ELBURN & ELBURN
[2020] FCCA 2386
•5 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELBURN & ELBURN | [2020] FCCA 2386 |
| Catchwords: FAMILY LAW – Parenting Proceedings – interim care arrangements for two young persons – circumstances where parties take dramatically different positions on parenting – accusations by each parent that the other has actively engaged in seeking to align the children with them – best interests of the children – children suggested to be estranged from mother – where it is proposed that there be limited communication between children and their mother - right to know and be cared for by both parents – right to communicate and spend time with both parents – substantive change in care arrangements – children’s right to have their voice heard in the proceedings – consideration of weight to be placed upon children’s views where it is suggested that views are not genuine, not strongly held and not free of influence – property orders sought for restraint upon husband disposing of matrimonial assets. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA(5), 68LA, 69ZL, 114 |
| Cases cited: Goode & Goode (2006) FLC 93-286; Other sources |
| Applicant: | MS ELBURN |
| Respondent: | MR ELBURN |
| File Number: | PAC 6308 of 2019 |
| Judgment of: | Judge Harman |
| Hearing date: | 5 May 2020 |
| Date of Last Submission: | 5 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 5 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms De Vere |
| Solicitors for the Applicant: | GenLaw Pty Ltd |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Anthony Ziade & Associates |
ORDERS
Pending further Order, the parents Ms Elburn and Mr Elburn shall have equal shared parental responsibility their children X born in 2004 and Y born in 2006.
Pending further Order, X and Y shall spend time with their mother:
(a)Each Sunday from 9.00am until 5.00pm;
(b)Each Tuesday from 4.00pm until 8.00pm
(c)Such further or other periods as agreed between the parents from time to time.
Pending further Order, X and Y shall live with their father.
That the children attend Family therapy with the Mother at appointed times by Dr B or such other therapist as the parties may agree or the ICL might nominate and for the purposes of such Order:
(a)the mother shall within 7 days of the making of this Order contact Dr B and arrange the initial appointment; and
(b)the mother and the children shall thereafter attend all such appointments as nominated by Dr B; and
(c)the parties shall ensure that the children attend all such appointments as nominated by Dr B; and
(d)the mother and father shall bear equally the costs of such therapy.
That the Mother and Father will do all things and sign all documents necessary to enable and authorise the other Parent to obtain directly from any school or other place of education which the Children attends copies of school reports, newsletters, and any other information and/or document normally provided to Parents.
That the Mother and Father are to do all things necessary to enable the Children’s treating medical practitioners or medical facilities to provide the Children’s medical records and information to the other Parent upon the other Parent’s request, and to allow the other Parent to attend any medical consultations concerning the Children.
That in the event that either of the Children suffers from a significant medical problem, or either Child is prescribed medication, the Parent spending time with that Child is to notify the other Parent as soon as is reasonably possible of the medical problem suffered by the Child, and/or medication that has been prescribed for the Child.
That in the event that either Child suffers a medical emergency, then:
(a)The Parent spending time with that Child is to notify the other Parent as soon as is reasonably possible of the medical emergency; and
(b)The Parent spending time with that Child is to provide the other Parent with details of the medical practitioner or medical facility treating the Child, including the name, contact number and address as soon as is reasonable possible.
That the Mother and Father are to keep each other informed of any social, school, or religious function which the Children are to attend, and any other matter relevant to the Children.
That neither Parent is to denigrate, belittle, and/or insult the other Parent, persons the other Parent is in a domestic relationship with, or members of the other Parent’s family, in the presence or hearing of the Children, and each Parent must use their best endeavours to ensure that no other person does so in the presence or hearing of the Children.
That the Mother and Father are to keep each other informed of their contact mobile phone number, and landline number if available, and email address and are to keep each other notified of any change to their mobile phone number, and landline number if available, and email address forty eight (48) hours in advance of any change
That pursuant to Rule 13.04 (1) of the Family Law Rules, each party shall provide, to the extent that they have not already done so, full and frank disclosure of their financial position within 14 days (the onus being upon the party obliged to give disclosure to prove that disclosure has been given).
That within 7 days the Husband deliver to the Wife her gold jewellery including her engagement necklace, engagement bracelet and necklace;
That the Wife have leave to file an amended Initiating Application subsequent to her receiving the Husband’s financial disclosure as required by Order 1 above.
That, until further order of the Court, the Husband be restrained from disposing of any matrimonial assets including boat, motorbike, tools, real property located at C Street, Suburb D and E Street, Suburb F, burial plot.
Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.
Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9am on 22 May 2020 for the Applicant and at 9.45am on 22 May 2020 for the Respondent, and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
Note: In event that either party seeks to have a safety plan in place regarding their above appointments they are to contact the Registry Manager as soon as practicable and not less than 14 days prior to the Child Inclusive Conference so that arrangements can be made to suitably address any concern raised.
The matter is adjourned for further interim hearing to 19 June 2020 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Elburn & Elburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6308 of 2019
| MS ELBURN |
Applicant
And
| MR ELBURN |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to interim care arrangements with respect to young persons, X, born in 2004 and Y, born in 2006.
As would be apparent from the above, X is nearly 16 years of age and Y will later this year turn 14.
The parties to the proceedings are X and Y’s parents. Their mother is the applicant, their father the respondent.
These reasons are given in short form pursuant to section 69ZL of the Family Law Act 1975 (Cth).
In addition to contested parenting arrangements, there are also a number of limited issues with respect to the financial aspect of the proceedings.
Material considered
In dealing with the proceedings, I have read and considered each of the documents identified by the parties and as set out in the case outline document provided by counsel for each of the parties.
The documents, as identified, comprise:
a)In the mother’s case:
i)Her Application;
ii)An Affidavit sworn or affirmed 23 March 2020;
iii)Notice of Risk; and,
iv)The case outline document itself.
v)There are also two tenders, comprising a draft balance sheet, agreed for the purposes of today’s determination but without prejudice and without admissions and subject to such amendments or redactions as may arise (Exhibit A1), and certain documents relating to young X and his school attendance and matters pertaining thereto (Exhibit A2).
b)In the father’s case, I have read and considered:
i)His Amended Response;
ii)An Affidavit sworn or affirmed on 24 April 2020;
iii)Notice of Risk; and,
iv)Brief case outline document provided by counsel for the father.
The parties’ proposals
The parties could not be further apart in relation to their proposals, at least with respect to parenting.
In relation to the financial matters that are to be addressed today, there is little controversy as the day has played out.
The mother seeks an Order that the father give full and frank disclosure. An Order can be made on a mutualised basis that it be so. The Federal Circuit Court Rules 2011 (Cth) would require it.
The mother seeks that the father deliver to her certain items of gold jewellery. The father’s instructions are that, as far as he understands, those items are or may already be held by the wife. I will return to that issue shortly.
In any event, I intend to make the Order that the items be delivered up. If they have already been delivered up, the Order is fulfilled. If not, then it can be complied with.
The wife seeks leave to amend her Initiating Application following upon financial disclosure. It is a vexed issue as to whether leave is required. Some judges take the view that it is, others, including myself, do not. Accordingly, I propose to include the leave. It is helpful, if nothing else, for both parties to have the relief they seek clear and particularised. It assists the Court. It affords due process.
Finally, the wife seeks a restraint upon the husband disposing of certain matrimonial assets. The husband agrees to the Order, save and except that he does not agree to the restraint upon his expenditure of savings. What is clear from the material that is filed is that the husband would appear to have savings at bank of approximately $76,000. The wife’s savings are approximately $150,000, largely reflecting a compensation claim that she received following her involvement in a motor vehicle accident in or about 2015.
Each of the parties will, no doubt, at present and in the foreseeable future, need to draw upon funds to be able to meet the cost of their legal representation and other expenses. I am conscious that a restraint upon the husband with respect to his bank account may impede his ability to instruct and retain his legal practitioners in the same fashion that such a restraint on the wife – although none is sought – would have the same impact upon her.
Counsel for the wife sensibly and appropriately indicates that they could not be heard vociferously to oppose the exclusion of savings from the restraint as sought. I propose to take that path. It will still permit the substantial assets of the relationship to be preserved, those assets being in the husband’s sole name, and avoids any imputation that the wife’s case would be rendered nugatory.
In relation to the parenting dispute, the parties are a dramatic distance apart.
The wife proposes that the parents have equal shared parental responsibility, that the children – on an interim basis, but certainly not final – live with their father and that they spend time with their mother on a substantial and significant time basis, that being alternate weekends, Friday to Monday, each week Wednesday to Thursday and for a period each Tuesday afternoon on a non-overnight basis. Further and relatively extensive Orders are sought with respect to school holidays, special occasions and the like.
Importantly, the wife seeks an Order that the parties engage in a process of family therapy. That will be fundamentally important for this family. Thankfully, that is now an agreed Order.
A raft of restraints, both positive and mandatory, are sought, the majority of which would not appear to be in any way opposed and all of which seem abundantly appropriate. Accordingly, they can be included without significant controversy.
The father, for his part, proposes Orders with respect to the children practicing a relationship with their mother one day each alternate weekend - preferably Sunday, but in the event that the children have extra-curricular activities, then on Saturday – and that, without being subject to an Order, the husband use his best endeavours to cause both children to attend with the mother on a Tuesday evening. It is common ground that this has been occurring with some regularity, but not entire, during the adjourned period.
The father’s position is that the elder lad, X, would not be the subject of Orders, although he would, on the father’s case, be permitted and encouraged by the father to attend and participate on the same basis as his younger brother.
Again, from the outset, I propose in this case, and for reasons that I will endeavour to tolerably articulate, to make Orders which apply to both children. That is so notwithstanding the age of X - nearly 16. The Orders that I propose to make will be reviewed within two months or so and following the appointment of an independent children’s lawyer and, if a date can be obtained, a Child Inclusive Conference.
Whilst the COVID-19 pandemic has played havoc with such appointments, the ages of these children are such that it should be possible – subject to the discretion of the Child Dispute Services manager – for the children to be interviewed by video, telephone or other service.
Evidence
I do not propose to canvass the evidence at great length or in great detail. There is little time to do so and, in any event, it is largely counter-productive. As the Full Court was clear in Goode & Goode (2006) FLC 93-286 and Marvel & Marvel (No. 2) [2010] FamCAFC 101, it is difficult, if not impossible, and certainly ill-advised for the Court to attempt to make findings of fact at an interim hearing when the evidence is limited, often hurriedly prepared and the hearing itself is circumscribed such that there is no testing of evidence. The Court should endeavour to proceed on the basis of agreed matters, concessions and, where it is available - although it does not apply in this case - irresistible corroboration.
There is, whether the parties acknowledge it or not, a substantial body of agreed fact between these parties. The parties agree that since the birth of the eldest child, X, Ms Elburn has been a full-time house parent, as it were. She has attended to the majority of the children’s day-to-day needs, including addressing their school, medical appointments and other matters. That is not to suggest that Mr Elburn has not been an involved parent, although the parties agree that Mr Elburn has been the predominant wage earner - a somewhat traditional structure of the family, if you will - and, as a consequence, his ability to participate on the same basis as the mother has been more limited.
The relationship of the parties is, on the mother’s evidence, permeated by coercive and controlling family violence. That is not an agreed matter. It is far from agreed. At this point, the father raises a number of allegations with respect to the mother and her suggested visiting of violence on one, or possibly two, occasions upon the children or either of them and for fixed periods of time that are specifically identified in a Notice of Risk, (between the ages of eight and 12 in relation to X, and seven and 11 in relation to Y). The mother has visited more substantial, harsh and excessive discipline upon the children, to put it in its most euphemistic terms, as is submitted by counsel for the mother.
Whilst that allegation is raised in a Notice or Risk, it does not appear at all in the father’s affidavit material. Accordingly, those issues - whilst not completely disregarded or discounted - could not carry any real weight.
The primacy of care during the relationship is of little assistance, however, at this time. There could be no criticism of Ms Elburn as a parent during that period. The arrangement continued with the agreement, express or otherwise, of both parents. No step was taken to interfere in the arrangement and no suggestion is given that there was ever any complaint or criticism raised by the father or any other person or agency.
The parties separated, it is alleged by the father - the mother is less clear, but I accept it may well be an agreed fact, (nothing turns upon whether it is or not) - living separately and apart under the one roof from January until July 2019. It is the father’s case that the parties were under the one roof and that physical separation occurred at the later date.
The mother points out in her evidence that, during that period of time, whether under the one roof or otherwise, she was not in paid employment and was available to care for and did, in fact, care for the children on a full-time basis. The father continued to work on a fairly substantial basis. The parties each spent an alternate weekend with the children.
From July or August 2019 - the father suggests the earlier, the mother, the latter – the parties then practiced a week-about shared care arrangement. The parties are agreed that it was so. The only dispute between them is how it came to be so.
The father’s evidence is that it was the agreement that the parties arrived at before the mother physically left the matrimonial home - curiously, on the father’s evidence, described as “taking the children with her”. That might, as an exercise of semantics if nothing else, lend some support to the mother’s proposition that the children did, in fact, live with her on a full-time basis for some period of time. Again, very little turns upon it as the reality became, by August at the very latest, that a week-about care arrangement was in place.
The mother suggests that it was imposed upon her unilaterally - the father attending at the children’s schools and removing them during the school day and simply presenting it to the mother as how things would henceforth be.
The parties are agreed that from July or August 2019 until mid-January 2020, the week-about arrangement subsisted.
On or about 17 January 2020, when the children were in the father’s care and due to return to the mother’s care for a week period, the arrangement, as the father describes it, “broke down”.
What occurred at that time is, on the father’s case, the suggestion that the children determined for themselves, without any suggestion from any other person or any active input to seek to persuade them to that view or otherwise, that they did not wish to return to the mother’s care.
At that point in time, there was an extensive exchange of text messages between the parties, instigated by the mother seeking to ascertain why the children had not and were not being delivered in to her care as the parties had practiced for some five to six months earlier. The mother indicated in those text messages, (page 26 and 38):
I ask you to assume your role as a father and tell them that they are to spend the next week with me.
The father’s response:
Ms Elburn, I understand we had an arrangement of week-about parenting which was forced upon the children as they have both always voiced that they do not want to leave the home or their father.
The above is not suggested in the father’s evidence. It is the content of the text message:
I have noticed that they are stressed out two days prior to returning to you and ecstatic to return. They tell me what they feel because it comes from their heart. The separation has done untold damage and caused undue stress to our children.
That latter proposition is very much manifest for these children. The separation of their parents has, for whatever reason – each advances a hypothesis supported, at least in parts, by evidence that they adduce as to why it is so – caused significant damage to, at least, the children’s relationships. The father’s text continues:
They are not little children any longer and are teenagers in a very delicate time of their life, going through puberty to become men. My role as a father is to do what is best for the children, so I will listen to their hearts and minds and accommodate them in every possible way. The boys have spoken about how they feel while with you and have tried to voice their feelings to you, to no avail. So they have come to this moment in time where they have made their decision.
There are a number of matters that arise from the content of the text, although it is, of course, not the father’s sworn evidence but merely a message forwarded by him that is contemporaneous with the breakdown of the week-about arrangement.
The message might suggest a degree of abdication of his parental responsibility to the children rather than, as the mother extolls, telling them what to do, indicating that he will listen to them and accommodate them in every possible way, including, it would seem, if they do not wish to attend, by not requiring them to do so.
The messages refer to a breakdown in the children’s relationship with their mother. That is suggested on the evidence of each of the parties. The mother is clear that from the time that the week-about arrangement started, the children’s behaviour and attitudes towards her began to change, particularly the elder lad, X. At paragraph 135 of her affidavit, the mother sets out a significant number of statements made by the children from about the time that the equal time arrangement started, which, on the father’s evidence, corresponds with physical separation of these parents, wherein the children might be suggested to be aligned with their father and rejecting of their mother.
What is also curious in the evidence is that which is contained at paragraph 49 of the father’s evidence. Therein, the father refers to the mother having given birth to a live child at the age of 17 years, before the relationship of these parents, and, accordingly, one would think the father’s knowledge of that being based entirely upon something the mother has related to him. The father describes, somewhat ambiguously, that in August 2019, “the boys found out” about that event and the fact that they had a brother.
The mother certainly denies that she has ever raised the matter with the boys, leading irresistibly, on the father’s own evidence, that it is he that has been the vehicle by which the boys found out. If that is so, it is a reprehensible step taken by the father that is not and could not be suggested to be, in any way, as his text message protests, “doing what is best for these children”. To deliver such knowledge to these children - knowledge of something that he was complicit in keeping secret from them for the entirety of their lives - in the context of parental separation, speaks of a lack of insight on his part and substantially so.
That is consistent, to some extent, with further statements made in the father’s text messages that the children have “a right to know” and that, at some point in their life when they are older, they “will know the truth”. Certainly, relating to the children that they have a brother who they have never met, nor previously heard about, is a “truth”, but it is not a truth that needed to be shared at that time or in that fashion. It is a despicable act as regards the mother, let alone the children, and does not and could not be suggested to demonstrate support for the children’s relationship with their mother.
The Court, however, is not a Court that responds punitively to actions of parents. As Baker J was wont to opine, children should not pay the price for their parents’ abhorrent behaviour. But of course, in this circumstance, they do.
If these children are now, as the father opines and hypothesises, genuinely rejecting, for their own reasons, a relationship with their mother, based upon the above disclosure to them, the mother’s suggested statements to the children about their father, raising with him that there has been violence in the relationship – something the father denies – or any other circumstance, the children do suffer. It is, after all, their right to a relationship with both of their parents, not the parents’ right to a relationship with the children.
That point must be made for the benefit of both of the parents, as one of the father’s text messages – page 32 of 38 – concludes:
I will continually fight for my rights a parent.
Neither of these parents have rights in these proceedings, save a right of due process. Rights vest with children. Duties and responsibilities rest with parents. Without intending to be in any way offensive to the religious beliefs of these parties, the ultimate conclusion that things will right themselves, “god-willing,” is not entirely accurate. Again, I do not seek to suggest that the faith system to which these parents subscribe is not and should not be a source of strength for them. However, there are actions that are required from the less-godly to fix the problems within the family - that is, actions by these parents.
The mother has sought to engage both the children and the family unit at large in therapeutic processes since separation, possibly before. That has been resisted by the father until today. There is now concession, as I have indicated, to engagement with a therapeutic process. That can and should have started quite some little time ago, as soon as problems began to manifest, rather than simply allowing the children, as it were, to dictate how things would be.
Certainly, there is some real force to that submitted by counsel for the father that seeking to force children of this age – nearly 16 and 14 – to do things which they have determined they do not wish to do may be difficult, if not counter-productive. Even if their thought processes and reasoning leading to that decision are fundamentally flawed or less than genuinely their own, it can be counter-productive. However, the father suggests that he does have a significant degree of sway with these children and he listens to what they speak from their heart, and, accordingly, that he can cajole them to do things.
I do not propose to leave anything within the Orders made by this Court to the parties using their best endeavours. Orders are Orders. They impose obligations on parents. It implies, of necessity, that they will not only use their best endeavours, but every available endeavour to ensure that the Order, both as to its terms and spirit, are complied with (see, for example, the discussion of Fogarty and Nygh JJ in Stevenson & Hughes (1993) FLC 92-363, which both parties would be well advised to read, digest and consider.
The difficulties are compounded in that each parent suggests that the other has actively engaged in seeking to align the children with them.
The mother suggests that the father regularly involves – and has for some little time involved - the children in discussion of the mother’s perceived deficits. The father suggests that the mother does the same. The father goes further, suggesting that the mother, when she has, as it were, a “bee in her bonnet”, does not relent and will keep going until she persuades the person with whom she is engaged that she is right and that things are as she describes them. Certainly, there are no examples given to support that conclusion, but it is that which is advanced.
The father does allege that on one occasion more recently (paragraph 54L), the mother, in company with a friend, attended at the home and the mother’s friend, more so than the mother, began to engage in abuse of the father in relation to his perceived past misdeeds, whilst both children were present, causing distress to them. The father suggests that as a consequence of the children’s distress from those events, they did not then attend dinner with their mother on the following Tuesday, notwithstanding the father’s best endeavours, because they were still upset.
That is, if it were true, very un-Christian of these children, being unwilling to forgive at all and imputing to their mother the sins of others. Again, they are matters that cannot be factually resolved today.
The father submits that he desires a strong relationship between the children and the mother and, ideally, that he would like to return to an equal time arrangement. He advances that he cannot consent to that at this point as it is not consistent with the children’s expressed views and as he does not believe that he or the children can cause it to be so.
The mother seeks to return to a substantial and significant care arrangement, noting that until July/August last year, the mother had predominantly cared for the children at all times, without any suggestion of difficulties in the children’s relationship with their mother. The father’s hypothesis advanced in his text messages is that the breakdown in relationship is because the children now blame their mother as a consequence of her actions and her statements to them, particularly but not limited to their father.
Again, that is a matter that the children require some therapeutic assistance to address. It is not for them to determine their arrangements, nor is it healthy for them to proceed in life on the basis of harbouring such resentments.
Beyond that, I do not propose to canvas the evidence further and I will refer to aspects of the evidence by reference to the legislative pathway. Suffice to observe in conclusion that neither party raises an allegation of unacceptable risk. The father’s case is that the children simply do not desire to practice a relationship and that, at their ages, it is counter-productive to seek to force them. The mother’s case is that the children have an excellent relationship with her which has been, as it were, “white-anted” by the father.
Legislative Provisions
I am reminded by section 60CA of the Family Law Act (supra) that in all that is done, the child’s best interests are the paramount consideration.
I must have regard to the objects and principles in section 60B of the Family Law Act 1975 (supra), which I incorporate herein.
Objects of Part and principles underlying it
(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).
The objects and principles do not form part of the substantive law to be applied to the facts and circumstances of the case, but they do assist in understanding those substantive provisions, applying them and interpreting them, as well as guiding the outcome the court should endeavour to achieve.
The Court must make Orders that ensure that the best interests of children are met by ensuring that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the child’s best interests and the children are protected from physical or psychological harm through subjection or exposure to abuse, neglect or family violence. Neither party raises that as a factor to be taken into account in this determination, and thus I do not propose to consider it further.
That is not to dismiss or treat as other than fundamentally important the allegations each raises with respect to family violence, as the Full Court has been clear in SS v AH [2010] FamCAFC 13 and Salah & Salah [2016] FamCAFC 100, the Court must. However, if neither party agitates that the allegations that are raised impact upon the children’s safety, it need not be considered from that perspective.
The mother certainly agitates that the father’s past actions of coercion and control are entirely consistent with what is now playing out – opining that the children are being enlisted and aligned with the father in his dispute with the mother.
The children’s meaningful involvement with each parent must be to the maximum extent consistent with their best interests. If one leaves aside the present views and attitudes of the children, as I accept they are being expressed at this point, the issue of why it is so being separate and distinct, the involvement would not be tempered.
It would be counter-productive to seek, for example – and hence the mother, no doubt guided by cogent and sensible legal advice, does not press it – to move these children to the mother’s care. That would likely achieve no greater outcome than that which resulted, for example, in Bennett & Bennett (1991) FLC 92-191, children then being suggested to run away - voting with their feet, as it were.
That things have gotten to this point is tragic. It is tragic for this family. It is tragic for these children. However, I am satisfied that the evidence would irresistibly suggest that the children have not simply reacted. They have had some active persuasion, if nothing else, through the disclosure made to them by their father with respect to their brother (a most insightless action, as I have already indicated).
Why the father felt that was appropriate will likely never be understood, perhaps not even by the father. It is an action which has been injurious to the children. It would cause them great distress. It would cause them some rejection of their mother, in all probability, as the father describes, (although no finding is made that it is so). It simply would appear to be a consequence that any grown-up, thinking the issue through, might have apprehended. It could not be helpful to them, their psyche or their relationships.
It must now be taken into account as a reality for these children. It may be that they are significantly influenced by their father as a consequence. It could be that they are merely influenced by circumstances, all of which are upsetting and unsettling for these children, already confused by their parents’ separation and thus, in their adolescence, the fracturing of their stable home, irrespective of the difficulties that may – and certainly on the mother’s evidence, did – arise in that past arrangement.
However, the meaningful involvement that each parent can now have should be tempered. I am not satisfied it should be tempered to the extent the father submits, but nor am I satisfied that it could now progress to what is a substantial and significant care arrangement from a fundamentally broken base.
The Orders that I propose to make will be reviewed, as I have already indicated, in two months or so, after a Child-Inclusive Conference – although that is problematic in itself, if the mother’s hypothesis that the children are heavily influenced is correct – but, more importantly, the involvement of an Independent Children’s Lawyer. The court has no control over that appointment, but hopefully it will be someone with nuance and significant skill in addressing these types of circumstances.
What it does lead to, however, is my satisfaction that during the intervening period, time should be more frequent than the father proposes, but should be something which has some prospect of being supported and occurring both from the father’s perspective and the children’s. That is not to yield to the problem that has, at least in some small part, been created by the father, but perhaps also, on the father’s evidence, if it is accepted on its face as more probably correct than not, contributed to by the mother.
I propose, on that basis, to make Orders for time to occur twice a week - one day each weekend for the day and each Tuesday. It will not be a matter of using endeavours. It will be an Order. There is an expectation that it will be complied with and if there are problems with compliance, the parties finding solutions and assistance in finding them. That is the most meaningful involvement for the next two months that I can safely put in to place.
I accept the submissions put by counsel for the father and I accept, genuinely so, that if the arrangement breaks down, it will simply cause more harm than good. It may fundamentally damage the children’s relationship with the mother. It may fundamentally damage the children’s relationship with their father. It may damage both. It may leave these children without either relationship to support them, when they have already, from their own perspective, in the last 10 months or so, lost their intact family structure.
I must make Orders to ensure the children receive adequate and proper parenting. That includes being responsive to the children’s emotional needs, hearing their voice, but also being an authoritative parent.
It is not for children to decide that they will terminate a relationship with a parent without good reason founded in abuse or neglect. Those issues are not raised in this case. All that it is suggested has occurred for these children is that their parents have ceased to love each other, have separated and, potentially, one or other, having very little good to say about the other.
The father’s complaints that the mother and her friends and associates are the sole perpetrators of such behaviour must be taken with a grain of salt. The father’s own comments on his Facebook page would suggest that he is equally capable of making such statements. Thus, it is possible, if not probable – although again, no finding is made – that each has uttered or allowed others to utter statements to these children which, even if they are founded in truth from that parents’ perspective, are unhelpful for these children. That is the only concern with respect to the adequacy of parenting, to a large extent.
There are issues with respect to the children’s education (Exhibit A1) wherein the father responds in relation to X not submitting his work, that the father simply relies upon the boy to do his work. Authoritative parenting involves something a little bit more “hands-on” than relying on a 15 year old to do what they are meant to. It is a foolish path to expect that they would.
The mother submits accordingly that she has a much better capacity to do such things, but the difficulty is that the relationship is presently strained, whether through the mother’s fault, the mother’s complete absolution from fault, or otherwise, it is simply the reality.
The sooner this family can engage with a therapeutic process, the better - and, to that end, I have amended the Order that is proposed and agreed to so as to provide that it is with the nominated therapist or any other therapist that is agreed between the parents or nominated by the Independent Children’s Lawyer , as delay will cause further difficulties.
These children need to be deprogrammed. They need to address whatever feelings they hold of resentment or otherwise towards their mother in relation to the great secret that was kept from them, the revelation of which has been hurtful, distressing and damaging to the mother and the children, and not the father, yet he is the revealer of that truth. That is something which the children may, in years to come – years very foreseeable, in fact – be resentful of their father for, rather than their mother.
They need to understand, whether through Christian empathy or secular empathy, that their mother is to be supported and understood in the circumstances, trying to survive the difficulty that she faced, not judged. All of those matters need therapeutic intervention. The parties would seem unable to address those matters through their faith and belief system or otherwise. They require that assistance sooner rather than later and, as already indicated, it is tragic that it has not already occurred. The parties are, after all, autonomous creatures. They do not need a Court Order to engage in what is right.
The principles create rights for these children. They are not absolute. They are neither enlivened nor practiced when to do so would be contrary to the children’s best interests. That caveat aside, these children have a right to know and be cared for by both of their parents - a right that is not fulfilled or supported by simply allowing children to voice their view, taking no active step to engage with the view or to change it.
Children have a right to communicate and spend time with both of their parents. Thankfully, these adolescent boys are of an age where they should be able to communicate with each of their parents whenever they wish, using technology they probably understand much better than their parents.
Even that would appear to be problematic. It is difficult to understand how things have become so bad so quickly - how these children have gone from, 18 months ago, being in their mother’s effective primary care to being in a shared-care arrangement, to now being in their father’s predominant care and practicing little or no time with their mother. It is not sufficient to say to a child, irrespective of their age or maturity, “If that is what you want, then so be it. I will support you in that endeavour.”
No doubt, if one or other of these boys came to their father and suggested that they wished to experiment with heroin, the father would not immediately go to his car, drive to the local hotel – assuming one were open – and seek out a drug dealer to purchase drugs for his child. He would dissuade the child and counsel them against their errant behaviour. That is exactly what needs to happen when these children express, as they do, that they do not wish to see the mother - to refrain from actions that would cause them to feel that way, such as disclosing the secret that was revealed to them, and to engage very directly with their rejection, not just telling them, “Your mother is a good woman,” but making very clear that their relationship is important to them, desired and required.
Children are, as Parkinson & Cashmore[1] have often described, given a voice, not a choice. That is so, notwithstanding the ages of these boys. Their right to know and be cared for by both parents is thus a reflection upon the discharge of duties by both parents. If arrangements had been unilaterally imposed in August last year, that is not good parenting. If children are rejecting a relationship and no step is taken to deal with the underlying causes of that and to change the children’s views when neither parent suggests the other is abusive, that is not good parenting.
[1] Patrick Parkinson and Judy Cashmore, The Voice of a Child in Family Law Disputes (Oxford University Press 1st ed, 2009).
I do not direct these comments purely at the father’s behaviours, although the example of the revelation of the mother’s prior pregnancy to the children is reprehensible. It is directed at both. These children require sensitivity and assistance through what is a difficult period in their life. Sadly, from one or both parents, and whether equally or otherwise, they have not received it. Beyond that, however, the children’s rights do support that every step that is available is now taken and every resource that can be applied is so applied to seek to address this disaster.
That requires a Child-Inclusive Conference, an Independent Children’s Lawyer and expedition. Indeed, if the matter is not expedited and simply heard in the usual course, there will be only one child left as X will have reached his majority. I do not propose to allow that to happen without as much intervention as can be achieved, to seek to remedy the difficulties these children now face. Those difficulties will, as counsel for the wife submits, follow these children in to their adulthood and have potentially life-long and life-affecting ramifications for them.
Beyond that, however, the objects and principles do not assist further.
I am then required by section 61DA of the Family Law Act 1975 (supra) to consider whether a presumption would apply as to equal shared parental responsibility. The presumption applies unless it is found non-applicable due to findings of family violence or abuse or is rebutted as a consequence of it being contrary to a child’s best interests. On the basis that findings are not and could not be safely available on the evidence, the presumption would apply. Whilst I am satisfied there are some bases upon which the presumption might be rebutted or not apply under subsections (4) and (3) respectively, I propose to apply it.
There is no reason why these parents should not both be involved in major issues and decisions for their children. The mother has made excellent decisions in the past and has been largely left to do so. The father is involved in those decisions as well and should continue to be involved.
As the presumption will apply, I am obliged to consider equal and substantial and significant time before any other time arrangement. I will deal with all issues at large by reference to section 60CC of the Family Law Act 1975 (supra), to which I now turn.
I must commence with the primary considerations, being the benefit to the children of a meaningful relationship with both parents, as well as the need to protect the children from physical or psychological harm through subjection or exposure or abuse, neglect or family violence - none of which are suggested in this case, and thus the prioritisation in subsection (2A) need not apply.
The benefit to these children of a meaningful relationship is now complex, not because of any deficiency in either parent – at least, not to the extent that each parent advances their own case as opposed to the criticisms they make of the other – but because of the circumstance created by this separation and their actions, whether one or both, thereafter.
These children are caught in the conflict between their parents. It is entirely regrettable but, at this point, it is a reality that must be addressed. It cannot be ignored. The Court cannot simply say these children are being highly resistant to a relationship with their mother. Clearly they are, although I do not accept that this reflects that their relationship is, in any way, damaged in a fundamental way. However, it must be acknowledged.
It would be counter-productive to attempt to have a nearly 16 year old child engage in something which, if he does not wish to do it, he will not. If he is not supported to do it, he will not. If he is not given the scaffolding and framework of the therapeutic assistance that this family so desperately needs, and has needed for some little time, it will simply make things worse.
I would not wish this mother to leave thinking that the court has any negative view of her as a parent. Far from it. She is doing what she can in a difficult circumstance post-separation and acknowledging the allegations she raises, which are neither dismissed nor found as proven, to navigate a relationship with the children.
Each genuinely believes, I fundamentally accept, that what they are advancing, what they are doing and how they are behaving is what is best for their children. Each needs to reflect upon what has occurred in the last six to 10 months as to whether that is, in fact, so as not to self-blame, but to understand and remedy those problems.
The benefit to these children of a meaningful relationship with both parents can, on one level, be achieved even if no time is occurring as the relationship between the mother and these children and, I accept, between the father and the children, is strong.
However, I do not propose to permit time to not occur. It must and it should. If these children do not practice time, that would be disadvantageous to them - their self-view, their self-perception - let alone simply missing the important love and affection of their mother which has served them well for all of their life to date. The benefit to the children will be continued but, at this point, and for the two months until it can be properly looked at and reviewed with greater resources than are presently available to this family, it should be – to adopt the language of counsel for the husband – somewhat conservative.
Conservatism is a difficult concept, however, when applied to a family. It is not a conservative approach to fail to engage with or respond to a problem - that is, to ignore the problem. It is not conservative, it is neglectful.
For this family, the problem must be engaged with, and that is through family counselling so that these children feel, as discussed in Rice & Miller [1993] FamCA 87.
amongst other cases, that they have been heard - that if they are presently saying they do not want to be forced to do things, without yielding to them and empowering them that they can make such decisions for themselves, that things are taken a little more slowly.
I do not for one moment believe that greater time would be disadvantageous to the children simplicitor. It would, however, be counter-productive to the sustainability of the arrangement. The benefit to these children of practicing a relationship with their mother is manifest and will resume and be Court-Ordered in relation to both one day per weekend and Tuesdays. That will create an obligation upon both parents to ensure that all that needs to be done to ensure that the time occurs is, in fact, done. It is no defence to point to a child’s age and say, “What am I to do,” the very issue dealt with by Fogarty & Nygh JJ in Stevenson & Hughes (1993) FLC 92-363.
Additional considerations, views
I have some difficulty with the children’s views or treating them as dispositive. I accept that the children are presently expressing rejecting attitudes of their mother, but the issue is that there is so much evidence that leads to at least the hypothesis being available that their views are not genuine, are not strongly held and are not free of influence from circumstances or persons. Thus, I do not place the weight upon their views, merely because of their chronological age, that I am urged to place upon them.
X is a vulnerable child. The mother’s evidence, no doubt reflective of her being the one providing his predominant care at that time, is that in his early adolescence, or late childhood, he was strongly bullied which has caused him now to be quite a shy and nervous child. Both children have the great difficulty of trying to make sense of their world, perhaps all the more difficult to make sense of in light of the spiritual framework within which this family operates. Their family is separated and broken apart. The school has, to some little extent, become involved.
All of those matters would make these children, on one view, perhaps just wish the whole thing would go away.
There is some force to the suggestion that the children may desire to live predominantly in their home. Indeed, at their ages, it may be that they are somewhat unconcerned as to which parent is living in the home, merely that their creature comforts are continued. But, certainly, they would have a desire, I have no doubt, to not be exposed to conflict and to not hear from each of their parents, or others, criticism of their parents.
All of those factors are weighing heavily on these children. They need some relief from it. That is best achieved, I am satisfied, not by simply yielding to their expressed view to not be bound by Orders - they are never bound by Orders, their parents are - but to ensure that they are practicing a relationship, hopefully with the support of parents not only as to the terms of the Order but its spirit, whilst receiving assistance and being given a voice which is not required to simply advocate for them for what they wish.
An Independent Children’s Lawyer has obligations under section 68LA of the Family Law Act 1975 (supra). They have an obligation to form their own independent view, based on all of the available evidence, as to what is best for children, not to be a mouthpiece for them. Accordingly, as the section makes clear, if the children express a view, the Independent Children’s Lawyer must make sure that the Court has evidence of the view, but they are not bound by it, nor need they put submissions that are consistent with the view. One would hope that the Independent Children’s Lawyer will bring that nuanced and appropriate approach towards the discharge of their duties.
At this point, the children’s views would suggest a more limited arrangement than the mother proposes, but far more frequent than the father proposes. It would also indicate that both children should be included.
Nature of the relationship of each child with each parent and other persons
There is nothing to suggest the children do have other than an excellent relationship with each parent.
The extent to which each parent has taken or failed to take the opportunity to participate, spend time or communicate with the children
Neither has. What is really at play here is the pre-June 2012 drafting, then contained in subsection (4)[2], the extent to which parent has interfered in the other’s capacity. The father’s interference – if I might adopt that language – is passive rather than aggressive.
[2] Family Law Act 1975 (Cth) s 60CC(4), as at 5 June 2012, as amended by Family Law Act 1975 (Cth) s 60CC(3)(c).
The father does not stand on the doorstep, screaming at the mother to go away, screaming at the children to go back inside. He simply accedes to and acquiesces with what the children express without exploring why it might be expressed. It could well be that he is entirely correct and their views are formed in their lived experience of their mother post-separation. Things can change. It may be that the mother is entirely correct and the children are strongly influenced by the father. It could be that both are correct or both are incorrect. It does not assist.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
The mother does not provide financial assistance, but she is not employed. She has probably lost, without any disrespect intended to her, any employment skills she had at the commencement of the marriage. She has been out of the workforce, providing unpaid but important work, parenting two children. The father, the mother complains, during the period of the equal time arrangement, was somewhat less than forthcoming with financial assistance on a regular basis. It is far from dispositive.
Likely effective change in the children’s circumstances, including separation from either parent
These children should be spending regular and predictable time with their mother. It should be part of their routine - something spoken of in detail in the evidence of both parties. That is a positive effect for these children. It is not specifically connected with the separation from any other person, but it is important to them.
Practical difficulty and expense
I incorporate here section 65DAA(5) of the Family Law Court 1975 (supra).
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live close to each other, both within proximity of the children’s school. They both have a capacity to implement an arrangement for the children’s time with each, including equal time, which they practiced for some four to six months. Yet it changed when the children expressed opposition and that opposition was simply accepted. It may be that the father has downplayed the strength of expression of the children’s views to him. It may be that his description of it is accurate although, as described, it is merely the children saying something and the father accepting it as what should be.
In any event, the parents can make an arrangement work and have demonstrated that it is so. I am satisfied that the father can, should he turn his mind to it, persuade, compel or cajole these children to do as he wishes and to spend time with the mother.
The capacity of the parents to communicate is not presently great, but that does not mean it cannot be improved. I do not propose to make Orders for family counselling at this point. As the parties will engage in non-family counselling therapeutic interventions, they need not be over-burdened or service duplicated.
Capacity of the parents to meet the children’s needs
This is an important consideration as the matter moves forward. If one parent is better able to support and encourage a relationship between the children and the other, that will demonstrate their ability to meet the children’s emotional needs, much more so than the other. At this point, there is nothing to suggest that the parties are not, should they so desire, equally capable.
Maturity, sex, lifestyle and background to the children
That is already canvassed above. These children are going through an awful time in their life and it is made all the more awful by the fact that this case is before the Court with parents who cannot cooperate or even take, without Court Order, the steps necessary to address and support the problems their children are facing. It compels the therapeutic Orders. It also compels that the children have each parent practicing a relationship with them whilst that process is engaged.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander, nor do the children.
Attitude
The attitude of the parents is already canvassed.
Family violence
Family violence is canvassed above. It is not dismissed or disregarded. It is merely not agitated by the parties as a compelling factor in this determination.
Family violence orders
There are none.
Whether it is desirable to avoid future proceedings
I am satisfied the best that can be done, in this regard, is to put in to place Orders that will be workable and sustainable and with some realistic expectation that it is within the capacity of each parent to cause it to be so.
The children are suggested to be estranged from their mother and it is proposed there be limited communication. The children are suggested to have clear views that should be taken into account and a right to have their voice heard in the proceedings.
Property
In relation to the property aspect of the proceedings, as I have already indicated, there is very little controversy. The only matter of any controversy is the wife’s Application that her gold jewellery be delivered up to her. Whilst the husband has, as I have indicated at the commencement of these reasons, indicated that as far as he is concerned, the wife has those items, I propose to make the Order. As already indicated, if the wife has them, the order is already complied with, if not, they need to be located and delivered up.
In that regard, the husband, by paragraph 54L of his affidavit, indicates that on the occasion when the mother came to the home with her friend, Ms G, that the mother collected certain items, but the father then identifies:
Ms Elburn then came to the door, asking about keepsake boxes, gold and medical records. I retrieved and brought down the extra keepsake boxes which X carried to the front door to give them to her. Ms Elburn and I had other conversations about necklaces, wedding rings and the like.
They would appear to be the very things that are sought to be delivered up. That does not suggest that the father concedes that he had the items at that time, but the fact that they were the subject of discussion suggests that:
a)They are important to the mother and thus, their withholding will generate further conflict and hostility, and, at the very least, resentment; and,
b)The discussion would suggest that, certainly from the mother’s perspective, the items were not included in the boxes already delivered up.
The conversation was cut short, the father suggests, by other matters. Accordingly, I am satisfied that the Order is appropriate. It is not an Order determining the rights and interests of the parties, merely possession or use of the asset. Thus, section 114 of the Family Law Act 1975 (supra) would give sufficient jurisdictional basis and the Court need only be satisfied that the Order is appropriate. I am satisfied that it is. The wife has possession or control of very few of the assets of the relationship. They are items of personalty which one would think she would retain at the conclusion of the proceedings without controversy. In any event, she should have their use, pending that determination.
Accordingly, and for these reasons, Orders are made as follows.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Associate:
Date: 22 September 2020
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