DEMARCHIS & DEMARCHIS
[2010] FMCAfam 540
•13 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEMARCHIS & DEMARCHIS | [2010] FMCAfam 540 |
| FAMILY LAW – Contravention Application – Wife found to have contravened the orders of the court without reasonable excuse and such contravention to be of a serious nature – Wife ordered to enter into a Bond for two years. FAMILY LAW – Parenting – Parental responsibility where parents have highly conflicted relationship and children are estranged from their father – ordered equal shared parental responsibility to reinforce the importance of the father’s involvement in the children’s lives – Ordered children recommence time with their father subject to his engaging in therapeutic counselling to assist him in addressing issues in relation to his parenting style and interactions with his children. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 70NAC, 70NAE, 70NAF, 70NDA, 70NEA, 70NFB, 70NG |
| Applicant: | MS DEMARCHIS |
| Respondent: | MR DEMARCHIS |
| File Number: | MLC 10400 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 5 & 6 May 2010 |
| Date of Last Submission: | 6 May 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 13 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Forte Family Lawyers |
PROCEDURAL ORDERS
The wife have leave to withdraw the Child Support component of her Amended Application filed 6 April 2010 and to file any such further Application in relation to Child Support on or before 10 August 2010.
CONTRAVENTION APPLICATIONS
On the Applications for Contravention of the husband filed 17 November 2008 and 1 July 2009 and upon hearing the husband and the wife:
(a)the court being satisfied the wife has committed a contravention of the orders under the Family Law Act 1975 affecting children (being contraventions of the orders made in the Federal Magistrates Court on 8 May 2002 and 24 February 2009);
(b)the wife not having proved that she had a reasonable excuse for the contraventions referred to in (a) above;
(c)a court having jurisdiction under the Family Law Act 1975 having previously determined that the wife has, without reasonable excuse, contravened orders made by this court on 8 May 2002; and
(d)the court being satisfied that Subdivision F of Division 13A of Part VII of the Family Law Act 1975 applies to the contraventions referred to in (a) above
IT IS ORDERED THAT
Pursuant to section 70NFB(2)(b) of the Family Law Act 1975 the wife enter into a Bond in accordance with section 70NFE of the Family Law Act 1975 for a period of two years with a surety of $3,000.00 to be of good behaviour and to comply with all orders of the Federal Magistrates Court made this day.
The husband is to provide to the Chambers of Federal Magistrate Bender and serve the wife with written submissions pursuant to section 70NFB(2)(g) as to the payment of his costs relating to the Contravention Applications filed by him within 14 days.
The wife is to provide to the Chambers of Federal Magistrate Bender and serve the husband’s solicitors with her answering written submissions as to the payment of the husband’s costs relating to the Contravention Applications filed by him within 14 days of service upon her of the husband’s written submissions.
PARENTING ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children of the marriage [Y] born [in] 1995 (“[Y]”) and [Z] born [in] 1999 (“[Z]”).
[Y] and [Z] live with the wife.
Subject to the husband’s compliance with order 10 herein and upon him providing to the wife the written confirmation provided for in order 11 herein, [Y] and [Z] spend time and communicate with the husband as follows:
(a)from 10.00 am to 4.00 pm each alternate Sunday for a period of six visits;
(b)
thereafter each alternate weekend from 10.00 am Saturday to
4.00 pm Sunday for a period of six visits;
(c)
thereafter each alternate weekend from after school Friday to
4.00 pm Sunday;
(d)for two weeks in the long summer vacation commencing 2011/2012, commencing on 3 January;
(e)reasonably by telephone with the husband to telephone either of [Y] and/or [Z]’s mobile telephones directly; and
(f)as otherwise agreed between the husband and [Y] and [Z].
For the purposes of the time [Y] and [Z] spend with the husband pursuant to order 8 herein, save for when [Y] and [Z]’s changeovers take place at school, the husband shall collect and return [Y] and [Z] from and to the wife’s residence at the commencement and conclusion of his time with them.
The husband shall forthwith do all things necessary to commence one on one personal counselling with Men & Relationship Services provided by Child & Parent Services, 70 Altona Street Heidelberg West, telephone number (03) 9450 0900, [omitted] and to continue to attend such counselling as directed by his counsellor to develop better parenting strategies and insight to better assist him in his parental relationship with [Y] and [Z]. The husband is to provide his counsellor with copies of these orders, the Family Report of Mr B dated
13 February 2009 and of the judgment of Federal Magistrate Bender published on 13 July 2010.
The husband is to provide to the wife written confirmation from Men & Relationship Services that he has commenced the counselling as provided for in order 10 herein and has attended for the first two session with his counsellor.
The wife is restrained from telephoning either of [Y] and/or [Z] whilst they are spending time with the husband pursuant to order 8 herein.
When [Y] and [Z] are spending time with the husband pursuant to orders 8(a), (b), (c) and (d) herein, the husband shall ensure that he facilitates either of [Y] and/or [Z] attending any sporting or extra-curricular activities in which they are regularly involved.
Each party is free to be fully involved in the school lives of [Y] and [Z], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party shall advise the other of any serious illness or injury suffered by either of [Y] and/or [Z] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [Y] and [Z] or any of them, and from permitting any other person so to do.
AND THE COURT NOTES
(A)Any future Applications between these parties relating to [Y] and [Z], save for any Child Support Application, is to be listed before Federal Magistrate Bender.
IT IS NOTED that publication of this judgment under the pseudonym Demarchis & Demarchis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10400 of 2008
| MS DEMARCHIS |
Applicant
And
| MR DEMARCHIS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the very unfortunate ongoing dispute between the parties relating to their children’s relationship with their father with whom they have not spent time since August 2008.
Orders were made by consent on 8 May 2002 (“the 2002 orders”) which provided for the parties’ children [X] born [in] 1991 (“[X]”), [Y] born [in] 1995 (“[Y]”) and [Z] born [in] 1999 (“[Z]”) to live with the wife and spend time with the husband each weekend from 4.00 pm Saturday to 5.00 pm Sunday, for half of the term holidays, two weeks in the summer vacation and on special occasions including birthdays, Christmas, Father’s Day and Easter.
In 2005 the husband filed a Contravention Application alleging
10 breaches of the 2002 orders. On 15 July 2005 Federal Magistrate Walters found the wife had contravened the orders without reasonable excuse and ordered that she attend a post-separation parenting program pursuant to section 70NG(1) of the Family Law Act 1975 (“the Act”).
On 17 November 2008 the husband filed a further Application for Contravention alleging 10 breaches of the 2002 orders.
On 17 December 2008 the wife filed an Initiating Application seeking the suspension of the 2002 orders, and that the children continue to live with her and spend time with their father in accordance with their wishes.
On 24 February 2009 Federal Magistrate Riley made interim orders for [X], [Y] and [Z] to communicate with their father by telephone each Wednesday at 7.00 pm. The orders provided for the husband to ring the children on their mobile phones and for the wife to ensure the children’s phones were charged, were in credit and that she:
“encourage and facilitate the children’s participation in the telephone calls.”
The orders of Federal Magistrate Riley also restrained the wife from taking the children to see any psychologist without the husband’s consent or order of the court. Her Honour did not suspend the 2002 orders.
On 1 July 2009 the husband filed a further Application for Contravention alleging three breaches of the 2002 orders and 10 breaches of the orders made on 24 February 2009.
The matter came before me on 13 July 2009. Orders were made consolidating all applications, listing them for mention in
December 2009 and otherwise referring the parties and the children to attend therapeutic counselling to:
“attempt to deal with the issues relating to the care of [X], [Y] and [Z].”
On 7 December 2009 the court was advised that the therapeutic intervention had not taken place as the children did not wish to attend and the matter was listed for final hearing.
At the final hearing of the matter the husband indicated he wished to pursue his Applications for Contravention as it was his submission that it would be the only way the wife would comply with the court’s orders into the future.
I determined that the matter would proceed on the basis that the evidence as to the Contravention Applications would be heard first, followed by the evidence relevant to the wife’s Application for variation of the 2002 orders.
In respect to the wife’s Application for variation of the 2002 orders, the wife filed an Amended Initiating Application on 6 April 2010. In that Application, in addition to children’s orders, the wife sought orders in relation to child support matters. This aspect of her Application was not in a proper form. The wife was given leave to withdraw that aspect of her Application and given leave to file an Amended Application if she chose to do so, at a date subsequent to the determination of the Contravention and parenting matters in the appropriate form. These orders were not opposed by the husband.
In respect to the husband’s Applications for Contravention, the wife conceded the children did not spend time with the husband pursuant to the 2002 orders but said there was a reasonable excuse for her
non-compliance with those orders. She denied any breach of the
24 February 2009 orders.
In relation to the Application for variation of the parenting orders, the wife seeks that she have sole parental responsibility for [Y] and [Z] ([X] now being 18 years of age), that they live with her, that they spend time and communicate with the husband in accordance with their wishes and that the husband otherwise be able to send them cards, letters and presents.
The husband seeks the parenting orders be varied so that he spends each alternate weekend with [Y] and [Z] from after school Friday to 5.00 pm Sunday, for two weeks in the long summer vacation and telephone communication. He seeks an order that when [Y] and [Z] are with him, the wife be restrained from telephoning them.
The husband also seeks that the order for equal shared parental responsibility remain.
Background
The husband was born [in] 1966 and is 43 years of age. He is employed as an [omitted]. He has not re-partnered.
The wife was born [in] 1965 and is 44 years of age. She is employed as an [omitted]. She has not re-partnered.
The parties were married [in] 1989 and separated on 30 September 2001. They divorced on 21 November 2002.
As noted previously in this judgment, the parties entered into consent orders in May 2002 which provided that they have equal shared parental responsibility and for [X], [Y] and [Z] to live with the wife and spend time with the husband each weekend, for holiday periods and on special occasions.
The children did not spend time with the husband between April and July 2005 and as a result the husband filed a Contravention Application with the court. The wife was found to have contravened the orders without reasonable excuse and was ordered to attend a post-separation parenting program. The decision of Federal Magistrate Walters in relation to the Contravention Application was handed down on 15 July 2005.
After the determination of the husband’s 2005 Contravention Application the children recommenced spending time with the husband in accordance with the 2002 orders.
Since 23 August 2008 the children have not spent time with the husband.
It is the husband’s evidence that this is because of the wife’s failure to comply with the court’s order and her ongoing undermining of his relationship with the children.
It is the wife’s evidence that the children do not want to spend time with the husband because of his behaviours and attitudes towards them and that they are old enough to have their wishes respected.
Both parties concede they do not communicate and wish to avoid any interaction with the other into the future.
Contraventions
Section 70NAC of the Act sets out the meaning of contravention of orders and is set out as follows:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Section 70NAE of the Act sets out the meaning of reasonable excuse for contravening an order. The relevant sections to the Contraventions before this court are:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(5)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Under section 70NAF of the Act, the standard of proof to be applied when determining whether a person has either contravened an order or if they did so, whether they had a reasonable excuse to do so is on the balance of probabilities.
It is my intention to deal with the Contravention Applications in turn.
Contravention Application filed 17 November 2008
| Contravention | Order | Date | Alleged Contravention |
| Count 1 | Order 5.2.1 of orders made on 8 May 2002 | 15 March 2008 | The wife failed to make the child [Z] available to spend time with the husband. |
| Count 2 | Order 5.2.1 of orders made on 8 May 2002 (as amended by agreement) | 23 August 2008 | The wife failed to make the child [Z] available to spend time with the husband. |
| Count 3 | Order 5.2.1 of orders made on 8 May 2002 (as amended by agreement) | 7 September 2008 | The wife failed to make the children available to spend time with the husband. |
| Count 4 | Order 5.2.1 of orders made on 8 May 2002 | 13 September 2008 | The wife failed to make the children available to spend time with the husband. |
| Count 5 | Order 5.2.2 of orders made on 8 May 2002 | [date omitted] 2008 | The wife failed to make the children available to spend time with the husband on the birthday of the child [X]. |
| Count 6 | Order 5.2.1 of orders made on 8 May 2002 | 20 September 2008 | The wife failed to make the children available to spend time with the husband. |
| Count 7 | Order 5.2.6 of orders made on 8 May 2002 | 24 September 2008 | The wife failed to make the children available to spend time with the husband on the school holidays. |
| Count 8 | Order 5.2.1 of orders made on 8 May 2002 | 27 September 2008 | The wife failed to make the children available to spend time with the husband. |
| Count 9 | Order 5.2.1 of orders made on 8 May 2002 | 4 October 2008 | The wife failed to make the children available to spend time with the husband. |
| Count 10 | Order 5.2.1 of orders made on 8 May 2002 | 11 October 2008 | The wife failed to make the children available to spend time with the husband. |
Count 1
It was the husband’s evidence that when he attended at the wife’s residence on 15 March 2008 at 4.00 pm to collect the children, [X] and [Y] were there but [Z] was not available and he was told she was at a birthday party.
It was the wife’s evidence that [Z] was at a birthday party which the husband knew of and that she told [X] to ask the husband to wait if [Z] was a few minutes late. It was her evidence she and [Z] arrived home at 4.05 pm and the husband, [X] and [Y] had already departed.
Finding
A birthday party is not a reasonable excuse for a failure to comply with orders of the court. A child’s relationship with her father is of greater importance than a birthday party, especially one that was clearly concluding at a time that would enable the child to be home in time to go with her father. It is apparent the wife could have easily ensured she and [Z] returned in time for [Z] to be able to leave with her father and brothers.
I find the contravention proved.
In April 2008 the parties agreed, in writing, to vary the arrangements for the children’s time with the husband to 11.00 am Saturday to
11.30 am Sunday. This variation was to accommodate [X]’s soccer season.
Count 2
It was the husband’s evidence that when he attended at the wife’s home on 23 August 2008 to collect the children, only [X] and [Y] presented themselves. [Z] was in the house but did not come out.
It was the wife’s evidence that [Z] did not want to go with the husband on that date, despite the fact that she tried to encourage her to do so. It was her argument in those circumstances she had “reasonable excuse” for not complying with the orders.
Finding
At the time of this alleged breach, [Z] was only 9 years of age. Whilst she may have been reluctant to go with her father, her mother as her primary carer had the responsibility to ensure that [Z] spent time with her father in accordance with the orders. [Z]’s reluctance to go with her father is not a “reasonable excuse” for the wife’s non-compliance with the orders.
I find the contravention proved.
Counts 3 & 4
It was the husband’s evidence that the weekend of 6 September 2008 also included Father’s Day. Pursuant to the 2002 orders, the children were to spend from 10.00 am until 6.00 pm on Father’s Day with the husband. It was his evidence that he attended at the wife’s home at 11.00 am on the morning of Saturday 6 September 2008 in the expectation of having the children through to 6.00 pm the following day being Father’s Day. It was the husband’s evidence that he knocked on the door on several occasions and that the wife’s car was not in the driveway.
On the weekend of 13 September 2008 it was the husband’s evidence that he again attended at the matrimonial home to collect the children for the weekend, he knocked on the door and no-one answered and again the wife’s car was not in the driveway.
It was the wife’s evidence that on 5 September 2008 [Z] told her that she was scared of her father and that she did not want to spend time with him that weekend. It was the wife’s evidence that [X] and [Y] also indicated to her that they did not want to spend time with their father and that they suggested they should all get in the car and leave the home so that they would not be there when the husband attended to pick them up.
It was the wife’s evidence that she agreed to this course of action, that the children got in the car and that the boys put the destination of Rye into the car’s “Sat Nav”. The wife deposed that they then travelled to Rye so that they would not be at her home when the husband attended in accordance with the orders.
It was the wife’s evidence that she believed the children were scared of their father and that they did not want to spend time with him, and that in those circumstances it was reasonable for her to not comply with the orders.
It was also the wife’s evidence that the children had been advising her for some time that they did not wish to spend time with their father and that in August 2008 she had attempted to arrange for the parties to attend mediation in order to discuss this issue and try to resolve alternate arrangements for the children. It was her evidence that she attended the [omitted] Mediation Centre who contacted the husband and he declined to attend mediation with her.
The husband conceded that he had been invited to attend mediation, but that he had declined the request as he couldn’t see the necessity for same as at the time of the request he was seeing the children in accordance with the court orders.
Finding
The wife has a positive obligation to encourage and support the children’s relationship with their father. Rather than encouraging the children to discuss any issues that they might have with their father directly with him, the wife actively supported the children in their negative views of him. This is clearly borne out by her agreeing to drive the children to Rye rather than insisting that they see their father and spend time with him. The children’s reluctance to spend time with the husband is not a reasonable excuse for the wife’s non-compliance with the court orders.
I find the contraventions proved.
Count 5
[Date omitted] 2008 was [X]’s birthday and the orders provide that the children spend three hours with the husband on that day from after school. It was the husband’s evidence that he sent a letter to the wife [one week prior] saying he would collect the children at 6.00 pm for [X]’s birthday and return them at 9.00 pm.
It was the husband’s evidence that he had no response to this correspondence and that when he attended at the wife’s home to celebrate [X]’s birthday, he knocked on the door and there was no answer.
It was the wife’s evidence that [X] said he didn’t want to spend time with the husband and that as he was 17 years old, she believed this was a choice he was entitled to make.
Finding
The wife had a positive obligation to encourage [X] to spend some time with his father on his birthday. Whilst it is conceded that at 17 years of age [X] has a major say in that decision, the wife should have ensured that [X] at least communicated his wishes to his father and not absented herself and the family from the home. [X]’s reluctance to spend time with the husband is not a reasonable excuse for the wife’s non-compliance with the court orders.
I find the contravention proved.
Counts 6, 8, 9 & 10
It was the husband’s evidence that on the weekends of
20 September 2008, 27 September 2008, 4 October 2008 and
11 October 2008 he attended the wife’s home, knocked on the door but there was no answer and he formed the conclusion that there was
no-one at home.
It was the wife’s evidence that the husband did not attend at the former matrimonial home on any of these occasions.
Finding
In relation to the contradictory evidence, I prefer the husband’s evidence as he was most open to the court in advising of his
non-attendance to spend time with the children on other occasions. I am satisfied that the husband did attend at the wife’s home and knock on the door on each of these weekends in order to spend time with the children. I am satisfied that either the wife and/or the children were not home when the husband attended or, if they were, they did not respond to his knocking on the door.
I find the contraventions proved.
Count 7
The September 2008 school holidays took place between
19 September 2008 and 6 October 2008. The orders provided for the children to spend the first half of the holidays with the husband. It was the husband’s evidence that because of his work commitments he could only have the children for five days in the first half of the holidays, being from Wednesday 24 September 2008 until Sunday 28 September 2008. It was his evidence that he sent a letter to the wife in those terms, indicating that he would collect the children at 10.00 am on
24 September 2008. It was the husband’s evidence that on that day he attended at the wife’s home, knocked on the door and that no-one was home. It was his evidence that he spoke to his son [X] later that day and that [X] advised him that the wife had taken all of the children to the beach for the day.
It was the wife’s evidence that the husband did not come to the home on that occasion.
Finding
I am satisfied that the wife did not make the children available to the husband in accordance with the orders for the school holidays and that she failed to communicate her intentions not to do so with the husband. I am also satisfied there was no reasonable excuse for the wife’s
non-compliance with the court order.
I find the contravention proved.
Contravention Application filed 1 July 2009
| Contravention | Order | Date | Alleged Contravention |
| Count 1 | Order 5.2.5 of orders made on 8 May 2002 | 24 February 2008 | Wife failed to make children available to spend time with the husband |
| Count 2 | Order 5.2.1 of orders made on 8 May 2002 | 27 December 2008 | Wife failed to make children available to spend time with the husband |
| Count 3 | Order 5.2.1 of orders made on 8 May 2002 | 31 January 2008 | Wife failed to make children available to spend time with the husband |
| Count 4 | Order 6.3 of orders made on 24 February 2009 | 25 February 2009 | Wife failed to make children available to communicate with the husband. |
| Count 5 | Order 5 of orders made on 24 February 2009 | 25 February 2009 | Wife failed to encourage and facilitate the children’s participation in telephone communication with the husband. |
| Count 6 | Order 3 of orders made on 24 February 2009 | 4 April 2009 | Wife failed to make children available to communicate with the husband. |
| Count 7 | Order 5 of orders made on 24 February 2009 | 4 April 2009 | Wife failed to encourage and facilitate the children’s participation in telephone communication with the husband. |
| Count 8 | Order 3 of orders made on 24 February 2009 | 11 April 2009 | Wife failed to make children available to communicate with the husband. |
| Count 9 | Order 5 of orders made on 24 February 2009 | 11 April 2009 | Wife failed to encourage and facilitate the children’s participation in telephone communication with the husband. |
| Count 10 | Order 3 of orders made on 24 February 2009 | 18 March 2010 | Wife failed to make children available to communicate with the husband. |
| Count 11 | Order 5 of orders made on 24 February 2009 | 18 March 2010 | Wife failed to encourage and facilitate the children’s participation in telephone communication with the husband. |
| Count 12 | Order 3 of orders made on 24 February 2009 | 25 March 2010 | Wife failed to make children available to communicate with the husband. |
| Count 13 | Order 5 of orders made on 24 February 2009 | 25 March 2010 | Wife failed to encourage and facilitate the children’s participation in telephone communication with the husband. |
Count 1
It was the husband’s evidence that subsequent to the first return date of this Contravention Application on 17 December 2008, the wife’s solicitors wrote to him confirming that he was to spend time with the children from 5.00 pm on 24 December 2008 until 3.00 pm on Christmas Day and then again from 4.00 pm on 3 January 2009 until 5.00 pm on 18 January 2009.
It was the husband’s evidence that when he attended at the wife’s home on 24 December 2008 to collect the children, he rang the door bell, [Y] and [Z] came to the door and [Y] said to him in a small voice that they did not wish to see him. It was the husband’s evidence that he asked to speak to the wife which he did. It was his evidence that he reminded her that she had a positive obligation to encourage the children to come with him, but that it was her response that they did not wish to see him. It was the husband’s evidence that the wife began yelling at him and that she slammed the door in his face.
The husband gave evidence that he then went to the Police Station and that, at his request, a Police Officer rang the wife’s home after which time he was advised that the children would not be coming with him.
It was the wife’s evidence that the children did not wish to go with the husband and that they told him so in person. It was her evidence that she invited him into the home to discuss this matter with the children but that he refused to do so. The wife denied yelling at the husband or slamming the door in his face.
Finding
I am satisfied that the wife did not encourage the children to spend time with their father for Christmas. Whilst I am satisfied the wife invited the husband to enter her home, I am of the view that the husband declined to do so as he believed it would cause further distress to the children and he did not want to “drag the children out”. I am satisfied that the wife did yell at the husband and slam the door in his face. Further, the children’s reluctance to spend time with the husband is not a reasonable excuse for the wife’s non-compliance with the court orders.
I find the contravention proved.
Count 2
It was the husband’s evidence that the 2002 orders do not suspend the normal weekend time that he spends with the children during school holidays and that in previous years his time with the children on weekends had continued through the long summer vacation. Accordingly, he attended at the wife’s home on 27 December 2008 in the expectation that the children would spend the weekend with him. It was his evidence that [Y] answered the door, he looked sad and said that he could not come with him. It was the husband’s evidence that he suggested that [Y] go and ask his mother if he could come and that [Y] did so and then came back and told the husband that he was not allowed to go with him. It was the husband’s evidence that he asked to speak to the wife, who again indicated that the children didn’t want to see him, became angry and slammed the door in his face.
It was the wife’s evidence that the children did not wish to go with the husband, that they told him this and that she did not become angry, raise her voice or slam the door in the husband’s face.
Finding
It is the wife’s positive obligation to encourage the children to spend time with their father and I am satisfied that she did not do so. The children’s reluctance to spend time with the husband is not a reasonable excuse for the wife’s non-compliance with the court orders.
I find the contravention proved.
Count 3
It was the husband’s evidence that he did not attempt to spend time with the children after the incidents on 24 and 27 December 2008 because he was concerned about the impact on the children arising from the wife’s behaviour.
It was the husband’s evidence that he instructed his solicitors to write to the wife indicating that he would resume spending time with the children in accordance with the 2002 orders from the weekend of
31 January 2009. It was his evidence there was no response received from the wife in relation to that correspondence.
The husband gave evidence that on 31 January 2009 he attended upon the wife’s home, [Y] answered the door and told him that he did not want to come with him. It was the husband’s evidence he spoke to the wife who again yelled at him and slammed the door in his face.
It was the wife’s evidence that the children did not want to spend time with their father. She denied yelling at the husband or slamming the door in his face.
Finding
It was incumbent upon the wife to do all things within her power to encourage the children to spend time with the husband and I am satisfied that she did not do so.
I find the contravention proved.
Counts 4 & 5
It was the husband’s evidence that he telephoned [Y] and [Z] on Wednesday 25 February 2009 on 11 occasions, and that on each occasion the calls went through to a pre-recorded message that said that the call could not be connected and to please try the number again. In these circumstances, the husband was unable to speak to the children.
It was the wife’s evidence that the children’s mobile phones were with them, were charged and were turned on and that they did not receive any call from the husband.
Finding
On balance I am satisfied that the children did have their phones with them and that they were turned on. It is not possible to know why the calls went through to this pre-recorded message.
I do not find these contraventions proved.
Counts 6, 8, 10 & 12
It was the husband’s evidence that on 4 March, 11 March, 18 March and 25 March 2009 he telephoned both [Y] and [Z], who answered their phones and told him that they did not want to speak to him. [Y] and [Z] terminated the calls.
It was the wife’s evidence that she at all times ensured that the children had their phones with them and that they were charged, and that it was a matter for them as to what, if any, conversations they chose to have with the husband.
Finding
In these circumstances, I do not find these contraventions proved as I accept that [Y] and [Z] were made available to take the husband’s telephone calls.
Counts 5, 7, 9, 11 & 13
It was the husband’s evidence that the wife had not encouraged the children to engage in meaningful telephone conversations with him, which was evidenced by [Y] and [Z]’s indications that they did not wish to speak to him.
It was the wife’s evidence that she had encouraged the children to speak to their father and had told them that they should do so as they:
“would be safe in speaking to him on the phone rather than having to see him in person.”
Finding
Such comments of the wife cannot be seen to be in any way encouraging the children to have a relationship with the husband, and in fact can be perceived as the opposite in that the wife is clearly indicating to the children that she does not believe that they are safe with their father.
In these circumstances, I am satisfied that the wife did not encourage the children’s participation in telephone communication with their father and I find these contraventions proved.
Conclusion in relation to the Contravention Applications
Having determined that the wife has contravened the orders of this court without reasonable excuse, the next step is to determine what orders should be made arising from her contravention of the court’s orders.
Subdivision E of Division 13A of Part VII of the Act sets out the sections applicable where a contravention has been found to take place without reasonable excuse and it is deemed to be a less serious contravention.
Subdivision F of Division 13A of Part VII of the Act sets out the powers of the court where a contravention has been found to have taken place without reasonable excuse and is deemed to be a more serious contravention.
It was submitted by the husband’s Counsel that the court should consider the contraventions by the wife to be more serious. It was argued that Subdivision F of the Act should apply because of the previously proven contravention of the wife and because the current contraventions have resulted in the termination of the children’s relationship with the husband.
The wife made no submissions as to whether any breaches should be deemed more serious or less serious.
Whilst the Act gives no clear definition as to what constitutes a more serious or less serious contravention, guidance can be taken from section 70NEA(4) which provides as follows:
(4)This Subdivision (being contravention without reasonable excuse – less serious contravention) does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
The wife came before Federal Magistrate Walters in relation to an Application by the husband for contravention of the 2002 orders on
15 July 2005. On that occasion, it was the wife’s evidence that the children had not spent time with the husband as they did not wish to do so.
On that occasion His Honour found that the wife was in contravention of the orders and in that determination made it very clear to the wife that her explanations as to her contravention of the orders that the children did not wish to spend time with the husband, did not constitute a reasonable excuse under section 70NDA of the Act.
In the judgment of Federal Magistrate Walters delivered on 15 July 2005, His Honour at paragraph 10 stated:
“On the basis of the evidence that I have heard during the course of the hearing today and the matters contained in the wife’s affidavit and the correspondence from the wife, she places little weight upon these children having contact with their father.”
In paragraph 12 of his judgment, His Honour stated:
“In my view, the wife has not emphasised sufficiently to these children that it is in their best interests to spend as much time as possible with their father.”
His Honour’s observations in 2005 accord with my observations of the wife in 2010.
It is apparent from the wife’s evidence that she does not support the children’s relationship with their father and does not accept that she has a positive obligation to ensure compliance with the orders of this court.
The wife’s behaviour in actively encouraging the children to not spend time with their father by driving them down to the beach in the full knowledge that this would ensure they would not spend time with their father was particularly reprehensible.
In all these circumstances, I am satisfied that the contraventions that have been found should be dealt with pursuant to subdivision F of Division 13A of Part VII of the Act, being a more serious contravention in that she has “shown a serious disregard for her obligations under the primary order” and has done so for a second and a third time.
Where the court determines that a party has committed a serious contravention, section 70NFB(2) of the Act provides as follows:
(2) The orders that are available to be made by the court are:
(a)if the court is empowered under section 70NFC to make a community service order--to make such an order; or
(b)to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c)if the current contravention is a contravention of a parenting order in relation to a child--to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h)to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
Note:The court may also vary the primary order under Subdivision B.
The husband’s Counsel submitted that the court should make an order requiring the wife to enter into a Bond to ensure future compliance with the court’s orders. Orders were also sought that any future Contravention Applications be listed before me to
“stop the wife from re-hashing her complaints”.
The wife made no submissions as to penalty in the event she was found to have breached the orders.
I am of the view that the appropriate order to be made in these circumstances, and the one which will most encourage the wife to comply with the orders of the court into the future, is to require her to enter into a Bond pursuant to section 70NFE of the Act. Such Bond will be for a period of two years and in the event of a breach of the Bond shall require a payment by the wife of a sum of $3,000.00.
Where a person has been found to have contravened an order without reasonable excuse and such contravention is deemed to be a more serious contravention, section 70NFB(1)(a) of the Act provides:
If this Subdivision applies, the court must, in relation to the person who committed the current contravention make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order.
Paragraph (2)(g) of section 70NFB provides:
The orders that are available to be made by the court are to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division.
Neither party made submissions to the court in relation to this issue.
As the parties now have my determination in relation to the Contravention Applications, the orders will provide for each party to provide to my Chambers, within 14 days, written submissions as to whether an order for the wife to pay the husband’s costs should be made in this matter. A determination as to this discrete issue will be made in Chambers and provided to the parties following receipt of their written submissions.
Parenting Orders
As set out earlier in this judgment, the wife filed an Initiating Application seeking the suspension of the 2002 orders and that orders be made that the children live with her and spend time with the husband in accordance with their wishes.
On 6 April 2010, the wife filed an Amended Initiating Application in which she additionally sought orders for sole parental responsibility for [Y] and [Z], noting [X] is now 18 years of age.
At the final hearing of this matter the husband clarified that he too sought the 2002 orders be amended so that [Y] and [Z] spend alternate weekends with him from after school Friday to 5.00 pm Sunday and for two weeks in the long summer vacation, as well as regular telephone communication.
The husband opposes the wife’s Application for sole parental responsibility and further seeks orders that the wife be restrained from telephoning [Y] and [Z] when they are in his care.
The wife’s evidence
It is the wife’s evidence that [Y] and [Z] do not want to spend time with the husband and that she believes they are old enough to make this decision and have this decision respected by her.
It was the wife’s evidence that the children are scared of the husband. They have complained to her that when with him they are bored, they have to do what he wishes and he does not engage with them or allow them to attend any social or other events that they have through school and other social interactions when they are in his care. It was her evidence that the children claim the husband does not properly feed them and that she has to cook for them when they come home to her.
There was an incident in 2006/2007 when [Z] had a loose baby tooth whilst in the husband’s care. It was the wife’s evidence that [Z] rang her severely distressed saying that the husband had locked her in the bathroom and told her not to come out of the bathroom until she had pulled her loose tooth out.
It was the wife’s evidence that during the marital relationship, the husband had been violent towards her and that this behaviour had been witnessed by the children.
It was the wife’s evidence that the husband had shown little or no interest in the children since separation and this was evidenced by the fact that he had only ever attended one parent-teacher interview and that otherwise he had no interactions with any of the children’s schools whatsoever.
The wife also gave evidence that the husband had not attended any of the children’s sporting events or supported them financially in these pursuits. She indicated that the husband had consistently challenged Child Support Assessments and that this was indicative of his lack of concern for the children.
The wife described the husband as aggressive, short-tempered and as someone who had never put the children’s best interests first. She described him as a bad provider, both financially and emotionally, and that he had never been there for the children in the marriage or out of the marriage. The wife has the strong view that the husband is a poor father and that he does not have the capacity to develop a meaningful relationship with his children because of the kind of person that he is.
It was the wife’s evidence that she has, over the years, tried to encourage the children to have a positive relationship with their father, but that his ongoing lack of interest and participation in their lives has resulted in the children making the decision that they no longer wish to spend time with him.
When challenged as to whether she had in any way undermined the children’s relationship with the husband because of her clearly-held negative views of him, the wife was adamant that she had not influenced the children in any way and it had been their decision solely.
The husband’s evidence
It was the husband’s evidence that he does have a good relationship with [Y] and [Z] and that they did enjoy the time that they spent with him prior to the breakdown of the relationship in August 2008.
The husband categorically denied perpetrating any violence during the marital relationship and it was his evidence that he was the victim of ongoing and sustained verbal and physical violence at the hands of the wife.
The husband denied the allegations that he did not properly feed the children when they were in his care. It was his evidence that he gave them proper nutritious meals as well as snacks between meals.
It was the husband’s evidence that he and the children did do fun things together, including going to the beach and fishing, as well as going down to the park to play.
In relation to the incident with [Z]’s tooth, the husband adamantly denied that he had locked her in the bathroom and told her that she couldn’t come out until she had pulled her tooth out. It was his evidence that she had a loose tooth that she said was hurting her and he had suggested she try and pull it out as that would stop it from hurting.
The husband’s evidence was the wife continually rang the children when they were in his care and that this interfered with and undermined the time the children were spending with him. The wife agreed she did ring the children and that she encouraged them to call her. She described this as the children’s “safety net” whilst they were in the husband’s care. It was her evidence that she had used this expression to the children and told them they could call her at any time they were with their father.
It was the husband’s evidence that the breakdown of his relationship with the children was as a direct result of the wife undermining that relationship. He did not concede that there was anything in his behaviours or parenting style with or towards the children that had contributed to the current difficulties.
Mr B
Mr B is a Regulation 7 Family Consultant who prepared a Family Report in this matter which was made available to the parties on
13 February 2009. Mr B also provided oral evidence at the final hearing of the matter.
In the Family Report prepared by him and released on
13 February 2009, Mr B’s summary sets out the following:
41.The present situation of the children not seeing their father appears to be the result of long-standing problems between Mr Demarchis and the rest of his family. While the children are aware of their mother’s negative feelings toward their father, they have independently made their own decisions about further involvement with him. [X], [Y] and [Z] have four-year age gaps between them but were able to explain in their own way why they do not enjoy spending time with their father.
42.Their information is consistent with their mother’s explanation of their father’s lack of involvement in their lives when they lived together as a family. There is strong animosity between Mr and Ms Demarchis, with each party discrediting the other as not having any positive qualities or strengths and blaming the other for being violent and controlling throughout the marriage. However since their separation, which occurred nearly seven and a half years ago, Mr Demarchis has had the opportunity to develop a relationship with the children independent to the poor relationship he had with his wife.
43.All three children have described Mr Demarchis as being selfish, rigid and not showing any interest in them. They do not believe he has tried to understand their needs and to create an alternative home environment where they can enjoy the company of each other. I believe Mr Demarchis has a contained and rigid style of parenting and relied on Ms Demarchis to provide virtually all of the parenting when they were together. He has had many opportunities since the separation to get to know the children as individuals and to respond to their needs.
44.It is possible that Mr Demarchis does not know any other style of parenting other than what he has displayed to the children and I am concerned that he might not be able to change or alter his long-standing pattern. He appeared to be genuinely distressed by not seeing the children but showed no insight into why they didn’t want to go with him other than to blame Ms Demarchis. As long as he attributes the children’s views to coming solely from their mother’s negative influence, I do not believe he will be open to learning new parenting strategies.
At the final hearing of this matter, Counsel for the husband
cross-examined Mr B at length as to the genesis of the breakdown of the relationship between the husband and the children, and in particular if there was a nexus between the breakdown of the relationship and the acknowledged negative views of the wife in relation to the husband in the circumstances where the wife has made no effort to shield the children from those negative views.
It was Mr B’s evidence that:
“I know that if the children are living with a primary caregiver, they are no doubt aware of that person’s views of the other parent. The issue is how much they absorb those views like a blank canvass, as to how much is some of their views and how much their views are combined with their parents’ views. It is always very individual and it depends on personality, age, the relationship that they have with the other parent.”
Mr B then went on to indicate that in his discussions with [X], it was his opinion that [X] had formed his own views. He indicated that whilst [X] was aware of his mother’s views, the things that [X] spoke to Mr B about were the issues that a young person of his age would have. His concerns were about not having a meaningful relationship with his father and his father not being interested in him as a person. Mr B indicated that [X] wasn’t talking about what the husband had been doing to his mother like some younger children might, but rather his issues were about himself as a person and the sort of relationship he would have liked to have had with his father but that he did not have.
Mr B was then challenged as to whether the views that had been formed by [X], [Y] and [Z] had been enhanced or influenced by the views of their mother.
It was Mr B’s evidence that:
“The father has had opportunity over a number of years in seeing the children up to 2008 to form a connection with all three of them that was positive so that they could work out ‘Well OK I know Mum’s views, but I’ve got my own take on Dad and this is what he’s like’. Then, I find what children do is try not to take sides and they try to deflect what one parent might be saying about the other.”
It was then Mr B’s evidence that all three children presented a very strong view in their own words of their individual times with their father and that was that he did not give them individual time and they saw him as a person who didn’t engage with them, who expected them to do things his way and that they didn’t feel comfortable with him.
Mr B indicated that he had interviewed all three children in their home over a four hour period and in his Report clearly sets out that each of the three children indicated that they did not wish to spend time with their father.
In relation to the wife, it was Mr B’s evidence that she had made it very clear to him that she was only supporting the children’s wishes rather than negatively influencing them. Mr B noted however that
Ms Demarchis was quite emphatic in her claims that the husband was not a fit parent and that she did not support the children having a relationship with their father.
In relation to the wife’s evidence that the husband had been violent to her and the children and that they were scared of him, it was Mr B’s evidence that:
“I don’t think that I picked up anywhere when I interviewed them (sic the children) that the word ‘scared’ was used or ‘fear’.”
It was Mr B’s evidence that the concerns raised by the children related to the husband’s lack of flexibility and lack of attention, his rigidity and detachment, in other words, the poor quality of the relationship rather than there being any issues around the children having any fear of him. It was Mr B’s belief that the issue for the children was the husband’s parenting style rather than allegations of violence or intimidation.
In the recommendations contained in his report of 13 February 2009, Mr B said the following:
45.I am unable to make a clear recommendation about how much time Mr Demarchis should spend with the children, as the children have clearly stated they do (sic not) want to see him under any circumstance and Ms Demarchis will not force them to do so. Until Mr Demarchis is able to address the concerns of the children regarding his detached and rigid parenting style and not displace the issue by solely blaming Ms Demarchis, I cannot see how reinstating existing Court Orders would help the situation.
Mr B was specifically asked by me as to the way forward for [Y] and [Z] in the context of being able to re-establish a relationship with their father in light of their current resistance to spending any time with him and in the circumstances of there being no support for that relationship given by the wife and where the children were fully cognisant of the lack of support coming from their mother.
It was Mr B’s recommendation that the husband undertake individual counselling to address the issues that were raised in relation to his parenting style as, in all probability, those issues relate to the sort of parenting that he received as a child. Mr B indicated the chances of counselling being successful would depend very much to the husband’s willingness to acknowledge that there are difficulties in his current parenting of the children and that there is a level of responsibility he must accept for the breakdown of the relationship. The husband would need to have a willingness to engage in counselling in order to change his current parenting style and show [Y] and [Z] that he is prepared to make changes in order to better his relationship with them.
It was Mr B’s evidence that if the husband is unable or unwilling to take on board what it is the children are saying in relation to their issues with him and take the positive steps necessary to assist him in addressing these issues, then in all probability [Y] and [Z] will continue to resist a relationship with him and the current stalemate will continue.
Mr B was also questioned as to what the wife could do to facilitate a reparation of [Y] and [Z]’s relationship with their father. It was Mr B’s evidence that the wife needs to be able to say to [Y] and [Z] words to the effect:
“You know how I feel about your father, but you have a right to have your own relationship with him. You need to form your own view about him. It’s really important, because he’s the only father you’ve got and you’ve got an opportunity now to do that and I want to support you in being able to see and talk to him.”
When this was being put to the wife, she intervened by saying:
“And of course I could say if you want to go you can go.”
In response to this statement from the wife, Mr B said that his recommendation went beyond that. He said the wife firstly needed to recognise that it is important for the children to have a relationship with their father and to then promote to them the importance of them making up their own minds as individuals about how they felt about their father, separate from any feelings that she may have about him.
Mr B was also asked as to whether the husband needed to pursue individual counselling prior to recommencing time with the children. It was Mr B’s evidence that the recommencement of time could and should commence whilst the counselling was taking place. It was his evidence that starting with telephone calls or cards and letters and building things up slowly, as suggested by the wife, would be of no assistance to the children, particularly after the two years that they have now not seen the husband. It was Mr B’s evidence that [Y] and [Z] need to start seeing their father to enable them to move on from their frozen snapshot of him. [Y] and [Z] have not seen their father for two years and, in these circumstances, they need to start seeing him again in order to enable them to form their own individual opinions of their father based on current rather than past experiences.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
Section 60ca of the Act provides that:
In 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 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
It is the wife’s application that she have sole parental responsibility for [Y] and [Z]. It is her submission that in the circumstances where there is absolutely no communication between herself and the husband, in circumstances where the children at least at this time are spending no time with him, and in circumstances where the husband has historically failed to participate in any of the decision-making involving the children or actively involving himself in their activities, that such an order should be made.
Such an order is opposed by the husband and he seeks that the current order for equal shared parental responsibility continue to remain in force.
It was submitted on the husband’s behalf that this matter is not one where an order for sole parental responsibility should be made and in particular given the attitude of the wife, this is not a message that [Y] and [Z] should be given.
It was also submitted on behalf of the husband that there would have to be concerns in relation to the wife having sole parental responsibility in the context of whether she would make decisions that were in the children’s best interests.
During the running of these proceedings, the wife unilaterally took the children to see a counsellor, primarily so that the children could tell the counsellor why they didn’t want to see their father so that evidence in this regard could then be placed before the court rather than for any bona fide therapeutic purpose. When this came to light, orders were made by me preventing the wife from taking the children to any further counselling without the written consent of the husband or an express order of the court.
Mr B made no recommendations in relation to parental responsibility nor was he questioned in relation to this issue when he gave his viva voce evidence.
The practicality for this family is that notwithstanding the existing order for equal shared parental responsibility, for most of the post separation period the wife has been the sole decision maker in relation to the children. The wife unilaterally made a decision to change [Z]’s school and has made all decisions about health care and other issues in relation to [Y] and [Z]. She does so without consultation with the husband and in circumstances where both parties give evidence that they do not wish to communicate openly with the other.
That this has been the practice does not of course necessarily mean that it is the outcome that is in the children’s best interests and that is the measure by which I must determine this issue.
One of the major complaints that [Y] and [Z] (and [X]) make about their father is their perception that he is not interested in their lives and their interests. To remove his responsibilities in the context of the decision-making for their major long-term issues could be seen as a confirmation by the court of the children’s belief that their father is not interested in their lives.
In these circumstances, I am satisfied that an order should be made that the parties continue to have equal shared parental responsibility for [Y] and [Z].
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent.
Section 65daa provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Neither party is seeking orders that [Y] and [Z] spend equal time with each of them.
The husband is seeking orders that [Y] and [Z] live with the wife and spend alternate weekends with him and two weeks in the long summer vacation.
The wife is seeking orders that [Y] and [Z] live with her and spend time with the husband in accordance with their wishes. Such an arrangement that makes provision for the children to only spend time in accordance with their wishes is not significant and substantial time with him as defined by the legislation.
Further, as the wife is of the strong belief the children do not wish to spend any time with him, she is in reality seeking an order that would mean “no time” with the husband.
When determining what arrangements should be put in place for the parties’ children, whether that be equal time, significant and substantial time or some other arrangement, the Act quite clearly sets out that the orders the court must make be in the best interests of the children. In order to determine what is in the children’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters set out in subsections 2 and 3 of section 60cc of the Act must be considered, where relevant, and assessed in the context of each of the parties’ behaviours and proposals, and a decision made as to which of those proposals, or such other proposal as the court may determine, will be in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[Y] and [Z] have a close and loving relationship with their mother and despite the husband’s belief that he did have such a relationship with [Y] and [Z], it is quite apparent that they did not consider their relationship with their father to be a close, loving and meaningful one.
[Y] and [Z] have not spent any time with their father for nearly two years and it is quite apparent that at this point in time that relationship is badly fractured.
The wife has a strong view that there is no benefit for [Y] and [Z] in having a relationship with the husband because of his aggression, temper, inability to put the children’s interests first or at all and his failure to provide any material or emotional support to them. She is of the view that this is his fundamental character and nature and that he is incapable of changing himself and his parenting style in order to be the father that the children need.
Mr B was questioned specifically as to what the impact would be on [Y] and [Z] (and [X]) if they weren’t given the opportunity to try and repair and develop a relationship with their father. It was Mr B’s evidence that the children’s current one-dimensional view of their father as someone who is wholly negative and who doesn’t have any positive attributes in circumstances where he is half of their make-up, half of the person from whom their identity will come will affect their sense of who they are as adults. Mr B’s evidence was that if they don’t have a sense of a positive relationship with both parents or a meaningful relationship then that will be detrimental to their sense of being an adult. It was Mr B’s evidence that when the children enter into adult relationships, the absence of a relationship with their father can be very negative on those relationships. Mr B indicated that particularly for [Z], the absence of a father figure will impact on her ability to form meaningful relationships into the future. He was therefore very strongly of the view that [Y] and [Z] must be given an opportunity to try and work on their relationship with their father.
The wife gave evidence that the husband was physically violent towards herself and the children during the relationship and that he had been negligent in the care of the children whilst they were spending time with him.
The children at no time made any complaints of physical violence at the hands of their father, though they did complain about not being able to have snacks between meals whilst they are in his care. There was also the “tooth incident” which appears to have become bigger in the minds of the children than its’ reality was.
It was Mr B’s evidence that the children were not fearful of their father and at no time made complaints to him of being physically abused by their father. When the matter was before the court in 2005, Mr P prepared a Family Report. It is of note that in Mr P's Report, the children (and the wife) make no complaint of physical abuse at the hands of the husband during or after the breakdown of the marriage.
I am satisfied that the children are not at risk of any physical harm or violence in the care of the husband.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and I will consider each of these in turn where relevant.
Section 60cc 3(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
It is quite apparent from the report of Mr B that the children are strongly expressing a view that they do not wish to spend time with their father.
It was Mr B’s evidence that this is in part largely informed by the negative experience that the children have had in their father’s care because of his lack of emotional availability and rigid parenting style. It is also in part as a result of the complete failure on the part of the wife to support that relationship.
[Y] is 14 and a half years of age and is reported to be somewhat developmentally delayed and needing assistance at school. However Mr B did not observe any issues in relation to [Y]’s maturity in his meeting with him and did not believe this delay impacted on [Y]’s capacity to express his own views.
[Z] is nearly 11 years of age at the time of writing of this judgment.
Accordingly, both children are of mature years and their views must be given some weight. However in the unusual and rather sad circumstances of this case, the children’s views will not necessarily be the determining factor in what is the best way forward for them.
Section 60cc 3(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)
As set out previously in this judgment, the children have a close and loving relationship with their mother and at this time a badly fractured and almost non-existent relationship with their father.
The real issue for this court is whether there is a way forward that will assist [Y] and [Z] in being able to re-establish that relationship with their father.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The findings in this matter in relation to the Contravention Applications filed by the husband arising from his failure to spend any time with the children pursuant to the 2002 orders make it quite clear that I have made a finding that the wife has not and does not facilitate the children’s relationship with the husband.
I am also satisfied that it is most unlikely that the wife will into the future be able to actively facilitate that relationship and that any orders that are made for [Y] and [Z] to spend time with the husband will need to be strictly enforceable.
Section 60cc 3(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
Not relevant.
Section 60cc 3(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
There are no practical difficulties in relation to [Y] and [Z] spending time with the husband.
Section 60cc 3(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
Whilst the wife made complaints about the husband’s care of the children in the context of properly feeding them, I don’t accept the accuracy of those complaints and I am satisfied that both parties are able to take care of the children’s physical needs.
The same cannot be said however of the emotional needs of the children.
I have already set out clearly in this judgment my concerns in relation to the inability of the wife to actively encourage the children’s relationship with the husband. Mr B has given evidence as to the possible long-term effects on the children in circumstances where that relationship is not a sound and positive one.
The husband, in his evidence, placed the entire cause of the breakdown of his relationship with [Y] and [Z] at the feet of the wife on the basis of her active undermining of that relationship.
It was very apparent from the evidence of Mr B that whilst the wife’s negative attitude towards the husband is a contributing factor to the breakdown of the relationship between the husband and the children, the root of the problem is the issues that the children have identified with their father and his parenting style.
Mr B made it quite clear that where there is a negative view held by one of the parents about the other, especially where that parent is their primary carer, this negative view can be countered and offset if the children’s experience of the parent who is not their primary carer is in stark contrast to the negative views that are taken by their primary carer.
In this instance, particularly as the parties have now been separated for some eight years, it was Mr B’s evidence that if over that period of time the children had independently formed a positive view of their father then they would have disregarded the wife’s negative comments about him. It was his evidence however that the reality for [Y] and [Z] is that they find their father to be rigid, disinterested in their activities, disinterested in getting to know them as individuals and failing to participate in their lives and the things that interest them.
In his evidence, Mr B described the husband as being quite passive and that was also apparent to me in the manner in which the husband gave his evidence.
A prime example of the husband’s passivity is his evidence that he had only ever once attended at [Y]’s school. It was his evidence that he had attended [Y]’s school in 2002 in the hope that he would be able to see [Y] and that the school had advised him that there was no provision in the then court orders for him to be able to do so. The husband then made no effort to go back to [Y]’s school. He made no effort to go to parent-teacher interviews and made no effort to seek to amend the orders so he was able to be actively involved in [Y]’s school.
The husband gave no evidence of ever attending parent-teacher interviews or other occasions in relation to either of [X] or [Z]’s schooling.
At one stage [X] was actively involved in soccer and, rather than attend [X]’s soccer games, the parties reached agreement that the husband would return the children earlier so the wife could take [X] to soccer. The husband’s explanation for this was as the wife was paying the fees, she wanted to attend [X]’s soccer games and didn’t want the husband there. He could have volunteered to pay the fees so that he was the parent who attended the games. It is quite apparent that [X] would have liked his father to have been interested in what he was doing and make more effort to be involved in these activities.
It was also apparent from Mr B’s report, which the husband received some 15 months prior to the hearing of this matter, that the concerns and issues for the children were strongly felt by the children and went directly to his behaviours. Even so, in his evidence, the husband at no time acknowledged that there was anything he was doing that was contributing to the difficulties he was having in his relationship with his children. Nor was there any acknowledgment by the husband that there were behaviours and issues in relation to his parenting style that he needed to take responsibility for in order for him to be a better parent to his children.
Unless and until the husband accepts that responsibility for his behaviours and shows a willingness and preparedness to address those issues to the best of his ability, there has to be concerns about his capacity to meet the emotional and intellectual needs of his children.
Section 60cc 3(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
Not relevant.
Section 60cc 3(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;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents love their children. Both parents, in their own way, want what is best for their children. However, as has been set out in some detail in this judgment, both parents have to accept responsibility for their own behaviours and attitudes both towards each other and to their respective parenting styles that have resulted in the current breakdown of the relationship between [Y] and [Z] and their father.
It is therefore incumbent upon both parties to take on board the issues and concerns that were raised with them, particularly by Mr B in the giving of his evidence, and accept responsibility to change those aspects of their behaviour over which they have control.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
As set out previously in this judgment, the wife has deposed to violence committed against herself and the children by the husband during the course of the relationship and post-separation. This is adamantly denied by the husband.
Having considered the evidence and in particular the absence of corroboration of evidence of such violence by the children in their interviews with both Mr P and Mr B, I am satisfied that violence is not an issue in these proceedings.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(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
This is a very vexed issue in this case.
The initial orders for the arrangements for the children were made in 2002. There have been three subsequent Contravention Applications and there has now been a period of nearly two years where the children have not spent time with their father.
The wife has now been found on two occasions to have contravened these orders without reasonable excuse.
The identified difficulties in being able to repair the children’s relationship with the husband have been well identified in the course of this judgment and the court must have concerns that whatever orders it makes on this occasion, there are real risks that the relationship between the husband and the children may not be repairable and that there will be consequential court proceedings as a result of that.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
The way forward in this matter rests very much in the attitudes of the parents and in their ability to accept responsibility for their own behaviours. If, and it’s a big if, they accept that responsibility, they would then need to show a willingness to alter those behaviours.
Whilst this court can order counselling and other therapeutic interventions, unless the parties themselves are able to develop the necessary insights and embrace those interventions willingly and openly, there must be real concerns as to the efficacy of any orders that this court might make.
In relation to the issue of phone calls from the wife to [Y] and [Z] whilst with the husband, it is clear from the wife’s own evidence that these calls are clearly undermining the children’s time with the husband and reinforce to [Y] and [Z] the wife’s belief that they are unsafe in their father’s care. The wife will be restrained from calling [Y] and [Z] during any time [Y] and [Z] are with the husband.
Conclusion
This is a most complex, difficult and ultimately sad case.
The husband desperately wishes to re-establish a relationship with his children in circumstances where that relationship broke down some two years ago and in circumstances where, at least at this time, I accept that [Y] and [Z] are reluctant to engage with him.
Mr B, the Family Consultant who prepared an extensive Report and gave lengthy evidence in this matter, himself conceded that he was unable to make any clear recommendations as to how that relationship could be repaired and what would be appropriate orders in terms of the time that [Y] and [Z] should spend with their father.
What was abundantly clear from Mr B’s evidence was that unless the husband accepts the need for a change in parenting style and is prepared to undergo the necessary counselling and interventions to assist him in addressing the issues that give rise to that style, [Y] and [Z] will not embrace a relationship with him.
Similarly, the way forward for [Y] and [Z] in being able to have that relationship with their father will be greatly assisted if the wife gives the children permission to have that relationship, even in circumstances where she herself doesn’t believe that that would be beneficial for them because she has such a negative view of the husband as a father and as a person. The court has real reservations as to the capacity and willingness of the wife to give such permission.
I have formed the view that [Y] and [Z] should be given the opportunity to spend time with their father in order for them to determine for themselves whether that is a relationship that they wish to have.
Accordingly, I intend to make orders that make provision for such time to take place, but that it occur conditional upon the husband commencing therapeutic intervention to assist him in his parenting style and in circumstances where his counsellor is to be provided with a copy of the Report of Mr B and, most unusually, a copy of these reasons for judgment.
The issue for me is whether such orders be made on a final basis or make provision for review in circumstances where there is such doubt as to the capacity of the parties to embrace the changes needed to give effect to the orders.
On balance, I am of the view that my orders should be final. This is because [Y] and [Z] need to have the clear message that the court has decided it is in their best interests to have a relationship with their father and that such decision is not subject to review.
I will however make orders that any future parenting Applications, including any Contravention Applications, in this matter are to be listed before me.
I certify that the preceding two-hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of Bender FM
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