Enstone & Farnell

[2007] FamCA 614

FAMILY COURT OF AUSTRALIA

ENSTONE & FARNELL [2007] FamCA 614

FAMILY LAW - CHILDREN – Final parenting orders – Breakdown of father’s relationship with younger children – Family rupture – Potential to re-establish relationship

Family Law Act 1975 s60B(1), s60CC, s60CC(1), s60CC(2), s61DA, s65DAA(1), s65DAA(2)

APPLICANT: MS ENSTONE

RESPONDENT: MR FARNELL

INDEPENDENT CHILDREN’S LAWYER: Independent children’s lawyer

FILE NUMBER: MLF 752 of 2006

DATE DELIVERED: 13 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 13 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Dunemann Sutherland

COUNSEL FOR THE RESPONDENT: Mr N. Kanarev

SOLICITOR FOR THE RESPONDENT: Bayside Solicitors

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr G. Holmes

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Pearsons

Orders

1. That paragraphs (5), (6) and (7) of the orders made herein on 9 February 2006 be discharged.

1. Subject to paragraph (3) hereof, the husband spend time with the child of the marriage H born … March 1995 as follows:

   (a)on Sunday 24 June 2007;

   (b)on Sunday 9 September 2007;

   (c)on Sunday 9 December 2007;

   (d)thereafter, on the Sunday which falls on the second last full weekend in each school term, PROVIDED THAT if that day is 6 April, the husband spend time with H on the preceding Sunday in lieu; and

   (e)at such other times as agreed  between the parties.

2. That the time the husband is to spend with H pursuant to paragraph (2) hereof occur during periods H is spending time with her paternal grandparents, and to give force and effect to this order the following provisions apply:

   (a)H will spend time with her paternal grandparents on the days specified in paragraph (2) hereof between the hours of 11.00 am and 5.00 pm or such other period as H and the paternal grandparents agree;

   (b)The husband may spend all or part of the period H spends with the paternal grandparents with them;

   (c)Commencing in 2008, but only if daughter H advises the paternal grandparents that she is comfortable with the specific arrangement, the husband may spend part of his time with H away from the paternal grandparents’ presence;

   (d)The wife or her nominee will deliver H to and collect her from the home of the paternal grandparents or such other place as the wife and the paternal grandparents agree; and

   (e)In the event H seeks to change a date fixed by paragraph (2) hereof she may discuss another date with the paternal grandparents and if they can accommodate the change, it is requested they advise the husband of the new date and the husband’s time with H occur on that day in lieu of the day specified in paragraph (2) hereof.

3. That the father communicate with H as follows:

   (a)Subject to paragraph (6) (c) hereof, by telephone on one evening a week and to give force and effect to this order the following provisions shall apply:

   (i)Within 14 days hereof the wife shall advise the solicitors for the husband in writing of the day on which the telephone calls are to be made in each week, and in the event she does not do so, calls shall be made on a Wednesday; and

   (ii)Calls shall be made by the husband between 7.00  pm and 7.30 pm or such other time as is agreed between the parties; and

   (b)By sending gifts and/or cards to H on her birthday and at Christmas in each year.

4. That the husband may communicate with the child of the marriage E born … November 1992 by sending gifts and/or cards to her on her birthday and at Christmas in each year.

1. That the mother have leave to take the children from the Commonwealth of Australia for the purpose of holidays provided that:

   (a)the travel does not result in the husband not being able to spend time with H pursuant to paragraphs (2) and (3) hereof;

   (b)the wife shall give to the husband no less than 21 days notice in writing of such travel, including departure and return dates and destinations; and

   (c)the wife shall do all things reasonably necessary to ensure that during any period H is out of Australia pursuant to this order H either telephones or emails the husband no less than once per fortnight, and during each such period H is out of Australia the provision of paragraph (4) (a) hereof shall be suspended.

2. That the husband do all things reasonably necessary to ensure that the child of the marriage D born … April 1989 is not present on any occasion on which the husband spends time with H.

1. That each of the parties be and are by themselves, their servants and agents restrained from denigrating the other party or a child of the marriage in the presence or hearing of E or H and from allowing any other person to do so.

1. That the wife do all things reasonably necessary to authorise the principal of each school attended by E and H from time to time to provide to the husband, at his request and at his expense (if any), copies of the  following:

   (a)each report in respect of E and H;

   (b)each order form for a school photo for E and H; and

   (c)newsletters and notices routinely provided to parents.

1. That each party notify the other in the event that E or H suffers a significant injury or illness while in his or her care and keep the other advised of the name or names of each treating medical or like practitioner.

1. That as soon as practicable the wife provide a sealed copy of these orders to the principal of each school attended by the E and H and to the paternal grandparents.

1. That the independent children’s lawyer be discharged one month from this day or, in the event a notice of appeal is filed, upon determination of such notice of appeal.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That a copy of the reasons for judgment herein may be made available to the following people:

   (a)Dr N;

   (b)the principal of a school attended by E or H and, in his or her absolute discretion, any teacher or other person working with E or H at or through the school; and

   (c)the Department of Human Services, Victoria Police or any other agency investigating any allegation in respect of E or H.

1. That all extant applications be otherwise dismissed.

IT IS DIRECTED

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES  that pursuant to final orders made herein on 9 February 2006:

A.The husband and wife retain long term parental responsibility for the care, welfare and development of the children;

B.The husband and wife retain day-to-day parental responsibility for  the care, welfare and development of the children whilst in their respective care; and

C.               The children are to live with the wife.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 752 of 2006

MS ENSTONE

Applicant

And

MR FARNELL

Respondent

REASONS FOR JUDGMENT

1. The major issue to be determined by the court is the time the father is to have, and the communication he is to have, with the parties' youngest child, H, who is 12.  The parties have been able to resolve a number of matters, each deciding not to press for orders previously thought to be important.  In doing that they have focussed on the children's best interests, which is to their credit.

2. In addition to questions of time and communication, there are a number of other matters, relating to the children's health and education, the younger children's physical protection and the potential for the younger children to travel overseas.  I will deal with each in due course.

PARTIES

1. The father is 54.  He has been unemployed since 2004, when he lost or gave up his position as a company director.  As a result of that, he lost the car to which he had access.  He has not had a car since, which has some relevance.

2. The mother is 47.  She works in an educational institution, which means that she is able to fit paid work around her family commitments and is able to spend time with the younger children during their school holidays.

LEGAL PRINCIPLES

1. The provisions in the Family Law Act1975 relating to children rest on twin pillars.  The first is the importance to children of having a meaningful relationship with both parents;  the second is the need to protect children from physical and psychological harm.  These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). 

2. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

3. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

4. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

5. As referred to by counsel for the independent children's lawyer, the Family Law Act 1975 sets out the objects and principles which underlie the provisions relating to children.  The objects of the legislation are to ensure that the best interests of children are met by ensuring they have the benefit of their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests; that children are protected from physical or psychological harm; that children receive adequate and proper parenting to enable them to achieve their full potential; and that parents fulfil their duties and meet their responsibilities concerning their children.

6. The principles which underlie those objects include the principle that children have the right to know and be cared for by both their parents, and 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, including grandparents and relatives.

7. The objects point the way to an optimum outcome.  The first two are picked up in s 60CC(2) as the primary considerations when determining where children's best interests lie.  The second is reflected in the circumstances in which the presumption of equal shared parental responsibility does not to apply.  It is the best interests of children which are paramount.

EVIDENCE

1. The father relied on affidavits sworn by him on 4 June 2006 and 4 December 2006, an affidavit sworn by his father, the paternal grandfather, on 4 July 2006, and an affidavit sworn by the parties' eldest daughter, A, on 4 July 2006.  The mother relied on affidavits sworn by her on 7 June 2006 and 8 August 2006, and an affidavit of Ms P, sworn 8 August 2006.  Ms P is a counsellor with a sexual assault centre.

2. The independent children's lawyer relied on affidavits sworn by Dr N, a clinical psychologist, on 10 January 2007 and 3 February 2006, to each of which is annexed a report.  Dr N was cross-examined.  Reference was also made, in the course of cross‑examination of Dr N and in submissions, to two earlier reports prepared by a family consultant, Mr A, dated 1 March 2005 and 8 August 2005.

3. At the request of all parties, Dr N was called first.  Having heard her evidence, counsel for the independent children's lawyer and the father, and the mother (who appeared for herself) advised the court that they had agreed that the matters which remained for determination should be considered on the basis of submissions.  That occurred.  That means that whilst I have read the whole of the evidence on which the parties and the ICL relied, that evidence (save that of Dr N) has not been tested by cross-examination.  It must be said that the papers reveal a conflict suffused with great passion and something close to hatred.  The parties' present bitterly disputed competing narratives.  Over the last seven years, siblings have turned against siblings.  The children have been polarised, identifying strongly with the parent with whom each lives.  It might be too strong to say they have demonised the other parent but that is the flavour of the evidence.  In those circumstances, I place considerable weight on the evidence of Dr N, an objective and insightful expert.  I have done my best to place weight on the less contentious aspects of the parties' evidence.

CHRONOLOGY

1. The parties commenced cohabitation in about 1980 and married in October 1983.  Their first daughter, A, was born on … February 1986.  Their only son, D, was born on … April 1989.  Two daughters followed; E was born on … November 1992 and H on … March 1995. 

2. The husband deposed that in 1999, D began seeing Dr B as a result of D physically hurting his sister E; she had suffered a broken collarbone as a result of his abuse.  The father also deposed that D had counselling in 1997 for what he referred to as "anger issues" with his sisters. 

3. Around 1999, the mother was introduced to the Internet and chat rooms and, it is clear, began to spend enormous amounts of time using that medium.  The father produced records (annexed to one of his affidavits) suggesting that in one period, she accessed the net on an average of 11 hours a day.  Other evidence suggests it was more, and she may have spent even longer at the computer.  Whilst there is a dispute as to what was involved in her Internet activities, the mother does not now deny that she was obsessively focused on that medium to the detriment of the children who were in her day to day care.

4. The parties separated (or at least determined to separate) on 1 January 2000; the father deposed that it was on New Year's Day 2000 that he advised he would be leaving the family home.  He moved to live with his parents.  The children stayed with their mother.  H started school in 2000 and A was away at W, boarding, as part of her then school curriculum. 

5. In March 2000, the mother and all the children moved to a house in V.  It is in that period that her obsession with the Internet intensified and there is no doubt that the children were neglected.  She lost her job and stopped going to university.  On her own evidence, a third party made notifications to the Department of Human Services. 

6. In or about March 2001, A returned to live with her father.  The mother deposed to meeting Mr R in 2002; she formed a relationship with him which she has maintained.  In her affidavit, she does not say whether she met him through the Internet or in person, but it is clear the net has played a significant role in their relationship.  In about March 2002, D moved to live with his father and, as I understand the evidence, A returned to live with the mother.  By September 2002, A had moved back to live with her father and D.

7. On 22 July 2004, the mother filed an application in the Federal Magistrates Court, seeking an order that passports be issued for the two youngest children of the marriage, to travel with her to USA to spend time with Mr R.  On 13 August 2004, the father filed a response; he sought that that application be dismissed, that D live with him, that E and H live with the wife and that E and H have defined contact with him.  That month the father left his job at the company.

8. On 16 August 2004, orders were made, providing amongst other things for the issue of the passports.  On 7 September 2004, further orders were made, providing for the release of the passports, that D live with the father, that E and H live with the mother, that the father have defined contact with E and H and that the mother be permitted to travel to the United States with the two youngest children.  The mother and E and H travelled to America to visit Mr R that month.

9. In the course of the Federal Magistrates Court proceedings, a report was commissioned from Mr A, a family consultant based in this court, and his first report was released in March 2005.  That demonstrating the intractable nature of the parental dispute, an order was made for the children to be separately represented. 

10. On 9 May 2005, the father filed an amended response and on 16 May, further orders were made, requiring E and H to attend on Mr A again for the purposes of the preparation of a supplementary report.  That was done.  His second report was released on or about 8 August 2005. 

11. On 16 September 2005, final parenting orders were made in the Federal Magistrates Court.  They provided for D to live with the father, and for E and H to live with the mother.  The father was to have contact with E and H on each alternate weekend, from 5 o'clock Saturday to 5 o'clock Sunday, for 15 nights in the long summer holidays and for one-half of each midyear school term holiday period. 

12. The father had some very limited contact with the younger children pursuant to those orders.  The last such contact was on 8 October 2005.  His evidence was that contact went very well that day; he said it was literally the first time ever that D had not shouted at his sisters or intimidated them.  However well he thought that contact had gone, he was then bitterly disappointed to be advised that the children would not be coming again, as E had alleged she had been sexually abused by her brother, D, when the parties lived together and, indeed, after separation.

13. Shortly prior to E making that disclosure, the behavioural problems she had been exhibiting were sufficiently critical that she had been assessed through a mental health service by a psychiatrist, Dr L.  Dr L's assessment was completed just prior to E disclosing the sexual abuse.  E was referred to a sexual assault centre and, some time later, to a counsellor with whom she clearly established a rapport, being Ms P at the sexual assault centre.  Understandably, the allegation had the effect of a tornado running through a family already demonstrating a significant degree of dysfunction.

14. A was diagnosed in 2001 with a major depressive disorder, with which she has struggled.  When the father swore the last affidavit on which he relied in June 2006, A was completing first-year arts at university.  He deposed to her spending some 6 weeks as an inpatient at a Clinic in 2005.

15. In this context, on 10 October 2005, the wife filed a further application in the Federal Magistrates Court seeking that the father's contact with E and H by suspended.  On 25 November 2005 he filed a response seeking that her application be dismissed, and that a family report be prepared by Mr P, with a particular emphasis on the welfare of E "and to explore whether she has been subjected to sexual abuse".  That day he also filed an application seeking that the mother be dealt with for contravention of the parenting orders.

1. On 30 November 2005 orders were made in the Federal Magistrates Court to ensure the two youngest children were separately represented.  A family report was to be prepared by Dr N, who was then working with Mr P.  Orders provided for the husband to have telephone contact with the two youngest children on each Tuesday, Thursday and Sunday, and for the husband to provide a written undertaking that he would not allow the two youngest children to come into contact with D during any period of contact.

2. Those orders also provided for the wife to travel to the United States with the two youngest children between 28 December 2005 and 26 January 2006, an order the father alleged she breached by leaving earlier, with the effect he was not able to speak with or see the children at Christmas.

3. On 23 January 2006 the first report of Dr N was released.  It makes hard reading and that must have been so for each of the parties.  It pointed up the very significant dysfunction operating within the family and the extent and consequences of the family fracture.

4. On 9 February 2006, again in the Federal Magistrates Court, orders were made which discharged all parenting orders relating to the two youngest children and provided that they reside with the wife.  The father was to have contact by phone, again on Tuesday, Thursday and Sunday between 7.00 and 8.00; the mother was to initiate the calls.  The father was able to see H and E at the children's weekend sports activity and otherwise as agreed.  These were interim orders.  The applications for final orders were transferred to this court for further hearing. 

5. The father's evidence is that on 19 February 2006, about 10 days later, he spent some time with H, in the company of his parents. 

6. On 3 March 2006, the mother filed an amended application, which was met by an amended response on 27 April 2006.  Procedural orders were made by Registrar Mestrovic on 8 May to move the matter to trial.  The father then filed a further amended response. 

7. On 2 October 2006 the case came before Mushin J, for final hearing.  I cannot say what occurred but further procedural orders were made by him on the following day (3 October 2006) and the case adjourned.

8. On 22 November 2006 the mother filed an application seeking to travel with the youngest children to the United States between 21 December 2006 and 26 January 2007, to which the father filed a response on 4 December 2006.  On 7 December 2006, Mushin J discharged paragraph 9 of earlier orders made in the Federal Magistrates Court on 9 February 2006, which restrained the parties from removing or allowing the children to be removed from the State of Victoria.  On 8 January 2007, an updated report of Dr N was released.  It was in those circumstances then that the matter was relisted for trial and came before me yesterday. 

9. At one stage all then parenting orders were discharged until further order.  I propose to discharge that order and leave on foot, with the consent of all parties, the order made on 9 February 2006 which provided for the parents to retain that which now would be called joint parental responsibility and then was called long time parental responsibility for the care, welfare and development of their children.  Those orders also provided that E and H were to live with the mother and that order will continue in force.  New orders will relate to time and communication between the father and H, and the specific issues orders to which I have referred.

10. The litigation has been on foot for a long time.  An effect of litigation can be to focus people's minds on the negatives and make it hard for them to focus on the positives.  That makes it hard for families to move on with their lives and it is likely this has occurred in this case.

PROPOSALS

1. The independent children's lawyer proposed that the father be able to spend time with H on at least six occasions in each year, that time to be during periods she and E were spending time with their paternal grandparents.  He proposed the period between 11.00 and 5.00 on specified Sundays.  Some were in proximity to H's birthday, or the father's birthday, or to Easter or Christmas, and he supported the father's wish to have one of them on Boxing Day.  He also proposed communication via telephone and webcam each Wednesday between 7 and 7.30 pm.  He sought that the husband do all things to ensure that H was not brought in the presence of her brother D; that the wife do everything necessary to ensure the husband was kept advised of information relating to the younger children's health and education and that both parties be restrained from denigrating the other in the presence or hearing of the children.

2. Counsel for the father adopted a number of those proposals, making submissions about the appropriate allocation of dates were there to be an order for six contacts in each year.  He sought orders for the paternal grandparents to be in substantial attendance, leaving open the potential for him to spend some time alone with H.  He sought to communicate by phone and webcam.  He did not oppose the injunction relating to D, and sought orders that would mean he was kept informed of significant matters relating to the children, including issues relating to their health and education.

3. In addition, the father sought an order that restrained the children's travel outside Australia to 30 days in each year, that such travel not to be during school terms, or such as would interfere with any of his contact.  He also proposed the use of a communication book; he thought this might assist him spending productive and enjoyable time with H at his parents' home, or in his parents' company. 

4. A submission was also made for a watch list order of a conditional sort.  I took his counsel as wanting to express his client's genuine concerns at the potential for the children's residence to be located other than in the general area in which they now live.  He also feared that the mother would take the children overseas, and that he would not be able to enjoy time with them pursuant to court orders.  I accept that to be his position.

TIME WITH H

1. I deal first with the question of the time the father is to spend with H.  It needs to be borne in mind that the idea of spending time with her father, whilst at her grandparents' home or in her grandparents' company, was an idea of H's.  What she envisaged (this is clear from Dr N’s report) was spending time with her paternal grandparents, who she clearly loves and who she clearly trusts, and spending all or part of that time with her father, too.  What was envisaged was not spending time with him, supervised by the paternal grandparents.  In my view, this is an important distinction.  H suggested three occasions in each year; how she fixed on that, none of us can say.  It was an idea that originated with her, not one put in her mind by anyone else.  Dr N expressed concerns that she may have made the suggestion out of a wish to please and to placate, (potentially, a wish to please the father or, indeed, Dr N) and to be a peacemaker.  She may have been keen to resolve a problem which she perceives, even as a young girl, to be a source of very considerable tension and stress in her parents' lives.

2. What is very clear, having heard Dr N, is that any such order is a gamble. Success is not guaranteed.  By "success", I mean the restoration of a meaningful relationship between H and her father.  There is a powerful argument that that aim is more likely to be achieved if the means to achieve it are consistent with H's wishes and desires, and if H believes she is being listened to.  Having read the earlier report of Dr N, it is important for the court to keep in mind the nature of the interaction Dr N observed; the court should not react in an uninformed or, possibly, nostalgic way and ignore the extent of the breakdown in the relationship between the two younger girls and their father.

3. A theme of H's comments when with Dr N was her distress that, from her perspective, the father has not accepted responsibility for their failed relationship; he wants her to do the work necessary to rebuild it.  That is her perception.  She is a young girl but she is a very mature, articulate and confident young girl; by her suggestion, she is taking on responsibility for building a bridge.

4. From the bar table, the mother advised that E had indicated, as recently as last night, that despite her own estrangement from her father and the wish she expressed to Dr N not to spend time with him, she would or might accompany H on any visits to her grandparents at which the father was to be present.  She would do this out of loyalty to her sister.  That would be a generous thing for E to do.  It might also make it easier for H.  Anything which has the potential to create a window of opportunity for E herself to be open to acknowledging her father's role in her life would be in E's best long‑term interests.  I speak at this stage of acknowledging that role, not necessarily of spending time with him.  There is a good deal of literature about the potential long‑term effects on children who idealise one parent at the expense of demonising the other.  Children act on their own experiences, and those experiences inform their views, but there could be an incidental long‑term benefit to E were she to accompany H to their grandparents’ home.

5. The mother, E and H are still dealing with their grief at the relatively recent death of the mother's own mother.  Her importance to those three is powerfully conveyed in Dr N's report.  The fragility of that unit of three must be considered, as well as the vulnerabilities of the three individuals.  The father's position, his wishes and his relationship with his daughter must also be considered.

6. In her second report, Dr N said this:

   I consider that if [the father] wants to rebuild his relationship with [E] and [H], it will take a concerted effort on his part and a major re‑evaluation of his outlook.  [E] and [H] very clearly told me they do not want to hear their mother criticised and want to see genuine interest in them from him.  In light of [the father’s] rather rigid personality style I doubt whether that is possible.

   The only way I can see this family progressing in the future is for [the father] to gratefully accept [H’s] proposal and see her regularly, if infrequently, in his parents' presence and to desist from harassing her with questions or criticising her mother.  From such a beginning it may then be possible for [the father] to repair his relationship with [E].

   I would expect that such an arrangement would quickly break down if there was any pressure brought to bear on [H], and as a consequence, little hope for any future arrangement.  While [A] could be a part of this process, it may be better to move slowly and wait until she is in recovery, and avoid the risk of her psychiatric problems upsetting tentative and vulnerable beginnings.

7. That, and the factors to which I just adverted, satisfy me that the court should err on the side of caution when looking at the number of visits in each year.  On the other hand, the court must take into account the father's fervent desire for the visits to be more frequent, the independent children's lawyer’s support for more frequent visits, and Dr N's concession (when cross‑examined yesterday) that three visits a year is not really enough to build a meaningful relationship and that there is "something to be said for six".  Her evidence fell a little short of a wholehearted endorsement but it certainly was not negative.

8. Having regard to all the evidence, particularly Dr N's expert opinion and, the evidence of her observation of the father with the two girls for the first report, (in December 2005) and the parties' views about what would be best, I propose to make an order which will provide for four visits in each year.  The visits will be tied to school terms.  School provides a structure for school‑aged children, and will provide that structure for H for some time.  One visit a term is a fixed arrangement that can be accommodated.  That will provide the bare bones.  If all goes well, there could be more visits in the years ahead.  I am satisfied such an arrangement will be in H’s best interests. 

PRESENCE OF GRANDPARENTS

1. I then need to determine whether the grandparents (or one of them) should be present all the time, or whether they should be in substantial attendance.  When I asked Dr N what she thought would happen were H to arrive and discover her grandparents were not there, her immediate response was that H would want to get back in the car.  In her opinion, H remains frightened of her father's anger and feels pressured by what she sees as his focus on denigrating her mother.  What she would welcome are genuine overtures, with no ties.  For that reason, I do propose to order that the father spend time with H during the periods in which the paternal grandparents spend time with H.  I will include a proviso which allows H and her father to spend some time together if H tells her grandparents she would like to do that. 

CHOICE OF DAYS

1. I move to the question of the specific days which was as hotly contested as the number of days per annum.  The father wanted one of the days to be near his birthday (… June), one to be near H's birthday (… March), and one on Boxing Day.  A parent's birthday is likely to be of more significance to the parent, than to a child.  It is interesting that one of the examples Dr N gave of the parties' respective intransigence (and she gave an example of the mother’s intransigence, too) –was that when the children wanted to change a contact visit with their father, a change which would have resulted in them seeing him on his birthday, he was not prepared to agree to that change.  That is a compelling example of a focus on his interests, not theirs.

2. For whatever reason, the father did not take up Dr N's recommendation in her second report that he send a card or a present to the girls on their birthdays. That is an unfortunate omission and not consistent with his expressed view of the importance of those dates.  It is hard not to see his focus as being on visits at times which are important to him, rather than times which are important to the children.  Dr N said that the lack of any proactive communication since 2006, such as a birthday card, would have “raised the bar with [H]”; H's perception will be that, since last December, her father has done little or nothing to pursue a relationship with her.

3. I understand why Boxing Day is sought by the father; many parents hope to see their children as close to Christmas Day as possible, regardless of the dynamics or traditions of the particular family.  He was candid that such an order would mean the children would not be able to travel to the United States to spend time with Mr R until after Christmas.  It would mean they could not spend time in USA with their mother on her birthday, which is in December.  His rationale was that a “tradition” arose after separation, of the children seeing their paternal grandparents and him on Boxing Day.  While that occurred for some years, the “tradition” cannot have been in place for very long, given the breakdown of his relationship with his younger daughters in 2005.

4. From the mother's perspective, this is simply a ploy to disrupt her time, and the children's time, with Mr R in the United States.  It has nothing to do with an alleged tradition.  In her final submission, she referred to the fact (to which she deposes in her affidavit sworn in July 2006) that in 2001, 2002, 2003 and 2004 when the girls sought to see their father on Christmas Day, they were advised by him that existing restaurant bookings could not accommodate them.  It was for that reason that the girls saw his family on Boxing Day.

5. Having heard Dr N's evidence and read her reports, the court can find that were H to get one whiff of a notion that the dates imposed by the court were imposed for the benefit of the father, rather than her benefit, or were going to interfere with something seen as integral to her secure life with her mother and sister, (being time with Mr R in the USA) the prospect of this contact bearing fruit would be significantly reduced.  It is spending time with H that is important, not the proximity of that time to particular dates which may be important to society as a whole or to individuals.  What is important is that there an attempt to implement contact while H is still open to it.  It may not be a question of striking while the iron is hot; the iron might be only lukewarm. But if an attempt can be made sooner, rather than later, I am satisfied it is likely to be more productive.

6. I am also satisfied that at this time, the contact periods should occur during school terms.  Children of these children's ages often have activities during school holidays.  Visits during school terms should not discommode the grandparents or, indeed, the father.  The evidence does not disclose if D is in year 12 this year.  He was in year 11 last year.  The father, too, may be still constrained by school terms.

7. The second school term concludes on 29 June 2007 and the third term commences on 16 July 2007.  I propose that the first period of time be on Sunday, 24 June 2007.  That will be in close proximity to the father's birthday but that is not the reason I have chosen that date.  Nevertheless, his family can celebrate his birthday then, and that may be enjoyable for H.

8. The next two contacts in 2007 will be on Sunday, 9 September 2007 and Sunday, 9 December 2007.  Those are Sundays in the second-last full weekend of the following two school terms.  The father’s time with H can be all or part of the period H spends with her grandparents.  Orders will provide for the father to spend time with H whilst she is spending time with her paternal grandparents.  To give force and effect to those orders, I will set out a structure for the family and the grandparents.  I am very aware that the paternal grandparents are not here.  I accept what I have been told about their ongoing relationship with their grandchildren, and their willingness to be involved in these arrangements.

9. Orders will provide that H's time with her paternal grandparents' be between 11 a.m. and 5 p.m. or such other period as H and her grandparents agree.  That is the way it has been operating to date.  The father may be present for all or part of that period.  Orders will also provide that, from 2008, if (and only if) H advises her grandparents that she is comfortable with it, the period can include a period when the grandparents are not present.  They will still need to be in substantial attendance for the balance of the period.

10. H will be 13 in March 2008.  She is confident about her relationship with her grandparents.  The mother herself has said that the paternal grandfather is very sensible, and flexible.  The court must trust them to do what is best for their granddaughter; if the mother is prepared to trust them and if H is prepared to trust them, it behoves the court to do likewise.

CHANGEOVERS

1. The mother or her nominee will deliver H to, and collect her from, the grandparents' home, or such other place as the mother and the grandparents agree.

DATE CHANGES

1. I also propose to order that if H seeks to change a date, she discuss another date with her paternal grandparents.  If they can accommodate the change, it is requested that they advise the father of the new date, and contact should occur on that date in lieu of the original date.  I make it clear - this is directed towards you, Ms Enstone - that that is not an invitation to arbitrarily change the specified dates.  The order is made to accommodate the reality of a child on the cusp of a teenager's life.  For example, if there is a graduation party on a Sunday, when she would otherwise visit her grandparents, she will not be happy to be told she cannot go to the graduation party.

OTHER COMMUNICATION

1. In relation to phone and other communication, the court needs to look at the evidence.  Dr N's evidence was that the girls feel as if the father imposes his fatherhood on them, despite them feeling very little connection with him.  They want a relationship rather than feeling he is simply making a point.  It must be hurtful for him to hear that reiterated by Dr N however the court must act on the evidence before it.  When asked about phone and webcam communication, Dr N said that H expects her father to “jump through a few hoops” to show that he does want a relationship, as opposed to making a point.

1. The independent children's lawyer supported phone and webcam communication each Wednesday, between 7 and 7.30 pm.  I raised the potential for email, a medium to which H may be more responsive.  The father supported that, but only in addition to webcam and phone communication. 

2. The mother has submitted that H does not want to be required to use a webcam to take calls from her father.  Dr N did not see the lack of visual connectedness - that is, being able to actually see the person on the other end of the phone - as the reason H is monosyllabic, if she is monosyllabic.  She described H as a very articulate girl, who likes to talk on the phone.  The phone, the technology, is not the problem. 

3. In the course of observations for the preparation of her first report, Dr N observed the father with both E and H.  Both girls greeted him in a friendly but wary manner, and he responded.  He immediately asked if they were coming for the next weekend.  When they said no, he ignored them, saying, "That's that then," to Dr N. 

4. I refer to this because there was then a conversation between the father and

   
   

   Dr N relating to the order which provided for him to have phone contact with the girls three times a week.  The order had been made shortly before that interview in Dr N's rooms.  After saying that he was unhappy about not having seen E for two months, the father spoke with Dr N about the orders for phone contact, made on 13 November.  Dr N reported that the father explained that he did not want to speak to the girls on the phone, as he found that form of contact unsatisfactory.  He had elected not to speak to them that way; his objection was based on the principle that telephone contact "deviates a relationship".  He went on to explain what Dr N described as rather rigid ideas about what constituted "contact", and the type of relationship he insisted on having with E and H, not on other terms.  Dr N said he stated plainly, "I'm the sort of person that if I believe it should be that way, I'll bite my nose off to spite my face."  That was a candid self‑assessment. 

5. I do not doubt that people can change; the court often sees litigants change in the course of litigation.  Nevertheless, that is the climate of the children’s last session with their father.  It is hardly surprising H is not all that forthcoming on the phone. 

6. In my judgment, in this area the father must follow H’s lead, and be responsive to her.  He must be proactive and ring her, but, he must also be sensitive to her position.  I do not doubt he would like to see her on the webcam, but that is not the focus of the court's decision.  That focus must remain squarely on H's best interests.  Having a relationship with her father is in her best interests, but to achieve it requires very sensitive and incremental steps.  I do not propose to order that H, against her wishes, communicate with her father by webcam.  She may do so if she asks that it be done; if the relationship progresses, that might be what she wants to do.  Similarly, she may email her father and they can communicate that way.  Those options are open to her but will not be imposed.

7. An order will provide for phone calls to be made by the father on one day a week, between 7 and 7.30 pm.  The independent children's lawyer proposed Wednesday.  I am not sure if that was arbitrarily picked as being the middle of the week or if it was picked with something specific in mind.  The order will allow the mother to nominate, in writing to the father's solicitors, within 14 days, a day of the week.  If Wednesday is fine for her Wednesday it will be.  But if H regularly has basketball practice or another commitment on Wednesday, that would not be sensible.  Similarly, if the parties can agree on a different time frame, that can be done. 

8. I will also provide that the father communicate with both girls by gifts and cards sent at birthdays and Christmas.  I am satisfied, based on Dr N's recommendation, that would be a very constructive thing for him to do.

OVERSEAS TRAVEL

1. I would certainly commend the father for raising this matter now.  The litigation history summarised demonstrates that the parties have come to court a number of times arguing about the issue.  Litigation has the capacity to impact on children's welfare because it stresses their parents and thus their parenting capacity; orders should, as far as possible, minimise the potential for further litigation. 

2. From the father's perspective, the mother's relationship with Mr R has been at the heart of the family's disintegration.  He is unlikely to alter that view.  The mother has a very different perception.  She is unlikely to alter that view.  Her relationship with Mr R has endured, despite geographical factors, and there is no reason to doubt the accounts the girls gave to Dr N of their affection for

   
   

   Mr R.  In my judgment, it is likely to be better for the children's relationship with their father if he is not seen by them to be imposing an arbitrary barrier on their time with their mother during their school holiday period or, indeed, at all.

3. The evidence supports a finding that both girls are now psychologically well, and doing well at school.  Despite my criticisms of the mother for her neglect of the children's needs during the period she was obsessed with the Internet, the court can now find she is responsive to their needs.  In her final submissions she spoke of them teaching her to be a good parent; there is something of that in many good, long‑term, parental relationships. 

4. I do propose to make orders that will provide for the children to travel outside Australia, provided that the travel does not result in the father not being able to spend time with H pursuant to these orders.  He is to be given no less than 21 days' notice in writing of the travel; that is 21 days' notice prior to the departure date.  Notice must include details of departure and return dates and the travel destination.  While away the mother must ensure that H telephones or emails her father no less than once a fortnight.  I make it clear to the mother that I am making her responsible for facilitating that.

OTHER ORDERS

1. I do propose to make orders (not opposed by any party) that D not be in H's presence.  Dr N referred to the potential, way down the track, of some contact between siblings.  It is to be hoped that that may occur.  But it would be premature now and H must not be put at risk of harm.  Orders will provide for the father to obtain information from the children's schools, such as school reports and application forms for a photograph.  The order will require the mother to authorise the school to do that.  It is the father who must make arrangements with the school.

2. Orders will provide that each of the parties ensure that the other is advised of any significant illness or accident and advise the other as soon as practicable of the child’s treating medical or like practitioners.  I understand the privacy issues, to which the mother referred.  However, no‑one has sought that the existing orders for shared long‑term parental responsibility should be discharged and the order I will make is consistent with that shared responsibility.

3. Orders will provide for all extant applications to be dismissed.  The reasons for judgment will be transcribed and a copy will be made available to the parties.  The orders will also provide that the reason can be made available to a number of people, including Dr N, the principal of any school attended by H and anyone working with her at that school, and to the Department of Human Services or anyone investigating any allegation in the future.

4. It is my practice to send a copy of reasons to the expert who has given evidence, and that will be done.  I make the order in respect of others who may be involved in the children’s lives in the future, because the legislation otherwise precludes them reading the judgment.  It is to be hoped there will be no further involvement by the Department of Human Services or any other investigative body, but comity between courts and our joint focus on children’s best interests mean it would be risible for DHS, police or the Children’s Court not to have access to these reasons.

5. I will order that each of the parties be and are restrained by themselves, their servants and agents from denigrating the other in the presence of or hearing of H and E. 

COMMUNICATION BOOK

1. The father sought an order for the use of a communications book.  As I hope I made clear, that is often very useful when children move frequently between homes.  But the orders made today are not orders for frequent moves.  What is being implemented is a window of opportunity for a child and her father to move towards re-establishing their relationship.  It is a maximum of six hours' contact, four times a year, for a little girl who is 12.  She presents now, fortunately, as a happy-go-lucky, intelligent, articulate, mature girl.  I am confident enough in the mother's parenting that if there were issues (for example) relating to an allergy or medication that needed to be taken, she would sent it to the paternal grandparents.  I do not think in those circumstances a communication book is going to be of any use and I do not propose to make that order. 

2. I add (having regard to the presumption of equal shared parental responsibility) that it clearly would not be in H’s best interests to spend equal time with both parents or more frequent time with her father than ordered.  Any such orders would be a recipe for disaster; the father’s own proposal (for six contacts a year) acknowledged that.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown

Associate: 

Date:  22 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ENSTONE & FARNELL