DIH & MJH (No.3)
[2005] FMCAfam 501
•23 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DIH & MJH (No.3) | [2005] FMCAfam 501 |
| FAMILY LAW – Parenting – children 12 and 9 – expressing strong wishes regarding contact – Rice & Asplund issue – father self represented. |
| Family Law Act 1975 |
| H v W (1995) FLC 92-598 King v Finneran [2001] FamCA 344 Newling and Newling (1987) FLC 91-856 R v R (2000) FLC 93-000 Rice v Asplund (1979) FLC 90-215 |
| Applicant: | DIH |
| Respondent: | MJH |
| File Number: | PAM 3009 of 2004 |
| Judgment of: | Sexton FM |
| Hearing date: | 8 & 9 September 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 23 September 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Pye Lawyers |
| Respondent: | In Person |
| Solicitors for the Child Representative: | Legal Aid Commission of NSW |
ORDERS
All previous parenting orders in relation to the children of the marriage, MWH, born 2 February 1993 and SRH, born 28 February 1996, be discharged.
The children reside with the mother.
Each party have sole responsibility for making decisions as to the day to day care, welfare and development of the children whilst they are in that party’s care.
The parties have joint responsibility for making decisions about the long term care, welfare and development of the children.
MWH have contact with the father when MWH wishes.
SRH have contact with the father during school terms as follows:
(a)Each alternate Thursday from 6.00pm until 9.00pm;
(b)Each alternate weekend from 6.00pm Friday until 6.00pm Sunday.
SRH have additional contact with the father as follows:
(a)For the second half of each school holiday period [excluding the Christmas school holiday period] unless the father notifies the mother in writing at least 21 days prior to the beginning of contact that he does not propose to exercise contact.
(b)From 3.00p.m Christmas Day until 6.00p.m. Boxing Day each year.
(c)From 4.00p.m. until 7.00p.m. on SRH’s birthday.
(d)Unless otherwise agreed between the parties, during the Christmas school holidays for one weekend from 6.00p.m. Friday until 6.00p.m. Sunday and for one further period of 7 days, precise weekend and week to be agreed between the parties no later than 21 days prior to the end of Term 4, and failing agreement by that date, from the first Friday until the first Sunday in January and for the 7 days ending on the second last Sunday of the school holidays.
(e)On Father’s Day each year from 9.00a.m. until 6.00p.m. if a non-contact weekend.
(f)In the event Mother’s Day falls on a contact weekend, the father’s contact period to conclude at 9.00a.m. on Mother’s Day.
(g)At such other or alternate times as agreed between the parties.
Weekday and weekend contact be suspended during all school holiday periods and resume after each school holiday period as though there had been no interruption to such contact.
Contact changeover shall take place as follows:
(a)For the purposes of Order 6 (a) above, if either child is attending football training, the father shall collect SRH or both children from the training venue, otherwise the father shall collect SRH or both children from the mother’s residence and the father shall return SRH or both children to the mother’s residence at the conclusion of contact.
(b)For the purposes of Orders 6 (b) and 7 above, the father shall collect SRH or, if MWH also attends contact, the children from the mother’s residence at the commencement of contact and the mother shall collect SRH or the children from the paternal grandparent’s residence at the conclusion of contact except that if SRH or MWH, if he wishes to attend contact, is attending any sporting venue at the beginning of contact, the father shall collect SRH or both children from the sporting venue.
The father shall have liberal telephone contact with SRH between the hours of 8.00a.m and 8.00p.m each day and MWH shall be at liberty to telephone his father at any time.
Both parties shall ensure the children’s attendance at their weekend sporting events, including SRH’s Rugby League Football and if the sporting events for the children are at two separate locations on any day then the parent having the care of the children for that day shall give notice to the other parent and the other parent shall have the opportunity of taking one child to his sporting event on that day.
SRH shall continue to play rugby for his current team unless the parties otherwise agree.
In the event either child suffers an illness or injury such that either one or more of the following occurs:
(a)A child is absent from school for two consecutive days;
(b)A child is admitted to hospital;
(c)A child requires emergency medical treatment at hospital;
the party who has care of the child shall, as soon as practicable but in any event no later than 24 hours from the date of the event notify the other party of such illness, injury or admission to hospital and provide all consents for the other to obtain information regarding the child’s condition.
The mother provide to the children’s school all consents necessary for the school to forward directly to the father copies of all correspondence and applications for school photographs.
Each party be restrained from discussing these proceedings or matters which were at issue in the proceedings with the children or in the presence or hearing of either child or allowing any other person to do so.
Each party be restrained from abusing, insulting or otherwise denigrating the other party or a member of the other party’s family in the presence or hearing of the children or either of them.
The mother be permitted to arrange for MWH to have a psychiatric assessment and to follow any recommended treatment without the consent of the father and to provide the psychiatrist with copies of the report of Mr Brian Bembrick, dated 23 June 2005 and the Family Report, dated 19 August 2005 and a copy of these Orders and Reasons.
Each party advise the other and keep the other advised of their current residential address and contact telephone numbers, both landline and mobile, and advise the other party of any changes in those details within 3 days of any such change occurring.
Pursuant to section 65DA(2), 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.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.
All existing applications otherwise be dismissed and the matter be removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3009 of 2004
| DIH |
Applicant
And
| MJH |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about parenting arrangements for MWH, 12 and SRH, 9. Their parents have been separated for about 3 years. The mother made the decision to end the marriage. The mother moved out of the home with the children and they lived in unsettled circumstances for several months. In early August 2004 the parties reached a property settlement and soon afterwards the father moved out of the home and the mother and children returned to live there.
The children had no contact with their father from the end of February last year until the parenting orders were made by consent 5 months later in July. The orders provided for the children to live with the mother and to have regular contact with the father. There have been continuing difficulties in relation to contact. Both parties brought proceedings for contravention of orders during 2005. There remains a high level of tension between the parties.
At hearing, the mother wanted the July orders changed. The father was less certain about what he thought would be the best arrangements for the children. At first he wanted the children to have the freedom to choose with which parent to live but at the end of the hearing said he wanted last year’s orders to continue unchanged.
The mother said MWH wanted the freedom to decide when he spent time with his father and SRH wanted less time with his father. She said MWH in particular, was struggling emotionally with the present arrangements and only goes on contact “because he knows I’ll be in trouble if he doesn’t go.” Mr Bembrick, the social worker from the Legal Aid Commission met with the children to prepare the wishes report. Ms Pitts later met with the children to prepare the family report. Both agreed with the mother’s assessment of the children’s position and were unequivocal in their view that the children’s wishes should be given significant weight.
The father accepted no responsibility for the problems articulated by either child in the assessment process, submitting “I am just a respondent. It is nothing to do with me that we are here [in court].”
I agree with the opinions of both Ms Pitts and Mr Bembrick that the father needs to accept responsibility for his own behaviour towards the children which has been the major cause of the undermining of his relationship with them, particularly MWH. I am satisfied that if he had done so, these proceedings are likely to have been avoided.
Issues
The court must decide what orders best promote the welfare of each child by answering these questions:
a)What are the children’s wishes and how much importance should the court give those wishes?
b)What is the nature of the relationship between the children and each parent and other people in the children’s lives?
c)What is the capacity of each parent to provide for the needs of the children?
d)Do the children need to be protected from psychological harm?
e)What attitude has each parent shown to the responsibilities of being a parent?
f)What parenting arrangements would minimise the risk of there being further court proceedings about the children?
Background
The mother is 39 and the father 49 and both work full time. They started living together 4 years before they married in May 1992. MWH and SRH are their only children. The parties separated on
16 January 2004 when the mother and the children moved out of the matrimonial home to the maternal grandmother’s home. The father remained in the home and changed the locks which meant there was a period when the mother and children were unable to collect their personal belongings. On one occasion the police accompanied the mother to the home to collect personal items but the father demanded they leave. Following a property settlement several months later the mother and children returned to the home where they have lived since. The father moved to rental accommodation.
Should the orders of July 2004 be re-visited?
The court made consent orders about parenting arrangements for MWH and SRH on 26 July 2004, only just over a year ago. Before varying existing orders, the court should be satisfied there are circumstances which require the court to consider afresh how the welfare of the children should be best served: Rice v Asplund (1979) FLC 90-215. His Honour Justice Collier in King v Finneran [2001] FamCA 344 said “The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.” His Honour said the question is whether the new material before the court makes it necessary in the interests of the children to allow further proceedings. This requires the court to give consideration to the importance or seriousness of the issues raised and the impact they may have on the children.
By the mother’s Application and the father’s Response, both parties sought to vary the July 2004 orders but during the hearing the father changed his position. He wanted the court to leave the July 2004 orders in place. I am satisfied that since those orders were made a number of changes have occurred which are directly referable to the children and of some consequence:
a)MWH has made it clear in interviews with Mr Brian Bembrick and Ms Pitts, the family reporter, that he wants the freedom to choose when he sees his father.
b)MWH’s emotional health has deteriorated. He presented to
Mr Bembrick and Ms Pitts as sad and dejected. He may be clinically depressed.c)SRH has made it clear to Mr Bembrick and Ms Pitts that he wants to spend less time with his father.
d)Both children have often found contact periods distressing particularly as the father has repeatedly denigrated the mother and their maternal grandmother in front of them. MWH has run away from his father’s home during a contact period and strongly resisted going on contact on a number of occasions.
In considering the Rice v Asplund issue, I must have regard to the best interests of the children as the paramount consideration. The Full Court in Newling and Newling (1987) FLC 91-856 held that there was not a fixed minimum period in which a question of changed circumstances cannot be reconsidered by the court. The orders of last year were made by consent so the matter has not been previously litigated on a final basis. I am persuaded there are circumstances which require the court to consider afresh how the interests of the children should be best served and that to allow this further hearing to proceed will advance the children’s welfare.
What are the children’s wishes and how much importance should the court give those wishes?
Both children clearly expressed their wishes about contact to Ms Pitts, the family reporter when interviewed for the family report. MWH wants the freedom to decide when he sees his father. SRH wants less time with his father. Two months earlier, both children had expressed their views about contact to Mr Brian Bembrick, the social worker who prepared the wishes report. MWH at that time said he would like contact weekends to be once a month with an option for additional time, rather than alternate weekends. SRH’s views at that time were much the same as when he spoke to Ms Pitts. In the view of both Mr Bembrick and Ms Pitts both children had the maturity to express their wishes and make decisions about contact. Neither saw any evidence of the children’s expressed views having been influenced by the mother.
The father said I should give the children’s wishes minimal weight.
He conceded the evidence was clear from the ‘so called experts’ that SRH should have a variation in contact arrangements and MWH should have more control over those arrangements. However, he had little or no regard for the opinions of Mr Bembrick or Ms Pitts and persisted during cross-examination in attempts to undermine and cast doubts on their professional qualifications and expertise. He told Ms Pitts he did not regard either child as sufficiently mature to choose when they would have contact with him.
SRH expressed a clear wish to Mr Bembrick and to Ms Pitts to continue to see his father on alternate weekends but not to stay over on Thursday nights and not to spend more than one week with his father on holidays. The mother reported SRH saying to her “Mum, when is the court going to make a decision because I don’t like staying overnight on Thursdays.” SRH also expressed a clear wish not to change rugby clubs as his father wanted.
Ms Pitts said MWH presented at interview as depressed. MWH also told her he was depressed. She said his body language indicated a sense of sadness and hopelessness. Mr Bembrick thought MWH may have a sense he was not being listened to which would increase his despair. MWH understood Mr Bembrick would write a report about his wishes which his parents and the court would then implement.
To date, this had not happened. Ms Pitts was concerned about MWH. She believes he is suffering a considerable degree of depression and she strongly recommends he be referred to an adolescent psychiatrist for assessment in order to ensure his future safety.
The Full Court in H v W (1995) FLC 92-598 and again in R v R (2000) FLC 93-000 held that children’s wishes are important. In R v R the Court held that children’s wishes should not be departed from where they are soundly based and have been expressed without influence from either parent and are expressed against a background of particular facts and circumstances.
Both Mr Bembrick and Ms Pitts said the boys would benefit from having some control over their contact arrangements and having their wishes respected. MWH in particular, needed to be listened to and to be able to choose when he saw his father. Ms Pitts believes without prescriptive orders, MWH would see his father, but he would probably adjust the contact times and not spend as much time with him. She recommended the court make contact orders in accordance with the children’s wishes.
I am satisfied that given MWH’s age and maturity, and the strength of his expressed wishes, he should be given the choice to decide when he sees his father. I am also satisfied that SRH’s wish to reduce his time with his father is soundly based.
What is the relationship between the children and each parent and other people in the children’s lives?
It is not contested that the children love their parents and that both parties love their children. The mother told the children at separation they had a choice: they could live with their father in their own home if that is what they wanted to do. I am satisfied the mother believed that was a realistic option for them. The children chose to stay with their mother. I am satisfied the children have a strong relationship with their mother.
The father submitted that he has a good relationship with both children and his relationship with MWH has improved dramatically since April. “A lot of positives came out of that episode.” I accept the evidence of both counsellors and the mother that the children have enjoyed some contact periods with the father.
Both Mr Bembrick and Ms Pitts said there were problems in the children’s relationships with the father. Mr Bembrick found SRH’s relationship with his father more preserved than in the case of MWH. In his interview with Mr Bembrick, MWH placed his father 4th on his hierarchy of “closeness”, after his mother and his maternal grandmother, “nanna” [who died shortly before the interview] SRH, and his mother’s two brothers. SRH placed his father 2nd on his hierarchy.
Both Mr Bembrick and Ms Pitts believed that the father’s behaviour after separation had caused the difficulties MWH was experiencing in his relationship with the father. In particular, MWH was greatly distressed by his father’s denigration and ridiculing of his mother and his nanna. “Dad’s been saying stuff about mum that we didn’t’ need to hear and stuff about nan who just died that he didn’t need to say.”
He was unable to articulate many of those things as they were “too upsetting to repeat.” MWH said he was unable to tell his father how he felt as he did not want to start an argument. In Mr Bembrick’s view MWH’s relationship with his father is likely to further deteriorate if the father does not immediately stop denigrating his mother and grandmother.
SRH also complained to both Mr Bembrick and Ms Pitts in very clear terms about the distress caused him by his father’s denigration of his mother and maternal grandmother. He disliked his father talking badly about his mother, calling her a “slut” or telling them she had been sleeping around with other people.
He was very distressed just before his grandmother died that his father told her she had the “face of the Grand Canyon”. He also did not like his father criticising his football. “I don’t like him saying I don’t play well. He says I’ve got to go to a new team. I want to stay in the team that I’m in.”
Ms Pitts said MWH was unable to identify any positive aspects about contact with his father claiming he was often bored. He wished his father would respect his decisions. In her view, he has not yet connected his feelings of sadness with the way he feels about his father. As already noted, Ms Pitts believes MWH should be psychiatrically assessed. She made this observation:
MWH presented as depressed and dejected. He walked slowly, with a shuffle as if he has no energy. He looked sad and hopeless, talked very quietly and was often difficult to hear. He seemed to have very little enthusiasm for life. When asked if he felt depressed, MWH confirmed that he did.
Mr Bembrick said each child’s relationship with the father was precarious. MWH was genuinely distressed about his father’s comments about his mother and grandmother. He had put his father 4th on his hierarchy because of the father’s behaviour and his position on the chart was congruent with what MWH was saying about his father. He was confident the father’s position on the hierarchy was in no way attributable to anything the mother had said or done.
Mr Bembrick said unless the father addressed his own conduct appropriately, the difficulties in his relationships with both boys would deepen.
Ms Pitts described the father as “a man who is easily angered, who feels misunderstood and who feels his authority as a father figure is threatened. He does not acknowledge that he may be responsible, in some measure, for difficulties he has in his relationship with his sons, but places the blame for this situation on the boys’ mother.” She recommended the father attend a course called Positive Parenting which is about dialogue with children. In her view the father’s relationship with his sons will be further damaged if the boys continue to feel the intense pressure he has put on them in the past to comply with his wishes. Ms Pitts said if MWH is in control of his contact arrangements, he could be less angry and establish a better relationship with his father.
The father called into question Mr Bembrick’s and Ms Pitts’ expertise in these matters. The father was adamant MWH is not depressed.
“I know he is not depressed.” He questioned the legitimacy of the court saying MWH should attend for a psychiatric assessment. He said if the court so orders, he would not stop the mother taking him, but he would meet none of the costs and would not mention the matter with MWH.
However, the father did concede that if the court was satisfied MWH was not coping with the present arrangements, he should not be made to attend contact. I accept Ms Pitt’s evidence that the boys having different contact times with the father should not impact in any way on their relationship with each other.
What is the capacity of each parent to provide for the needs of the children?
There was no dispute that both parents have the capacity to meet the children’s day to day physical and intellectual needs. The issue before the court concerned each parent’s capacity to meet the children’s emotional needs. The father believed the mother and her family turned the children against him. The mother believed the father was unable to accept that his own behaviour had in large part contributed to the children’s attitude to him.
I am persuaded both parties made errors of judgment in their dealings with each other over the children in the months immediately following separation. The parties were angry with each other and I am satisfied neither focussed on the damage their behaviour was causing the children. Immediately after separation, the father locked the mother out of the house which meant the mother and children had difficulty retrieving their personal possessions. This was the unfortunate context in which the children’s post separation relationship with their father began. The children saw their father regularly over the next 6 weeks but then contact arrangements broke down. MWH had asked his father to take him home because the father was denigrating his mother and her brother. After the same weekend, SRH said to his mother “what does dad mean when he says he could keep me for the next 10 years and I’ll never see you again?” The children then had no weekend contact with the father for several months causing a great deal of distress to the father. I am satisfied on the mother’s evidence and the children’s reports to the counsellors that the father demonstrated insensitivity to the children’s emotional needs many times from then onwards which reinforced the children’s reluctance to spend time with him.
In March 2004, just 2 months after separation MWH was upset at being dropped from a higher football team. He rejected his father’s approach to talk to him. The father grabbed MWH by the wrist and dragged him away from others who were present. MWH screamed and kicked to get away. In April 2004 the mother and the children were on holiday at a Central Coast Beach. The father arrived on the beach unannounced, approached the mother, despite the existence at that time of an apprehended violence order against him and spoke to her about contact arrangements. MWH made it very clear he wanted nothing to do with his father that day and asked him to leave them alone. This was despite the father delivering Easter eggs to the children.
On 18 September 2004 MWH ran away from his father’s and was found by the father’s brother on the expressway walking home. On
15 October 2004 the father called the maternal grandmother “a slut” in front of MWH. MWH on a number of occasions rang his mother begging her to collect him.When the mother and children moved back into the house in September, the mother said the father had left only “3 knives, 3 forks and 3 spoons” in the cutlery drawer. She was visibly upset in front of the children when she found the father had removed items, not included on the inventory, which she said she had owned before marriage. The father acknowledged he selected the list of household items prepared by the mother with her name on it rather than the list of items the mother prepared for him. Even though the father was entitled under the property orders to choose whichever list he wanted, I am not satisfied he considered the likely impact of his choice on the mother and the children.
There continued to be problems with contact even after the consent orders of July 2004. Neither child wanted to go with the father on the first weekend after the orders were made. However, they went. The next day at their football match, they told the father they wanted to go home with the mother who was there to watch them. The police became involved when the father manhandled MWH. The mother gave a number of instances when the father seriously denigrated her in front of others and one or both of the children. Both children would openly express their distress at their father’s conduct. SRH was upset when, after he lost the Grand Final the father said “your team has no attack, you won’t be playing there next year.” Then the father would not allow SRH to attend his rugby team’s grand final celebrations. The father has also made SRH well aware he does not approve of SRH’s current rugby club, a club SRH very much enjoys and at which he won the mini-player of the year award in 2004.
In April this year MWH told the mother he did not want to see his father for the contact weekend. She nevertheless took him to meet the father. This conversation took place between MWH and the father:
MWH: Can I stay with mum this weekend?
Father: Why?
MWH did not respond.
Father: That’s not good enough Matt if I let you stay this weekend you will do it more often, you’re not being fair on dad.
MWH became increasingly upset. He was coughing and dry retching. The mother stayed with him outside the father’s mother’s home for 2 hours. The father’s mother tried to speak to the father on MWH’s behalf. The father demanded the mother leave MWH’s bags and go home. MWH ran to the end of the cul-de-sac and sat in the gutter. SRH asked his father to let MWH go home with his mother. MWH finally agreed to stay with his father if he promised to stop talking about his mother and Nanna. Yet a couple of days later the father caused a scene at the boys’ football game denigrating the mother and the maternal grandmother in front of other parents and the children. The father said this occurred because the mother and grandmother were abusive to him.
The father would not accept any responsibility for any problems in his relationship with MWH, despite his knowledge of MWH’s reports to his school counsellor during 2004 [Ex 2] that he was angry with his father and had little respect for him. He said the episode involving MWH dry retching at changeover was a turning point in their relationship which had markedly improved since then. He would not accept the observations or recommendations of either counsellor.
“I could not accept views of counsellor who spent about 4 hours with the boys.” He said he would not attend any further parenting programme as recommended by Ms Pitts. The father did not accept that he was an angry man yet SRH identified his father as the angriest member of his family and said he was frightened of him when he became really angry. “He gets red in the face and shouts.”
I find the father has demonstrated poor insight into the children’s emotional needs and showed no sign during the hearing or the family report interviews of a change in attitude. He was dismissive of the reports of two experienced counsellors and unwilling to accept the potential seriousness of MWH’s current emotional health. He was unable or unwilling to acknowledge the difficulties he has caused in the boys’ relationships with him. I found the father to be more focussed on his own feelings of loss than on his children’s feelings. I agreed with Mr Patterson’s submission for the mother that the reaction of each party to their attendance at Unifam’s Transitions post separation parenting programme was telling. The mother said the programme was “brilliant” showing her very clearly the negative effect on the children of her conflict with the father. She said “I now realise I did the wrong thing.” The father went to the same programme at a different time. He said in evidence that the course was positive “it was about the pain a parent feels after separation”.
Do the children need to be protected from psychological harm?
The children have been exposed to a lot of arguments between the parties during the marriage and since separation which the mother now recognises has been very damaging to the children. The children have been repeatedly subjected to the father’s denigration of their mother, though less so since orders were made in July this year prohibiting him from engaging in such behaviour. I am satisfied the father’s behaviour has had a serious impact on MWH’s emotional health, and damaged the father’s relationship with SRH. Ms Pitts is firmly of the view that MWH should be referred for a psychiatric assessment so he can be treated if considered necessary.
Given the father does not accept that MWH may be depressed and does not accept responsibility for the deterioration in his relationship with his sons, I have concerns the children remain at risk of further psychological harm if the father’s denigration of the mother continues in front of the children. I have therefore made orders restraining both parties from denigrating the other or from discussing these proceedings with the children.
What attitude has each parent shown to the responsibilities of being a parent?
The mother acknowledged the importance of the children’s relationships with the father and their love for their father. She said she has and would continue to encourage the children to see their father and enjoy their time with him. She said she would be flexible about arrangements if they worked for the children citing an example a few weeks before hearing when the father took the children to a West Tigers football game on a non-contact weekend. I accept the mother’s evidence when she said that the boys expressed real concern their father might not let them return home after contact. “What if Dad is a bastard and won’t let us see you again?” I also accept the mother’s evidence that she has encouraged the children to see the father saying such things as:
“May be Dad will be different this time”, “it might be fun this weekend”, “he won’t say how bad I am this weekend”, “you need to forgive Dad” and “deep down, he loves you.”
I am satisfied the mother has avoided saying negative things about the father in front of the children. SRH told Ms Pitts that he liked the fact his mother said nothing bad about his father. Mr Bembrick said he got no sense from the boys that the mother and grandmother said negative things about the father.
The father’s habit of denigrating the mother in front of the children featured prominently in the case and in the children’s interviews with Mr Bembrick and Ms Pitts and has been canvassed already in these reasons. I find the father’s behaviour in this regard has been irresponsible.
In the mother’s view, the father has not shown flexibility in contact arrangements. When she sought his permission to stay at their beach holiday for an extra day last January, the father refused. When she arrived a day late, the father took her to court for breach of the contact order. The mother regarded the father’s actions as absurd over one day. The problem was exacerbated when the father told the boys their mother would be going to gaol for getting them back late. The boys were so distressed they refused to go with him on contact.
I found the father was focussed on his own feelings of loss and betrayal during the hearing. He was demonstrably angry with the mother. At one point in cross-examination of the mother he was unnecessarily hurtful and malicious. When asked by the child representative about arguing in front of the children prior to separation, the father would not concede this was damaging to the children. He said it was not “a perfect situation.” He showed a marked reluctance to accept responsibility.
He blamed the mother giving up smoking, the court, the counsellors and the mother’s family. In answer to questions about the counselling notes from the school in 2004 the father said “I accept Mat was angry at the world, at life, at his parent’s separation.” He would not accept MWH was angry with him despite the notes clearly referring to MWH’s feelings of anger towards him. He accepted SRH said that the father was the angriest member of the family, but said this was “not necessarily reality.” He did not agree he was easily angered.
The father did not openly acknowledge the importance of the children’s relationship with the mother, but did not seek to change the arrangements that the children live with the mother. The father was convinced that any negativity either child might feel towards him has arisen because of the conduct of the mother and members of her family. He could conceive of no other possible explanation.
What parenting arrangements would minimise the risk of there being further court proceedings about the children?
I am satisfied that if an order were made for MWH to attend for contact with the father for specified periods, there are likely to be further applications for contravention before the court. This would not be in the interests of the children.
Conclusion
The relationship between the children and their father will be determined by the father and how he manages the relationships. I am satisfied his relationship with MWH in particular, has seriously deteriorated and that the father bears the majority responsibility for that. The father has shown limited insight into the children’s emotional needs to date. It is very important the father stops denigrating the mother in front of either child. Ms Pitts said that if the father is able to demonstrate respect for the boys’ feelings and wishes and relate to them in a flexible, less demanding manner he may be able to redeem the situation with his sons. Both Ms Pitts and Mr Bembrick reported the boys’ enjoying contact at times. I urge the father to consider this advice carefully and to act upon it. I am satisfied the situation for the whole family would greatly improve if he did so.
I am satisfied the Orders I have made are in the best interests of the children.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 23 September 2005