F and M
[2003] FMCAfam 373
•15 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| F & M | [2003] FMCAfam 373 |
| FAMILY LAW – CHILDREN – Best interests – arrangements for contact in situation of high conflict between parties. Family Law Act 1975, ss.60B, 65E, 68F B and B: Family Law Reform Act (1997) FLC 92-755 |
| Applicant: | P G F |
| Respondent: | K J M |
| File No: | DNM2014 of 2002 |
| Delivered on: | 15 August 2003 |
| Delivered at: | Alice Springs |
| Hearing dates: | 12 & 13 August 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| The Applicant in person: | Mr P Ford |
| Counsel for the Respondent: | Mr R Goldflam |
| Solicitors for the Respondent: | NT Legal Aid Commission |
| Counsel for the Children's Representative: | Mr J McBride |
| Solicitors for the Children’s Representative: | John McBride |
ORDERS
The children of the relationship, C R F born
4 November 1992, M K F born 14 July 1994 and J O P F born 25 October 1996, live with the mother and she be responsible for making all decisions concerning their day to day care, welfare and development.That from 18 October 2003, the father have contact with the children as follows:
(i)each alternate Saturday between 10.00 am and 2.00 pm;
(ii)at such other times and on such other occasions as the parties may agree from time to time.
The mother deliver and the father return the children at the beginning and conclusion of each contact period at the premises of the Alice Springs Family Contact Centre and that the father be at liberty to take the children away from the centre during periods of contact.
In the event the father elects not to take up the contact as outlined in order 2 hereof, he shall advise the child representative in writing by 4.00 pm on 1 October 2003.
That the child representative inform the children of the orders made today either personally or through the agency of a Family Court counsellor or expert nominated by him after 1 October 2003.
That each of the parties attend any parenting course or counselling as directed by the child representative.
That the mother authorises the principal of each school attended by the children from time to time to send to the father a photocopy of each school report about the children and indeed a copy of the order form for each school photo of the children.
That the parties keep each other informed of their respective addresses in writing.
That each of the parties be and are hereby restrained from denigrating the other party or discussing any aspect of these proceedings and the judgment delivered herein in the presence or hearing of the children.
Subject to order 11 herein, the proceedings are adjourned to the duty list in the August 2004 sittings of the Court at Alice Springs.
In the event the father fails to give the notice as outlined in order 4 hereof, the child representative is to inform the Court and the solicitor for the mother that the proceedings will be dismissed.
That these reasons for judgment be transcribed and provided to each of the parties and to the coordinator of the Alice Springs Contact Centre, but not released or discussed with anyone other than the parties and their legal advisers and relevant workers at the Centre from time to time or any other person whom the child representative considers appropriate in order to give effect to order 6 hereof.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALICE SPRINGS |
DNM2014 of 2002
| P G F |
Applicant's Name
And
| K J M |
Respondent's Name
REASONS FOR JUDGMENT
Introduction
These are ex tempore reasons for judgment in the matter of F and M, which I heard in Alice Springs on the 12th and 13th August 2003. Due to the complexity of the matter, it will take me some time to deliver the reasons this morning. However I have an obligation to the parties to explain the reasons why I have decided to make the particular orders that will be made in this case.
It is a difficult case, which presents no easy solution. It regards parenting arrangements for three children: C R F, who was born 4 November 1992, M K F, who was born 14 July 1994, and J O F, who was born 25 October 1996.
The parties to the proceedings are the children’s parents – their mother K J M, “the mother”, and P G F, “the father”.
The father is the applicant in these proceedings. He acted on his own behalf in the hearing before me on the 12th and 13th August 2003. He has filed no up to date material. He is upset by these proceedings and feels at the end of his tether. He has been tempted to walk away from the proceedings on more than one occasion as he feels frustrated by them and the attitude of the mother to previous orders of the Court that have been made.
The children have lived with their mother for the majority of their lives to date. From time to time orders have been made for the father to have contact with the children in one form or another. It is common ground between the parties that these contact orders have met with considerable difficulty in the past. Accordingly, it is the father’s position that if the children are going to have any meaningful relationship with him, it will be necessary for there to be a change of residence at this stage. The father believes that any further orders for him to have contact with the children are doomed to failure because either consciously or unconsciously, the mother is vehemently opposed to contact and this is something of which the children are aware and which causes them great distress when they are compelled to have contact with their father against their mother’s wishes. This distress is manifested by the children themselves being resistant to contact when living with the mother. This resistance causes the father great emotional distress.
The mother’s position, although not formally set out in her material, is that the children should essentially decide what contact they want with their father and that this should happen when they are older. She opposes any change of residence. She believes that the children are greatly distressed at the prospect of having contact with their father and that their current strong wish is that they do not want contact with their father in any form.
Needless to say, the father distrusts the mother’s motives in these proceedings and believes that the children are being manipulated by their mother to their ultimate emotional detriment.
The parties have been involved in litigation with one another over many years. The level of their mistrust for one another is high indeed. In the past 12 months or so, various orders have been made for the father to have contact and recommendations have been made for the parties and the children to have counselling of one type or another.
A psychological assessment was prepared and also a family report. The psychological assessment was prepared by Mr Tyrell, a clinical psychologist. The family report by Mr Law.
The children have been separately represented in the proceedings since 1 July 2002. Their representative is John McBride, an Alice Springs solicitor. Mr McBride has reluctantly reached the conclusion that the degree of difficulty in this case is so great that no contact orders should be made. He does not support a change of residence at this stage.
Mr Goldflam, who appears for the mother, suggested that the proceedings be adjourned to give the children breathing space and to enable enquiries to be made as to the availability of appropriate counselling and psychological support for both the children and the parties. He cannot point to any specific services available in Alice Springs at present in this regard. The father is vehemently opposed to further professional intervention in respect of the children.
On two occasions the parties reached agreement in respect of the matter during the hearing but both subsequently resiled from their agreement. Initially the father agreed that he would have two hours supervised contact at the Alice Springs Family Contact Centre each week. This was recommended by Mr Law, the family report writer. Subsequently, he withdrew his consent. Essentially, he believes this contact will not occur. The children do not like the Centre, nor I suspect does he. He also believes the children will be influenced by their mother not to go and so it is a pointless exercise.
Subsequently, after the hearing had proceeded on 12 August 2003, the parties agreed to a process of graduated contact, not involving the supervision of the Contact Centre, but allowing the father to collect the children from their school and returning them to the mother at the Contact Centre. The mother agreed to this proposal but overnight advised the children of what she had agreed. The children, especially C R, reportedly became very distressed and apparently each of them said they would not see their father on this coming Friday, when the regime was scheduled to begin.
The issues
I am gravely concerned that these proceedings have the potential to cause emotional harm to the children. I am concerned that the children have become enmeshed in the vitriolic and longstanding dispute between the parties. I am concerned at the number of interviews and examinations the children have had as a result of these proceedings.
Sadly, neither party is a particularly insightful parent and, in the past, both have displayed an unwillingness to involve the other parent in the care of the children. The antipathy they have for one another is deep and longstanding. There is no prospect of it reducing in the future. Accordingly, there is a real risk of permanent damage being done to the children, if it has not already been done so, by the level of dispute between the parties.
The options open to the Court seem to be as follows:
·a change in residence – this would enable the children to develop their relationship with their father. There is no guarantee however, that the father would foster the children’s relationship with their mother. In any event, he does not have suitable accommodation in which they could live at this stage. He also proposes ultimately going to live in Berri in South Australia, which poses great difficulty in itself;
·the children continue to live with their mother and no contact orders are made due to the degree of difficulty and the inevitable stress that the children will be placed under if such an order is made;
·an order for supervised contact is made as recommended by Mr Law and following a report from the supervisor, the question of contact is revisited. The difficulty with this recommendation is that both parties believe that it is unlikely to be successful and Mr F has indicated he will withdraw from it;
·an alternative regime of contact is designed not involving supervision. This apparently is vehemently opposed by the children;
·the proceedings are adjourned to give the children a rest from stress and to investigate professional support for them and the parties in an attempt to see if the level of tension may be abated and the parties themselves led to greater insight in respect of their obligations and duties as parents.
Background
It is now necessary to briefly set out the various matters which bring the party to this point. The father is 54. The mother is aged in her mid-40’s. Both have suffered recent periods of prolonged ill health. They are both in receipt of pensions and the reality is that this is the situation that is likely to prevail for some time to come.
The parties met and began to live together in June of 1991. They lived in Kalgoorlie, Broome and other locations in South Australia. They separated before J was born in February of 1996. The mother characterises their relationship as being one of violence and of verbal abuse inflicted on her by the father, to which C and M were exposed. She also says the father was a heavy drinker. The father admits drinking but denies being violent, apart from on one occasion. These issues were not explored in the hearing before me but speak of a high level of tension between the parties, which has persisted for many years.
When the parties separated, C and M remained with the mother. They lived at Truro in South Australia. The father had no contact with the children for about a year. He was living in Western Australia. The father initially denied paternity in respect of J which, from the mother’s perspective, is another bone of contention between the parties. In 1998, the father discovered that he had throat cancer. He required treatment for this life-threatening condition. He returned to live in South Australia.
The mother was fearful upon his return from Western Australia. On
9 February 1998, she obtained a domestic violence order against him in the Tanunda Magistrates Court. It seems other proceedings were also commenced later in the year in the Family Court of Australia at Adelaide, regarding parenting arrangements for the children. On
31 March 1999 interim orders were made, with the parties’ consent, that allowed for the father to have contact to the children, from 10 am to 4 pm on alternate Saturdays on the condition that it was supervised by Mr F’s mother for a period of three months, and thereafter on alternate weekends from 5 pm Friday until 5 pm the following Sunday.
The matter apparently proceeded to hearing. The mother wished to be able to relocate the children from South Australia to Alice Springs. The father opposed this relocation. The application was heard by His Honour Justice Strickland and on 29 March 2000 orders were made by His Honour allowing the relocation. The father continues to be bitter about this decision to this day. He believes the relocation was motivated by the mother’s desire to curtail his contact with the children, rather than any other reason. The orders of March of 2000 allowed the father contact with the children in the school holidays.
The mother moved to Alice Springs in May of 2000. The father followed her to Alice Springs on 21 June 2001. He wanted to be able to be near the children. Strickland J’s orders did not cover the eventuality of both parties living in Alice Springs. The arrival of the father in Alice Springs seems to have led to some additional tension between the parties, which the lack of certainty in the orders did nothing to relieve.
In early 2001, the mother commenced a relationship with A M. In September of 2001, she and the children moved to Mr M’s home at 16 Mile on the Tanami Highway northwest of Alice Springs. The father was critical of the living conditions there. The father floated the possibility of the children coming to live with him. The mother was affronted at this and rejected the proposal. Clearly, the father’s proposal did nothing to ease tensions between the parties. The father had contact with the children in the September holidays of 2001 and on some alternate weekends in the later part of 2001.
The parties were in the process of formalising this arrangement through their legal advisers when calamity struck. On 19 November 2001, the mother accidentally fell while she was shopping and struck her head on a counter. She lost consciousness. An ambulance was called. She was admitted to hospital for 10 or 11 days. She suffered nerve damage in her brain and right-sided paralysis to her face. No definitive evidence has been provided in respect of the extent of her injuries. She, herself, describes tiredness, headaches and an inability to concentrate and remember things. However, as I say, no definitive medical evidence was provided.
Initially, Mr M cared for the children. The father was not told about the accident, but when he learned of it around 26 November 2001, he collected the children from their school. They remained with him until 28 January 2002. The precise sequence of events is unclear to me in respect of what happened over this period. The father asserts that it was agreed the children would remain with him until the mother recovered sufficiently to resume their care. It is the mother’s position that this agreement was reached on the strict proviso that she would see the children each day. The parties, sadly, have no facility to communicate with one another. There was only one period of contact on 28 November 2001 at the hospital. The father says that thereafter he did not know where the mother was and she did not contact him. The mother asserts this is patently false and the father ignored her for his own purposes. I do not believe the father when he asserts that he did not know where the mother was and so could not arrange any contact between her and the children. With even a minimum of effort he could have located the mother in Alice Springs and something could have been arranged. Ultimately, this state of affairs led to the mother commencing proceedings for the recovery of the children. However, before these proceedings were heard, she attended at Mr F’s home with police officers on 28 January 2002 and collected the children herself, apparently with the imprimatur of the police concerned.
There were disputes between the parties as to the overlap of the orders of Strickland J and the informal re-negotiation of arrangement between them concerning the care of the children, following the mother’s accident. Solicitors were involved. I have no doubt that this period intensified the already high level of tension between the parties. The mother felt, with some justification that the father had taken the children away from her when she was in an extreme circumstance. She remains bitter that she did not see the children over Christmas.
She also commenced contravention proceedings against the father. These were subsequently withdrawn when it became apparent, that in a strict legal sense, there was no cause of action, as pursuant to the March 2000 orders, the father was entitled to contact to the children in the latter half of the long summer holiday. The whole incident brought relations between the parties to a still lower ebb. After 28 January 2002, there was no contact between the father and the children.
I cannot help but reach the conclusion that to some extent, in the period following 28 January, 2002, the mother wished to revisit on the father the same feelings of anguish and hopelessness that had been visited upon her while she was incommoded by her illness and in fear of losing her life.
On 20 May 2002, the father commenced proceedings seeking alternate weekend and part school holidays contact to the children. The mother responded by proposing contact as agreed between the parties from time to time. By this time, the father was living in a caravan and attached cabin at the T B Caravan Park. In his affidavit in support of his application, he asserted the prior to 28 January 2002, he had had extensive periods of contact with the children.
It was the mother’s position that the children had been greatly disturbed by the father’s conduct over the Christmas period of 2001/2002 and had no desire to recommence contact with their father. She deposed that the children had told her that the father had been constantly denigratory of her to them during the period over Christmas; had made disparaging remarks about her and the children’s home and essentially had attempted to undermine their positive relationship with her, which had caused them great emotional distress. This was the beginning of her position that the children themselves should decide when and where they would have contact with their father.
On 1 July 2002, orders were made for three periods of overnight contact, with the children to be collected from and returned to the Family Contact Centre in Alice Springs. The children were delivered for contact as directed on the 5th, 12th and 19 July 2002.
Prior to this, on 3 July 2002, the mother and children had been to the contact centre for an intake interview. The Centre’s notes were subpoenaed and tendered in these proceedings. To some extent they made for instructive reading. On 3 July 2002, the intaker worker involved recorded in the notes that the mother reported that:
“her greatest fear was that he (the father) would bribe the children with lots of toys and gifts that she wouldn’t be able to afford, and they would then go to stay with him happily. … She said that she believed that he would apply again and again to the Family Court until he had custody of the children and she had only visiting rights.”
Each child was then spoken to in the induction process and advised by the worker or workers involved that they need not see their father if they did not really want to. The children were asked to think about the contact. It is recorded in the notes that each of the children indicated that they were frightened of the father and fearful of contact taking place.
On the 5th of July, when the children were delivered for contact, each indicated to the worker concerned that they did not want contact to occur. C, in particular, said that their mother would be really “sad” if they, meaning the children, did go and see the father. The mother had apparently told the children that her heart “had almost broken” when she could not see them for many months. J apparently indicated to one of the workers that he did want to see his father. However, before this could be explored further, C apparently told him that he (J) did not really want to see his father. As a result of the difficulties that occurred on the 5th of July, no contact took place. The father was bitter that he was not even introduced to the children at the Contact Centre and no attempt involving him was made to broach the difficulties.
On the 12th of July, once again, no contact occurred as the children indicated that they would have contact with their father when they were each older, but not then. C was apparently again the spokesperson for the children in this regard.
On the 19th of July, a different worker was involved at the Centre and contact occurred, although initially the children indicated their opposition. On this occasion, the worker elected to allow the father to be introduced into the same room where the children were playing. He greeted them. The children rebuffed him, but apparently after a while, C and M approached and began to talk with him. J also subsequently joined the group. His first reaction was to say that he would smash his father, but after a while he is reported to have “cuddled into his father”.
When the mother arrived to collect the children, she was told that the father was seeing the children. The notes record the following:
“Meanwhile the other supervisor was with K and advised her that P was seeing the children. K became very upset at this comment and talked about how she loved the children and how it hurt her when she was in hospital and she did not see them. K was extremely distressed during this time.”
Accordingly, although the orders that were made in early July allowed for overnight contact, no such contact occurred and the father only had the briefest amount of contact with the children in extremely strained circumstances. The history of the matter to this stage confirms my impression that in spite of her protestations to the contrary and the fact that she ostensibly adheres to court orders once made, the mother is vehemently opposed to the father having any contact with the children, a fact about which the children are well aware. The mother is fearful that the father will either scheme or bribe the children in some way so that they will ultimately want to live with him. Accordingly she fears even the most inconsequential interactions between the children and their father. It is of great concern to me that the children express a wish to defer contact until they are older. It also concerns me that the children have at least apparently been given the authority, with the cooperation of the contact centre workers, to determine when contact will occur. They have become the fulcrum in respect of whether contact occurs or not, caught between the competing forces of their parents.
However, I can also understand why, given the events of November of 2001, the mother would harbour such resistance to contact. Whether the mother’s opposition to contact is different in quality before and after November of 2001 and so has some organic basis, is unclear to me. Certainly, my impression of the mother during the hearing of August 12th and 13th is that her dislike of the father is extreme.
At any rate, after the 19th of July 2002, it became clear to all concerned that another tack should be tried in respect of contact, as overnight contact was clearly not a viable option. On 29 July 2002, orders were made for contact periods of three hours each Saturday from 11.00 am to 2.00 pm, with the children being delivered and returned to the Contact Centre. The father was able to take the children away with him from the Contact Centre. On the 1st of August, the 10th of August, the 17th of August and the 24th of August, the visits went reasonably smoothly, although it was noted that at least on one occasions C indicated her concern that she would be told off by her mother if she went on contact visits. Why this is so is unclear but it is the father’s position that this is because C was fearful of reporting a successful contact visit to her mother and the recriminations that might follow. I consider that there is some basis for the father’s belief.
The notes of the 31st of August 2002 indicate that J was initially unwilling to go but all three children returned from contact happily. J expressed the opinion to one of the workers: “ our dad hates our mum”.
On 2 September 2002 it was ordered that a family assessment be prepared by Mr Tyrell, a psychologist. Mr Tyrell was requested to observe the children with each of their parents with a view to seeing if contact could be extended. The assessment was arranged by Mr McBride, who had been appointed to represent the children on 1 July 2002. Proceedings were adjourned to 7 October 2002 to allow the assessment to take place.
On 5 October contact occurred. Once again the children were apparently unwilling to go on contact. C was particularly upset and said she would go and live with her father when she was 16 when she would be allowed to. Up to this stage, the father had been collecting the children and taking them away from the Contact Centre. As the children were unwilling to go, the centre workers offered an opportunity for the children to stay at the Contact Centre with their father. They played games together and from the observations of the worker concerned, the visit went well. However, when the mother returned, J ran up to her and said: “I didn’t play games with dad or talk to dad but the girls did.”
The worker noted that the mother did not greet the girls or show them any affection when she collected them, after she heard this comment from J.
Mr Tyrell’s report was released on 7 October 2002. In his report, Mr Tyrell described the mother as being anxious and depressed and that she demonstrated considerable anger directed towards Mr F. He thought both parties had been misguided in their past parenting efforts. He also noted that both had suffered serious ill health in the past few years. The father expressed concern at the mother’s living conditions and her choice of male partners. The father was also apparently concerned at safety and quality of life issues while the children were living with their mother. In Mr Tyrell’s view, this had led him “to tenaciously make contact with the children” and in Mr Tyrell’s opinion Ms M was “clearly resentful” of this. Mr Tyrell summed up his impressions as follows:
“Both parents have suffered life threatening health trauma in recent years and that, combined with their somewhat uncompromising temperaments and behaviour around such times, has led to gross mutual mistrust. For example, Ms M completely refused to risk being in the presence of or to speak with Mr F at all during any of the active assessment arrangements. This unbending behaviour, apparently reflected in a more passive way in him, has prevented a reduction of anger on her part and the opportunity on his part to win more trust from her.”[1]
[1] See Family Assessment page 5
M stated her view to Mr Tyrell that she did not want to see her father any more. J expressed to Mr Tyrell considerable anger directed towards his father. This might have related to the incidents, which had occurred over Christmas the previous year but, in Mr Tyrell’s phraseology,
“It is unlikely that a five year old, then four, would be able to maintain such recent rage about such matters without those matters being refreshed in his mind often.”[2]
[2] See Family Assessment page 7
C also indicated to Mr Tyrell that she did not want to attend contact because it was “boring and the father “mentally hurt” her and the other children. Mr F, during the assessment process apparently pressed C to tell Mr Tyrell what her wishes were in respect of contact. Mr Tyrell recorded this incident as follows:
“Notably when Mr F was present and the cards and other play had stopped, he told C quietly and apparently with great concern in front of me, ‘You’ve got to tell the man how it is. Now is the time’.”[3]
[3] See Family Assessment page 6
All in all Mr Tyrell provided the following opinion:
“The above assessment provides no evidence that Mr F in any way abuses or behaves in a manner that would place his children at risk when in his presence. Mr F often alluded to one of his main motivations in maintaining contact with his children to be to assure their wellbeing in various ways.
There is some evidence that the older children feel some sense of divided loyalty over the matter of contact with their father. While there is little doubt that they have had some beliefs that justify that and they are feeling angry with him about some matters that occurred last year, they also revealed some fear and anxiety over their mother's reaction to wanting to see their father. There is also little doubt that both parents feel emotional pain over various matters and that they have both suffered considerable health trauma in recent years.
At this stage, Ms M is showing more emotional vulnerability than Mr F even though the latter stage faces what appears to be almost callous distancing and rejection from his children at times. Some of Ms M's anger and depressed mode may be complicated by the residual impact of her brain impairment of late last year, which can predispose depression even without family stressors.
The assessment points to there being several agendas, some of which are not yet fully evidenced around the express needs of the children to not maintain contact with their father. Ceasing child contact with Mr F appears to be a drastic measure given their record of involvement in parenting over 10 years, the lack of any abusive streak and the evident love he exhibits when with them and the fact he is capable of engaging with at least his daughters effectively.
There seems to be no real longer term gains for these children to cease contact. Among other considerations it could possibly lead to a major health threat in his condition, which if it did, could lead to later complicated grief in his older children.
Mr F could be counselled in fathering skills and tactics in any one of several local agencies. This would not require great investment in either time or money given his motivation and insights. He may see it as necessary but it would help the situation overall.
There is no doubt that Ms M would benefit from counselling also around her anger, depressed mood and anxiety about many of the above issues and around some aspects of her recent brain injury and her rehabilitation needs if she so wished. Her psychological wellbeing is a key factor in this matter – at least as much as is that of Mr F.
Most importantly, the children would benefit from some brief therapy separately. This could be geared towards their learning to manage their loyalty issues and their anger and to put both parents into sound perspective. They could access such services as above and attend the Holyoake group programs for children as well. C could benefit from talk therapy. M may respond to art therapy to begin with and J to play therapy - all aimed at helping them deal with anger and divided loyalty.
It would seem wise to recommence access as it was before last month, i.e. three hours on the weekend but in a more strategic and stepped way, perhaps, to recommence only with C for say three contacts, then with both girls, then with J after six contacts.”[4]
[4] See Family Assessment pages 8 and 9
The salient factors that appear from the assessment appear to be as follows. Firstly Mr Tyrell believed that the parties, but particularly the mother, had hidden agendas in respect of the issue of contact. Secondly, Mr Tyrell believed that the mother was emotionally vulnerable to the issue of contact and this might be as a result of the brain injury that she had earlier suffered. Finally and most importantly the children were exhibiting a sense of divided loyalty in respect of the issue of contact with their father and there was at least some evidence to indicate that they felt responsible for the fear and anxiety that their mother so patently exhibited, when they had contact with their father.
As a result of the release of Mr Tyrell's report on 7 October 2002, orders were made, with the consent of the parties, allowing for a gradual build up of contact, which ultimately came to include J. Sadly, the contact did always proceed smoothly. On 12 October 2002, contact occurred but only after the girls had originally refused on the pretext that they had arranged to go to the cinema with their mother. On 17 October 2002, no contact occurred because the mother failed to deliver the children because they had apparently run off when she was about to drive them to the Contact Centre. The mother left a message to this effect on the Contact Centre answering machine. On 26 October 2002, once again no contact occurred as the girls apparently refused to go, although they were delivered for contact at the Contact Centre, as required. Thereafter, the father voluntarily suspended contact, because he did not want to cause the children undue stress. It resumed again on 16 November but once again to no avail, the children being apparently too distressed to go on contact at that time.
As a result of a complaint from another user of the Centre, who became concerned at the distress the children were exhibiting at the prospect of contact with the father, the Contact Centre withdrew its services from Mr F and Ms M. The workers had apparently reached the end of their tethers.
In order to break the impasse the solicitor for the mother proposed weekend contact on 13th of December 2002 and 6th of January 2003. Once again contact did not occur on the 13th of December as the children were unwilling to go. On 16 January 2003 orders were made by consent allowing for alternate weekend contact from after school on Friday until the commencement of school the following Monday. The children were to be collected at and returned to their school as the Contact Centre had washed its hands of the matter. The rationale being that the school would provide a buffer zone before and after contact and this might make it easier to facilitate. A formal order was also made on a final basis that the children reside with their mother. The father consented to the residence order.
The first contact period was due to commence on the 31st of January. It did not occur. The children refused to go. They had to be collected from school by their mother, on the principal's request.
On 14 February 2003, contact occurred at last. Later something unusual occurred which, to my mind, the mother has never satisfactorily explained. Up to this point, it was clearly her position that the children had no wish to have contact with their father at all and it was only because of the callous disregard that he had for the children's wellbeing and the implacable authority of the Court order that it was occurring in the face of the obvious trauma of the children. It remained her position that the children should decide when and if they wanted to have contact.
Nevertheless, on 17 February 2003, she arranged for Mr M to deliver the children to Mr F on the side of the Tanami Highway, 20 kilometres from Alice Springs. The mother's rationale for this was that she felt under enormous pressure about the contact issue as a whole and she decided to deliver the children to the father so that they could, in her terminology: “make up their own minds about him once and for all.”
The implication seems to have been that this would precipitate some final crisis so far as the issue of contact was concerned. It does not fit easily with her previous attitude to contact. Certainly, my impression is that she has not previously gone out of her way to facilitate contact, notwithstanding her protestations to the contrary. In such circumstances, it seems extraordinary that she would simply deliver the children to Mr F. As did Mr Tyrell, I suspect other agendas.
The father's position is that he was not forewarned that the children were to be delivered to him. They were left beside the highway with their bags packed and their dog. It is his position that Mr M delivered the children to him and his understanding, from Mr M, was that the children were to live with him for a year. This to seems extraordinary.
In her affidavit material, the mother deposed as follows:
“I decided to give the children an opportunity to make up their own minds about where they wanted to live by letting them have more time with the father than just the one weekend every fortnight.
I then said to the children “You’ll be staying in Alice Springs with your father. Maybe you should work your father out for yourselves.”
I told them that they should stay with him for a week or a fortnight. My then de facto partner A M (‘A’) then said to the children in my presence “Maybe you should stay with him for a year.” I had never agreed to this with A and did not agree to it then either. However, I was too upset to say anything at the time and I did not want to confuse the children any more by having a disagreement with A in front of them about this.
A then rang up the respondent father and told him to come and pick the children up at the corner of the Stuart Highway and the Tanami Highway. This was a convenient place, because we were living at Sixteen Mile, northwest of Alice Springs, on the Tanami Highway. The pick-up point was 20 kilometres from Alice Springs.”[5]
[5] See mother’s affidavit of evidence filed 30 May 2003 at paragraph 6.5 to 6.8
It is the father's position that Mr M told him that the children were to be with him for a year. Mr M himself did not give any evidence in these proceedings. The parties each acknowledge that they have not communicated directly since before November 2001. All communications between them have occurred through the tortuous medium of their legal advisers or the other contact centre workers or other willing intermediary. In such circumstances any involved change in arrangements for contact or residence was fraught with difficulties. It seems unusual to say the least that the father would accept from a comparative stranger that the mother proposed that the children should live with him for up to a year, especially when her vehement opposition to the children having anything whatsoever to do with him is considered.
The mother does not appear to have tried to contact the father any further after 17 February 2003 to clarify the situation. Nor he, her. The mother did telephone the girl’s school on 27 February 2003 and attempted to arrange to talk or visit them there but she was advised that as Mr F had enrolled them at the school, this was not permissible.
In March 2003, the father relocated the children to Berri in South Australia. He did this without prior reference to the mother. Before he left, he got his then solicitor to write a self-serving letter to the mother's solicitors. His solicitor then ceased to act on his behalf. This was largely academic in any event for on 3 March 2003 the mother's solicitor had also ceased to act for her, a notice to this effect being filed on that date.
The reasons the father gave for relocating were that he and the children had extended family and friends in South Australia and living expenses, particularly housing, were cheaper in South Australia than in Alice Springs. I also suspect that he wanted to pay the mother in the same coin as he perceived he had been paid when the mother had, almost three years before, moved the children to Alice Springs in the face of his objection. However, the great difference between the two parties’ behaviour is that the mother had the Court’s imprimatur to move the children. The father did not. He took things into his own hands. In my view, he was at best naive to accept what Mr M apparently told him. At worst, he decided to take advantage of the mother and wreak his vengeance on her, without any thought for the children and their relationship with their mother. Given the history of the matter up to that date, he must have known the mother would not agree to the children living permanently away from her at a location where they could not have easy contact with her.
On 26 March 2003, the mother re-engaged her solicitor and proceedings were filed a few days later seeking the return of the children to her care in Alice Springs. The proceedings could not be served, as although the father had told the children's former school that he was going to the Riverland, he did not leave specific details of his address there. No arrangements were made by him for the children to have contact with their mother. It was as if he attempted to disappear into a black hole with the children.
The father was eventually served on 25 May 2003. By this time the children had been enrolled in school in Berri and the father had obtained a three-bedroom house for himself and the children. The mother's suspicions and hatred for the father reached a new nadir.
On 2 June 2003, I ordered Mr F to return the children to the mother's care and made additional orders that allowed for weekend and midyear school holiday contact. However, there has been no contact between the father and the children since they were returned to Alice Springs. The father was due to have contact on 7 July 2003.
On this date, arrangements were made for him to collect the children at the office of the mother's solicitors. Ms Vismans, the administrative officer of the Legal Aid Commission, deposed that Mr F arrived at the Legal Aid Office earlier than expected and informed her that he was going to give up on trying to have contact with the children and working out arrangements with the mother about them. He said that the matter had been affecting his health and was very stressful for him and as it had been going on for seven years, he had reached a point where he could not take any more. He said he was going to leave town and let the mother keep the children. The father later confirmed the truth of this conversation with Ms Vismans.
The mother's position in respect of matters that have occurred since the children were returned to her is that she and C were interviewed by child protective workers and Northern Territory police officers on 24 June 2003, in respect of a notification that Mr F had made to the South Australian authorities that C had been sexually abused by Mr M, whilst in the care of the mother. She also deposed that the children have once again said they do not want to see Mr F until they are old enough to make up their own minds about him. She also deposed that during the time the children were in South Australia, they were unable to telephone or write to their mother because the father would not allow it. The mother's position is that the children should only speak to Mr F or write to him, if they expressly want to. At the present time, the mother is attending counselling with Ms Kerr and finds this counselling helpful to deal with anger, depressed mood, anxiety and rehabilitation from her own injury.
The Family Report
This is the background to the preparation of the family report. Although the father indicated that he would not attend the necessary appointments needed for the preparation of the report, he did in fact attend on Mr Law and had input into for the preparation of the report. Neither party arranged for Mr Law to attend court to be cross-examined about the contents of his report. Mr Law is a psychologist and Family Court counsellor. He has been qualified as a psychologist and social worker since 1985. He has been a Court counsellor since 2000. Mr Law identified the issues in dispute as follows:
“The children currently reside with Ms M. She wishes for this to continue and stated that she has “no view” on the children's contact with Mr F other than that the children should be allowed to decide whether they have contact or not. Mr F wishes to have residence of the children and would return to Berri with them if this occurs. Mr F said that he would respect the stated wishes of the children. If the children continue to reside with Ms M then he believes alternate weekend contact to be appropriate.”[6]
[6] See Family Report at paragraph 6
Mr Law was disturbed at aspects of both parties’ interaction with the children that he observed. The father challenged the children to express to Mr Law their wish to live with him and when they did not respond, replied rhetorically in their presence that they had been brainwashed and he would walk away from them. This was reported by Mr Law as follows:
“When Mr F appeared to become antagonistic in his challenges and when the children appeared to be distressed, the observed interaction was terminated prematurely. Whilst being taken from the room, Mr F continued to say to the children, ‘You know I'm going to walk away, don't you’?”[7]
[7] See Family Report at paragraph 16
Mr Law was critical of the father for quizzing the children in this way about where they wanted to live and then threatening to abandon them if they did not respond in the way he wished. In Mr Law’s view, this was tantamount to emotional abuse of the children. In defence of the father he, in his evidence, indicated that he was upset by the process of the observed interaction between him and the children and was not fully prepared for it.
The mother was tearful and crying throughout the assessment process. Mr Law described her as follows:
“She appeared to find it difficult to sustain a focus on the questions or topic at hand and her explanation quickly led to a tearful expression of distress and statements in relation to her prior career in nursing and an assertion that she is ‘not stupid’. It is difficult to know within the limitation of this assessment the degree to which Ms M's head injury has affected her cognitive function and emotional ability but she did present as severely compromised and distressed.”[8]
[8] See Family report at paragraph 11
Ms M did not involve herself very much with the children and left them to their own devices during the assessment. M and J stated to Mr Law their wish to have no contact with their father at all. C was more ambivalent. She stated that she wished to reside with her mother and have alternate weekend contact with her father. She also floated the possibility of living with each of them six months at a time.
In conclusion, Mr Law presented the following opinion:
“All three children appear to be doing their very best to survive whilst being raised by two parents who are emotionally needy and appear to hold others responsible for their distress. Mr F and Ms M do not appear to be able to fully realise the effects of this on their children and, in fact, appear to put their own emotional experience before that of their children. Mr F, in particular, appeared to be emotionally manipulative in attempting to make the children feel guilty for not wishing to reside with him. He appeared to grandstand to the counsellor during the observed interaction in an attempt to absolve himself from any responsibility for recent events. This can be viewed as emotional abuse.
The children's best interests would not be served at this time by being in a foster care placement, but living with either parent appears to have a detrimental effect on the emotional and psychological development of each child. It would appear that residing with Ms M would be less harmful to them at this stage, particularly since that is the expressed wish of each child. Mr F is not able to accommodate the children on overnight contact due to the size of his van but it would be in the children's best interests to sustain contact with him. Due to the reluctance of M and J to take any contact at all with their father at this time, it would be advisable for contact to be supervised. This allows for the possibility of the supervisor restraining Mr F from emotionally manipulating the children and assists him where appropriate in modifying his interaction. If after a period of time the contact supervisor’s report was satisfactory, M and J may develop a desire to continue contact with Mr F. This contact would be dependent on him continuing to reside in Alice Springs. It would not be in the children's best interests to travel to Adelaide or Berri to take contact at this stage.
It is therefore, recommended that the children reside with Ms M and have supervised contact with Mr F if he should continue to reside in Alice Springs or travel to Alice Springs on a regular, rather than a sporadic, basis. The need for supervised contact should be reviewed following the provision of a report by the contact supervisor.
It is common ground between the parties that, prior to the hearing on 12 August 2003, they took part in a round table discussion and tentatively reached agreement for a compromise along the lines suggested by Mr Law. However, overnight, the father resiled from the agreement. The reason that he did this was because he had earlier promised the children that he would, to use his terminology: “fight for them”.
Discussion
The father presented in his evidence as concerned and reasonable. However, he is constantly threatening to withdraw from the proceedings, but never does. He appeared genuinely perplexed at the strength of the mother's antagonism for him. However he himself has little, if any, regard for the mother as a person, let alone a parent. He accepted the children love their mother and in his phraseology that she has done a “reasonable job” in caring for them. He had little insight, if any, of the consequences for the children of his action in removing them from their mother in November of 2001, when she was ill and again in February of 2003. He has no suggestions as to how his relationship with the mother may be improved. He sees all the faults on her part and none on his own. He does not believe that supervised contact will work. In the past the children have found the Contact Centre boring.
It is unclear, in any event, given the dramas that have surrounded the children's presentation at the Contact Centre, whether the Centre itself would be willing to supervise the contact once again. Both parties seem to think that Mr Law's proposal too, is doomed to fail. The father indicated, once again, that if such an order was made along the lines proposed by Mr Law he would “walk away” from the children.
The mother gave her evidence in a flat manner. She conceded that she hated the father and has never forgiven him for his behaviour over Christmas of 2001, let alone the more recent incidents. She certainly presented as teary and emotionally vulnerable. Like Mr Tyrell and Mr Law, I wonder whether there was some organic basis for her current hostility towards the father, given its intensity. I doubt her evidence when she says that she tries not to say bad things about the father to the children. I also doubt her evidence when she says that she will be supportive of the father having contact with the children. Her hatred of the father is deep and unlikely to abate. For his part, the father has done nothing to cause the mother to change her opinion of him. I have little doubt that both parties have said derogatory things about the other to the children. Although the mother says she is accepting of contact, she has done all she can to surreptitiously derail it.
At the end of the first day of the hearing, a modest plan was apparently agreed upon between the parties to reintroduce the children to their father. However, on the mother's instructions, when she informed the children of it, it provoked protest and distress from them and as a result it was abandoned by her the next day. The children are almost certainly protective of their mother and know the anguish it causes her if they have any contact at all with their father, let alone contact that she perceives as being successful or enjoyable for them.
The children are also likely to be fearful of either hurting their mother or experiencing some other recrimination at her hands. At a deep level, the mother is fearful of losing the children to their father. It may well be at this stage, if the children continue to live with their mother, that the well, so far as the children’s contact with their father is concerned, is irremediably poisoned.
The mother indicated that the father loves the children and that they love him. I believed her, but she was unable to say anything about the father's involvement with the children of a positive nature.
The irony of this case is that in the 4 months the children lived with their father, there is no compelling evidence to indicate that the children came to any physical or indeed psychological harm. The principal at the B Primary School wrote:
“The children settled in well and attended regularly. They were well dressed at school and they made friends easily. They indicated they loved their school and the children.”
The principal noted that the father walked the children to and from school each day and was diligent in his dealings with them. This led the principal to the view that the three children were receiving “a very high degree of care and nurture” whilst with the father in Berri. A school counsellor also wrote to the father and children complimenting them for the time they had been associated with the Berri school and conveying thanks for the support the father had given to the children whilst at the school. This evidence indicates that the father and the children were a close knit unit whilst living together in Berri. However, once the children returned to their mother, the shutters so far as contact was concerned, came down again. Any future orders for contact will, at best, be tolerated by the mother and will inevitably be problematic and subject to derailment at any time.
In my view, the father's indication that he will abandon his attempts to have contact with the children must be taken seriously. As a result, the children may in future lose their relationship, already shaky, with their father. They may feel abandoned by him. This may have ramifications for their ability to form their own relationships in future and interfere with their own emotional development.
Mr Law believed the children would benefit from maintaining a relationship with their father, as does Mr Tyrell. Mr McBride can suggest no easy way through this maze of difficulties. In his submissions, he could not suggest any counselling for the children and was concerned about the emotional abuse that any further counselling may entail for them, given the fact that they have already been exposed to a significant amount of counselling and other psychological investigation.
Mr Tyrell, in his report, did suggest various forms of counselling, both for the children and the parties concerned that might be appropriate. Mr McBride may have been under some difficulty when he was making his submission in this regard, as he had not recently consulted with Mr Tyrell. It is also Mr McBride's position that some minimal and supervised basis for contact may not be appropriate in future, due to the parties’ and the children's resistance to it, even if a supervisor could be found. It was against this background that Mr Goldflam suggested an adjournment to see what time might do to ease matters and to see what inquiries might reveal in respect of the professional services available for the parties and children in Alice Springs.
The applicable law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
i)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
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (k) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve C, M and J’s best interests. The matters that are listed in section 68F(2) are as follows:
(a)Any wishes expressed by the child or children concerned and any factors such as the child or children’s maturity of level of understanding that is relevant in the circumstances;
(b)The nature of the relationship of the children concerned with the children’s parents and with other persons;
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or from any other person with whom he has been living;
(d)The practical difficulty and expense of the child having contact with people who are interested in the children concerned;
(e)The capacity of parents or any persons to provide for the needs of the children, including their emotional and intellectual needs;
(f)The children’s maturity, sex and background;
(g)The need to protect the children from any physical or psychological harm as a result of being exposed to abuse, ill-treatment, violence or other behaviour;
(h)The attitude to the child and the responsibilities of parenthood as displayed by the relevant parties;
(i)Any issue relating to family violence;
(j)Those orders that are least likely to lead to the institution of further proceedings;
(k)Any other fact or circumstance.
In my view the relevant considerations come under the following headings provided by section 68F(2):
a) The children’s wishes
The children have consistently expressed a wish to have no contact with their father. They have expressed this wish to a number of sources including, Mr McBride, Mr Tyrell, the father himself and more recently Mr Law, although C has moderated her position somewhat. I have little doubt that the children's ostensible wishes have been strongly influenced by their mother, both directly and indirectly, particularly by the obvious stress she exhibits when the children go on contact visits.
The children are not mature and I have no evidence as to their intellectual development. Accordingly I must be cautious about giving free reign to their wishes, especially when I believe that they are subject to both the conscious and unconscious influence of the mother.
I am also concerned at the number of times that they have already been interviewed about their wishes. J and M, in particular, are too young to have strong wishes and are likely to be easily influenced in the emotionally volatile situation that has prevailed between the parties for many years.
I also accept Mr Tyrell's assessment that the mother is likely to have re-agitated her concerns and obvious hatred for the father with the children over the last two years, but in particular since January of 2002.
The evidence of the Contact Centre indicates that in the latter part of 2002, the father was able to prevail upon the children to have contact with him and that after perseverance by him and the workers, contact went off with some degree of success.
Accordingly, I do not think the children's express wishes are a significant factor at this stage.
b) The children’s relationship with each of the parties
Obviously, I must consider the nature of the children's relationship with each of the parties. The mother is clearly the most significant person in the children's lives to date. She has provided the vast majority of their care and there can be little doubt that the children are strongly attached to her as witnessed by their protective attitude towards her. This factor alone militates against a change in residence at this stage.
The children also have a significant, but troubled, relationship with their father. As Mr Tyrell notes, he has been involved in their parenting for over 10 years and has made significant sacrifices to remain in contact with them, in spite of the considerable barriers placed in his way, not the least of which was the mother's relocation to Alice Springs.
As the Contact Centre notes indicate, he is capable of engaging with the children. I have no doubt that his experience of the last two years have caused him great heartache. That is not to say that he is without fault, but he has persisted when others might have given up. Mr F has also cared for the children for extended periods of time. Undoubtedly the children know him and Ms M concedes that they love him.
Mr Law is of the view that contact between the father and the children should be maintained. The question is how this can be done in the face of the mother's opposition, hostility towards the father and the patent distress she displays to the children when contact occurs. If every contact handover is a battlefield strewn with obstacles, it cannot be justified. At the end of the day the better outcome for the children may be that there should be no contact.
The other difficulty is Mr F's constant threat to withdraw if things become too difficult, a threat that has never fully materialised and which in itself, when expressed to the children, amounts to emotional abuse, particularly when coupled with demands for affection, that the children may not be able to reciprocate in the circumstances that prevail from time to time.
In the short term it may be desirable, given the children's current position, to give them a breathing space. But in the long term, it may not be in their best interests to sever their relationship with their father at this stage. However, much depends on Mr F himself. These issues are at the centre of this case.
c) The likely effect of any change in the children’s circumstances
The past two years has been difficult and unsettling for the children. Their mother suffered a life-threatening injury. They, themselves, have been the subject of protracted and bitter litigation, which has directly involved them. They have had two extended periods living with their father in a situation where they have been effectively removed from any influence of their mother. They have changed schools and addresses. All manner of contact regimes have been tried and discarded.
Another change of residence is not warranted at this stage and cannot be said to be in their best interests. Efforts should be made to minimise any future disruptions in the lives of the children at this stage.
In addition, Mr Law points to the potential detriment to the children of them being deprived of having an opportunity to have a relationship with their father in future. This is a most significant factor. There are grave risks of removing the influence of the father from the children’s lives at this stage.
d) The practical difficulties associated with contact
There are many practical difficulties associated with contact even if Mr F continues to live in Alice Springs. Contact if he goes to live in Berri is, as Mr Law observed, too problematic to consider at this stage. If the father does leave Alice Springs, it seems that this will be the end of the contact. In Alice Springs itself, there are the difficulties associated with contact handover; the antipathy of the children to the Contact Centre; the absence of any likely supervisor; above all, the absence of goodwill between the parties and the fact that it is inevitable they will not cooperate with one another in any way in respect of contact.
e) The capacity of each parent to meet the children’s needs, including emotional and intellectual needs
Neither party is an exemplary parent. Both are, as Mr Law described, emotionally needy and seek to gain more emotional support from the children than they can offer the children themselves. This is not entirely their own fault. They have each suffered devastating illness in recent years.
In the mother's case, I am concerned that the full extent of her difficulties may not have been fully diagnosed. The mother can see no good in the father whatsoever and seems determined to ensure that no relationship flourishes between the children and their father.
The father, by his actions in removing the children from the mother and then of preventing them having any contact with her, showed no regard for the children's emotional attachment to their mother. Again, he seems to have wanted to pay the mother back for the wrongs he perceives she has done to him.
However, the actions of the mother in delivering the children via Mr M to the father on the side of the Tanami Highway in February this year and the lack of precision on her part in regard to the arrangements for the children’s care other than her professed motivation that the children should have an opportunity to work the father out for themselves, can only be described as extraordinary.
It also seems certain that the father is as dismissive of the mother to the children as she is of him and in a similar vein that she is as incapable of fostering the children’s relationship with their father as he is with her.
Mr Law also noted his concern regarding the father's emotional manipulation of the children, something of which I expect the father is oblivious. I must endeavour to protect the children from this potential source of harm.
f) The children’s maturity, sex, background and other characteristics
The children do not have any particular characteristics that make this subsection relevant in this case.
g) The need to protect the children from physical or psychological harm
Clearly, in this case, there is a need to protect the children from psychological harm. None of the options that Mr Law proposed is without difficulty. However the children continuing to live with their mother and remaining in some form of contact with their father appears to be the least harmful option so far as the best interests of the children are concerned.
h) The attitude to the children and the responsibilities of parenthood
As I have already indicated, neither party has displayed an appropriate response to the responsibilities incumbent in being a parent, particularly in respect of the duty to ensure that the children concerned maintain a close and loving relationship with the other parent.
i) Family violence involving the children or a member of the children’s family
There are currently no family violence orders in place.
j) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finally, I must consider whether it would preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to the children. As I said at the outset, this is not a case which presents any easy solution. Even if a no contact order is made, I doubt that Mr F will walk away. He has threatened this in the past, but has never carried his threat through. I suspect that if an order is made preventing any further contact, it will be only a prelude to still more litigation. Any order for contact is fraught with difficulty. Given the current level of tensions between the parties, the prospect of future litigation between them is high. Indeed it seems desirable that any contact orders be reviewed in future.
Conclusions
I approach the conclusion of this judgment with a heavy heart. There seems no end to the hostility between the parties. For the reasons already provided, I am not of a view that there should be a change of residence of the children concerned. A shared care arrangement, as advocated by the father at one stage, is clearly unworkable. The question is then what contact orders should be made, if any? Both Mr Tyrell and Mr Law advocate contact.
On balance, bearing in mind the principles and objects of the Family Law Act as set out in s.60B, I have reached the view that it would be premature to cease contact at this stage. Obviously, it is a very significant thing to sever the relationship between father and child. This, after all, is one of the most central of all human relationships. In any event, as I have concluded, it will bring on more litigation, as I doubt that Mr F would let the matter drop. Whatever contact orders are made will pose great problems and potentially cause the children to display their divided loyalties and expose them to both the obvious and discrete agendas of the parties themselves. This has the capacity to do the children great emotional harm. This harm may be accelerated by Mr F's threat to walk away or abandon them.
So, whatever contact orders are made have to be sustainable in the short to medium term and of such a duration that Ms M can bear them. It will be a long process to get her to tolerate the level of contact Mr F is likely to want to have in the long run. Accordingly, on balance, I think brief periods of contact over a longish period have the least chance of being derailed.
The drawback is the resolve of Mr F. He feels trapped in Alice Springs, where he feels economically destitute and lacking emotional support. I can understand his position. At the core of this matter is his resentment that he was compelled to come and live in Alice Springs in the first place. However, the reality is the children live here and if he wishes to remain involved in their care, he too must remain here.
It is unlikely that a supervisor for contact can be readily found. I can understand why the Alice Springs Contact Centre became unwilling to remain involved in the matter. The difficulties in this case are great and complicated. In any event, Mr F is mistrustful of the need for supervision, however, a formal mechanism for handover is essential. The parties are incapable of managing handover on their own.
I have determined that there should be no contact for two months, to allow all concerned, but particularly the children, to absorb the consequences of the proceedings, which I concede have been traumatic for all concerned.
Obviously, each party should be restrained from denigrating the other in the presence of the children and discussing these reasons for judgment and the orders made with the children. This is essential to minimise the possibility of further emotional harm being done to the children. Both parties, but not at this stage the children, should attend counselling and a parenting course as suggesting by Mr McBride after he has made suitable inquiries in this regard. The aim of this counselling is to assist the parties to realise that it is important for the children to have a loving and close relationship with both of them. The mother requires professional assistance to help her to come to terms with the fact that the father will be having ongoing contact with the children.
After the break of two months, there should be contact on alternate Saturdays for a period of four hours between 10 am and 2 pm. Contact handover should be at the Contact Centre to ensure the parties do not come into direct contact with one another and to provide some reporting mechanism as to the ease or otherwise of contact.
There remains the risk that this will be unsatisfactory to Mr F. If he is unwilling to undertake this contact, he should be required to formally advise Mr McBride in writing of this. Thereafter, Mr McBride himself can inform the children of the orders and the contact arrangements or request that a Family Court counsellor or some other suitably qualified person do this on his behalf. The order will be reviewed in about a year's time.
My reason for doing this, is to allow a period of time to elapse in the hope that it will calm hostilities between the parties and reassure the children concerned. It may also allow the parties to create some fresh stocks of good will. I hope that it can be explained to the children that contact will be for a brief period of time. I hope this brief period of time will be a period that the mother can tolerate. It may be, with the assistance of professional counselling, that she will be able to tolerate it. This is a matter that Mr McBride can explore with suitable experts in Alice Springs, perhaps, with Ms Kerr.
I may be naive in reaching the conclusions that I have, but I hope that over the next 12 months the children will be able to maintain their relationship with their father. As I say much depends on the resolve of Mr F himself.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 29 August 2003
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