family for 7 sessions in 2015, but none where all members of the family were present. Ms P apparently ended that therapy because it was not progressing, and she recommended that X see a child psychiatrist for further therapy.
It would appear that X lost trust in Ms C after he had gained access to his father’s Affidavit which mentioned his father’s conversations with Ms C, feeling that Ms C had betrayed his confidence. I cannot find any report from Ms C in the court’s file, although Dr L who prepared the family report states that Ms C had told her that she believed that there was still the possibility for a continuation of her therapy with X or, in the alternative, with another therapist who she could recommend.
A report from Ms P dated 16 July 2015 is annexed to the father’s trial Affidavit sworn and filed 11 April 2016. While that report was never filed in admissible form, I note it was Ms P’s view that the therapy she conducted had been “sabotaged by the interactions between Ms Dawson and X in the week preceding the 19^th June”.
The Family Report, dated 29 February 2016, sets out the history of the relationship and marriage, during the great majority of which the parties lived with the father’s parents in their home.
Dr L reports the mother as describing a relationship where she had “never felt heard”, and where she had “felt violated, scared and unable to talk”.
She reports the father is saying that the marriage had broken down because the mother had lied to him when he confronted her about an affair he alleged she was having.
Dr L states that: “the parents find themselves both acknowledging they no longer have any answers to resolve the situation” in relation to X’s refusal to see his father.
The Department of Health and Human Services was involved with the family for an unspecified period of time until January 2015. Dr L reports that the protective worker allocated to the family had stated that: “It is our opinion that, while Mr Day clearly loves his son X and is missing him, in the long term we do not believe it would be helpful for X’s relationship with his father if X feels “forced” to see his father given his current expressed wishes”.
Dr L reports the parents as being highly critical of each other and says she had to encourage Mr Day to focus on his role in the interview rather than criticising the mother. In response to that request Mr Day had answered “there is a reason why nothing changed with all the counsellors, the mother’s influence”.
He later told Dr L that he believed that all the professionals who had been involved with his family that he had met believed that the mother’s influence was a major factor in X’s decision not to see his father.
X was absolutely adamant in his discussions with Dr L that he would not see his father at all for the purposes of the Family Report, saying “I’m not staying when he’s here, I’ll wait in the car”. He said that he did not trust or respect his father, that he has blocked his father’s number from his mobile phone and his computer and that did not want his father to know his new number.
He told Dr L that he had been happy that his father had only attended the Mass involved in his graduation from primary school and not the family dinner that followed it because “he might have started yelling at Mum, he’s done it before at school functions like soccer and football training”.
He stated that he did not want to see members of his paternal family because he feared that they would try to pressure him to make contact with his father. He said further that if he were forced by court order to see his father he would run away and hide at a friend’s house.
Dr L states that Y’s presentation was very different to X’s in that Y was much more relaxed and he seemed happier with his life.
Y told Dr L that he did not know why the parties were conducting changeover at a police station but described that situation as “curious”. While he said that he would prefer changeover to happen at his parents’ homes, he was afraid that the parties would fight, appearing to blame that possibility on his father. It was Y’s view that if his parents didn’t fight they could conduct changeover at the McDonald’s restaurant near (omitted) Shopping Centre as it was roughly equidistant between their homes and they had used it to change over on previous occasions.
He clearly expressed the wish to continue to spend time with his father but said that he wished that X would come with him. Dr L’s final comment about this matter was:
It was evident throughout the assessment that both parents have expressed love for the children X and Y, and both desire to spend time with them. However it was also evident that in this highly conflictual relationship, the parents’ inability to reach a shared understanding of what would be in both of the children’s best interests, appears reflective of a relationship where communication has significantly deteriorated over time to have reached its current state of no communication, or contact being desired by certain family members.
It was Dr L’s view, confirmed under cross-examination at trial that X ought to attend therapy for a further six months or so, after which further assessment of the situation ought to be made. She also recommended that an Independent Children’s Lawyer be appointed for the children, and that the Independent Children’s Lawyer should inform the court as to the appropriate timing of further court proceedings.
Dr A, the child psychiatrist who saw X for reportable counselling, wrote a report dated 14 January 2016. That report was not annexed to an Affidavit sworn by him, and in those circumstances he was contacted by telephone, sworn in and asked to adopt his report, which he did. Neither party wished to cross-examine Dr A.
Dr A’s involvement with X had ended in late 2015 when X had “fled” from his rooms and refused to return.
It was Dr A’s view, as stated in his report, that all pressure to spend time with his father should be removed from X, and he should be allowed to decide when it would be appropriate for him to reconnect with his father.

It was Dr A’s opinion that X would benefit from further therapy but that it did not need to be conducted by him.

The Law

The law in relation to parenting matters is set out in Part VII of the Family Law Act1975 (“the Act”).
Section 60B sets out the Objects and Principles underlying Part VII in the following terms:

Section 60B(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 and 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 develop.m.ent of their children.

Section 60B(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).

Section 60CA of the Act states that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC then sets out the considerations a court must take into account when deciding what orders might in children’s best interests.
There are two primary considerations set out in s.60CC(2), they being:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section (2A) of s.60CC then states that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
That is, the court must consider the need to protect children from physical or psychological harm as being more important than the benefit to them of a meaningful relationship with both parents.
The meaning of the term “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia since 2006, when this term was included in the Act.
In an oft-quoted passage from her judgment in Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 17:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationships between the children and their parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to the children, and Mr Day and Ms Dawson are able to “lead by example” in those relationships, then the benefit to the children in developing those relationships must be a primary consideration of the court in considering what is in his best interests.
Unfortunately, these parents have shown by their behaviour that they cannot communicate without anger, verbal abuse and histrionics. The example they set to their children is appalling, and while they have both said that they wish that situation to be different and they want their communications to be civil, neither is prepared to take responsibility for their current situation, preferring to lay all blame on the other parent.
That negative example cannot help but limit the meaningfulness of their relationships with the children in the terms set out by Cronin J in Tait & Dinsmore, and it almost certainly causes psychological harm to the children.
Section 60CC(3) then sets out 14 “additional considerations” to which I must have regard in deciding what orders to make in the children’s best interests, and I will consider each one in turn. Those considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X’s views could not be clearer: he does not wish to be forced to see his father. He is 13 years old and his views therefore carry some weight. In addition, he does not wish to be ordered to attend further therapy.
Ten-year-old Y’s view is that he wishes his relationship with his father to continue as it has since separation, and there is no evidence before the court to say that it should not do so.
Y also expressed a wish that X would join him during the times he spent his father’s care.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
What is clear in this case is that both parents dearly love both the children.
Y appears to have a close and loving relationship with both parents, although there is some evidence of him having been influenced by his mother in terms of what he is happy to do when with his father. There is no evidence before the court that his relationship with his paternal family is other than appropriate.
X cannot be said at this stage to have anything but a negative relationship with his father. It is unclear to the court what actually lies behind his decision not to see his father, but it is very clear that X feels under enormous pressure in relation to that issue and that he feels unheard in these proceedings.
Because he has no current relationship with his father, his relationship with his paternal family has also been curtailed. X has said that he does not wish to see his father’s family because he fears that they would add extra pressure on him to spend time with his father.
X’s relationship with his mother is quite complex. There is evidence before the court that she has influenced and even manipulated his feelings about his father, and that she has actively involved both boys in her dispute with their father.
(c)    the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child
I said during the trial that the parties impressed me as not being able to agree that the sky was blue. Nevertheless, historically each appears to have been able to participate in making decisions about the children’s major long-term issues such as their religious practices, the fact that they live primarily with their mother, and the schools they attend. They have even been able to participate in and agree on the time that Y spends with his father.
Unfortunately, that appears to be the extent of their ability to agree on what is best for their children, and particularly on what is best for X.
Of course that is not to say that they, and particularly Mr Day, have not tried to ensure that they both spend time and communicate with the children, but only that, for reasons that appear to be beyond conscious motivation, they have been unable to ensure that X has an ongoing relationship with his father.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Ms Dawson supports the children while they live with her, including paying private school fees for both boys. However, she says that she may not be able to continue to do so into the future, and the children may have to change schools as a result.
Mr Day pays child support pursuant to an Assessment issued by the Department of Human Services (Child Support). He asserts that he also pays for other expenses such as extracurricular activities. He has Y in his care for two nights and one evening each week and he provides for Y’s support at those times.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
X is currently separated and indeed estranged from his father, while Y is not. What that means is that when Y is with his father, X is separated from Y and from his paternal family who have been significant figures in his life.
If X is forced to spend time with his father, there is a real risk that his feelings about him will become even more entrenched, and his distress heightened.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live in neighbouring suburbs and there does not appear to be any particular practical difficulty or expense involved in the children spending time and communicating with either parent.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
There is no evidence to suggest that either party lacks capacity to provide for the material or intellectual needs of the children, although the mother complains that the father is sometimes unable to assist Y with his homework.
However, on the basis of the evidence before it, the court has considerable concerns about both parties’ ability to meet their children’s emotional needs.
The mother has involved the children in disputes with the father at every turn, sending them inappropriate and manipulative messages, and engaging in verbal disputes with Mr Day in the children’s presence on an ongoing basis.
For his part, Mr Day has also involved the children in the dispute by engaging in verbal abuse of their mother in their presence.
His inability to clearly articulate, when asked, what he thought he had to offer his children in terms of meeting their emotional needs, causes the court some concern.
Unless both parties are willing to let go of their anger toward each other and move on with their own emotional lives, they will continue to damage their children emotionally and psychologically and will be utterly unable to meet the children’s emotional needs.
Both parties have expressed a wish to do so. It is to be hoped that they will, perhaps with the assistance of psychological professionals, as that change of circumstance can only be of benefit to the children. However, their contempt and apparent hatred for each other is deeply entrenched and it will take more than the expression of a wish for things to change.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The most mature member of this family in the court’s view is Y, its youngest member. He knows what he wants and is able to articulate it, he has insight into the dynamics of the family and is able to see things from other members’ points of view, and he is able to conduct his relationship with his father despite X’s refusal to have any relationship with him at all.
However, there is some evidence that Y too is being influenced by the mother’s feelings about the father, and that is a cause of great concern to the court. Y must continue to have regular and frequent time with his father and the mother must stop trying to influence what happens when Y is in his father’s care.
It is the immaturity of the parties, and their inability to move beyond the vitriolic antagonism they feel for each other, that is at the centre of this dispute.
The sex of the children is also significant in these proceedings. X is entering puberty and is likely to need a clear male role model as he makes his way through his adolescence. The same will be true for Y as he grows older.
It is encouraging that there does not seem to be a dispute between the parties in relation to the traditions of their ethnic backgrounds or religious matters.
X is anxious and angry at the position in which he finds himself. He is said to be much more sensitive child and less emotionally robust than Y. He feels under enormous pressure and that is a major concern to the court.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This factor is not relevant in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is not in doubt in these proceedings that both these parents love the children dearly and, consciously at least, want only what is best for them.
However, the constant conflict between the parties, and the fact that the children have been involved in and exposed to that conflict, and indeed have lived with it all their lives, reflects very badly on both parents in relation to the performance of their responsibilities as parents.
Unless Mr Day and Ms Dawson can set aside their differences and their grievances about their past relationship and act as mature adults and parents to these two children, the children will grow up with an unclear sense of their place in the world and an intractable difficulty in pursuing their own positive relationships as adults.
(j) any family violence involving the child or a member of the child’s family
Both parties have committed family violence, predominantly in the form of verbal and emotional abuse. Neither appears able to control him or herself when he or she comes in contact with the other parent. Not only have the children been exposed to and involved in that family violence, they have lived with it every day of their lives.
X and Y have grown up in a family where it is normal for parents to abuse each other in the most vigorous terms. Their mother says that the father’s behaviour in that regard diminished her self-esteem over many years. She seems to have little insight into the effect of her own sometimes irrational behaviour on either the father or her children, and the father too displays little understanding of the effect of his behaviour on his children and their mother.
Court orders cannot change a person’s personality, but I will craft orders which to the greatest extent possible protect both X and Y from the toxic relationship that exists between their parents.
(k)     if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii)     the circumstances in which the order was made;
(iii)   any evidence admitted in proceedings for the order;
(iv)    any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter
At the time of separation Victoria Police removed Mr Day from the family home and applied for an Intervention Order against him on behalf of the mother.
Since that time, there have been several applications for Intervention Orders made by both parties and they currently have mutual Intervention Orders against each other.
As far as the court is aware, none of those Intervention Orders has been made after a contested final hearing.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These proceedings have been on foot for a little over two years. In that time the children have been assessed by two family consultants and have attended a further three counsellors/therapists between them, although only X has had to attend all five.
The mother argues that these proceedings should conclude now. She says that she disagrees with the family consultant’s view that X should undergo a further six months of therapy before any decision is made in the court, adopting rather the view of Dr A that X ought be able to come to his own decision about if and when to spend time with his father.
The father says that while he does not wish to force X to either attend therapy or to see him, he would be content for the court to make orders that do just that. He says that the court should appoint an independent children’s lawyer, and order a further six months of therapy for X, followed by a regime whereby his time with X would begin slowly and then expand until he is seeing X at the same times as he sees Y.
It is difficult for the court to know which option would be least likely to lead to further proceedings, but on the evidence before me, I am more persuaded by the view of Dr A.
(m) any other fact or circumstance that the court thinks is relevant.
X is under enormous pressure to spend time with his father. His mother states that she has encouraged him to do so, but all the evidence indicates that she has undermined his relationship with his father, whether consciously or unconsciously, and it is clear that X feels under siege in these proceedings and that his views are not being heard nor his feelings taken into account.
I also take into account the fact that three separate experienced counsellors, including a child psychiatrist, have worked with X in an attempt to help him resolve his feelings about his father so that his relationship with him can be recommenced. None of those skilled professionals has been able to get X to a point where he is prepared even to meet with his father, let alone to spend time with him.
When I take all the matters in section 60.CC set out above into account, I cannot find that it is in X’s best interests for him to be subjected to further Court-ordered therapy which is focused on repairing his relationship with his father.
Neither can I find that it is in either child’s best interests for these proceedings to continue. They and their parents need some space, without the stress of court proceedings hanging over them, in order to be able to take a step back, breathe deeply, and, in the case of the parents, to carefully consider their own behaviour and the effect that it is having on their children.

I will therefore make orders for Y to spend time and communicate with his father in very similar terms to the consent orders agreed by the parties in the course of the proceedings.
The father had sought that Y stay with him an extra night each week, that being the Tuesday night which Y currently spends with his father from after school until 7:30 p.m. Mr Day says that having Y stay overnight would simply make it easier for both him and Y as Y has everything he needs at his home and he would not have to go out to return to his mother at 7:30 p.m.
The mother opposed that application, saying that all Y’s school books and other requirements were at her home.
We do not have Y’s views on that matter as he was not asked during the family report interviews.
However, I did ask Dr L what she thought of that proposal and she was very firm in her view that there should be no change to current arrangements at this time. She said that Y was used to the current arrangements and there was no reason to change them, especially in the volatile circumstances surrounding X’s relationship with the father.
Y is ten years old and in Year 5 at school. The more stability he can have in his life, the more he will be able to enjoy it. I will therefore not make an order that he spend an extra overnight with his father each week.
However, I will make an order that Y spend time with his father at times other than those specified in the orders by agreement between the parties. That will allow for flexibility in circumstances where the parties might come to agreement in the future about extra or differently configured time that Y spends with his father.
I will make orders that X spend time with his father only when he feels ready and able to do so, and that that time be determined as agreed between the parties with input from X and any counsellor he is then seeing.
I will not make orders for X to engage in further therapy. That is not because X would not benefit from such therapy, but because if it is Court-ordered, any therapy that X engages in would carry the taint of these proceedings for him.
The mother has indicated that she would not object to a Notation to the orders made to the effect that she has told the court that she intends for X to engage in such therapy because she believes that he needs someone to talk to. That therapy will be for X’s sole benefit and will not be specifically related to his relationship with his father or to restoring a regime of time with his father.
That will take the pressure off X so that he can explore his feelings and work towards a time when he feels more comfortable and relaxed in the world. That may or may not lead to him deciding to spend time with his father, but what is clear to the court is that it is most unlikely that X will decide to spend time with his father while he is under the pressure he is currently experiencing.

Conclusion

These two young boys deserve better parenting than they have been receiving.
The impression gained of their parents is that they are two immature, self-focused individuals who at some level see their children not as individuated people with their own needs, views and experiences, but as extensions of themselves.
Until they learn to be parents, which involves putting their own needs and feelings aside for the sake of their children’s well-being, X and Y’s emotional and psychological development are at considerable risk.

I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 19 April 2016

[2016] FCCA 888

19 April 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness