Details
- AGLC
- Fisher & Fisher [2022] FedCFamC1F 921
- Case
- [2022] FedCFamC1F 921
- Decision Date
-
CaseChat Overview and Summary
The case of Fisher & Fisher involves a dispute between the parents, both now aged 48, over the residence of their three children, X (aged 23), Y (aged 11), and Z (aged 10). The parents, who married in 2009, have been separated since early 2017, with the children living with their mother. The father seeks a change of residence, arguing that it is in the children's best interests to live with him, while the mother contends that the children should remain with her. The court must decide whether the children's best interests would be served by a change of residence, considering factors such as the children's wishes, the potential for a meaningful relationship with both parents, and the impact of parental conflict on the children.
The legal issues before the court include determining the weight to be given to the children's expressed wishes, the impact of parental conflict and the mother's influence on the children's beliefs, and whether a change of residence would be in the children's best interests. The court must also consider the potential benefits and risks associated with a change of residence, such as the children's ability to establish a relationship with their father and the potential for further conflict between the parents.
In its reasoning, the court found that while the children have consistently expressed a wish to remain with their mother, their wishes have been significantly influenced by the mother's strong views and the ongoing conflict between the parents. The court noted that the mother's belief that the children would not benefit from a relationship with their father is entrenched and rigid, and that the children's belief system has not been effectively challenged since the separation. The court also found that the father's actions may have contributed to the children's negative perceptions of him, and that the mother's focus on protecting the children has led to an exclusive attachment to her, potentially putting at risk any relationship with their father.
The court ultimately concluded that a change of residence would not be in the children's best interests. The court found that the children are likely to experience significant difficulties in adjusting to a new living environment with their father and his partner, and that the toxic dynamic between the parents may prevent the children from having a meaningful relationship with both parents. The court also noted the risks associated with a change of residence, such as the potential for further conflict and the children's expressed threats of running away or harming their father.
Final orders:
The court orders that the children remain in the care of their mother, with the father having specified contact arrangements. The court also orders that the parents engage in ongoing counselling to address the ongoing conflict and to work towards a more cooperative co-parenting relationship.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
To provide some context for the discussion that is required, a hopefully uncontroversial background is set out next.Contextual background Statements of fact which follow shall be construed as findings of fact. Both parents were born in 1974 and are now aged 48 years. In 1998, at the age of 24 years, the mother was involved in a serious car accident suffering various injuries. In 2003, the mother received a payout for damages, being over $900,000 (exclusive of costs). In 1999, the mother gave birth to her son Mr F who is now 23 years of age. The mother’s relationship with Mr F’s father ended in 2001. The parents were both living in New South Wales when they commenced a relationship in 2008 – with cohabitation occurring in 2009, followed by their marriage later that year. At least by early 2010, the father was acutely aware of the mother’s health condition, when she was taken to G Hospital after a medical episode. In 2010 X (now aged 12 years) was born, followed by Y in 2011 (now aged 11 years). Between 2012 to late 2014, the parties were initially living in City H and after the father was discharged from the Defence Force in 2013, at a time when the father was serving in City J. In late 2014, the father re-joined the Defence Force and was posted to Melbourne, and it seems the mother and the children continued to live in City B, even when the father was moved closer by the Defence Force to K Town towards the end of 2016. It is likely, the fact that the parents over these few years, were separated because of the father’s service with the Defence Force, caused tensions in the relationship, with the father travelling from K Town to City B most weekends to be with his family. By early 2017, the father had been diagnosed with a major depressive condition. The letter/report by Psychiatrist Dr L to the father’s general practitioner Dr M of 12 April 2017, after suggesting a “biological vulnerability” arising from a “significant family psychiatric history”, opined:[Mr Fisher] has suffered a chronic moderate major depression with anxiety, non-melancholic type, whereby he has felt overwhelmed by a culmination of psychological stressors and especially the challenge of balancing competing work and family commitments…[Mr Fisher] has suffered a similar mixed anxiety and depressive reaction several years earlier…there has been a partial limited treatment response and untoward side effects” [from prescribed medication] In mid-2017, the parties sold their home at Suburb N for $872,000 and rented for a time before purchasing the family home at P Street, Suburb Q for $850,000 a few months later. During the later months of 2017 I am satisfied tensions in the marital relationship were escalating even though the father had reached an arrangement with the Defence Force to work with more flexible hours, allowing him to be home more often. This was confirmed by the evidence from officer Mr R (see affidavit filed 18 September 2020). In late 2017, the mother obtained a mental health plan based on her statements to her doctor that she was finding the relationship with her husband difficult.
Evidence
Evidence Before The Court
In these Reasons I will deal with some discrete issues first.EVidence of Dr E Considering the positions adopted by the parties, the fact that they agreed to engage Dr E (as reflected in the consent Order made 6 October 2020) in RIFT was construed by me as a genuine attempt (with some expense involved) in finding some pathway forward in this difficult matter. Dr E was the subject of cross examination on her report dated 24 February 2021, filed on 4 March 2021. The parties were, in their cross examination, directed to various aspects of Dr E’s observations and opinions. The family report writer Mr U read the report before reaching his ultimate recommendation in support of a change of residence. It is appropriate to record that notwithstanding the accepted expertise of Dr E, her opinions are just part of the evidence the Court must consider in this matter. It is clear that Dr E had hoped the RIFT would result in a “breakthrough” but sadly it has not been the case. The further evidence of the children’s counsellor Ms D made it clear that the views expressed to her by the girls about their father in the four sessions in 2021, showed no real modification. Dr E was at pains to express on more than one occasion that the therapy she undertook in City B between 14 and 17 December 2020 was not parental “insight therapy” and considering her overall assessment that the current situation is a “parent/parent problem” – I suspect she may have hoped the RIFT might have led to a reflection by the parents of their contribution to the “problem”. As these Reasons will reflect, I have no confidence that has occurred. Little point is served in seeking to incorporate large portions of the 144 page report – as it is well known to the parents, however for context and to demonstrate the Court’s appreciation of the effect of this therapeutic intervention, the following matters arising from the report and Dr E’s cross examination deserve noting:(a)Dr E at pages 1 – 6 of her report identified the collateral material she had read before setting out the “goals of therapy”, being:(i)to assist X and Y with their anxiety particularly in managing their relationship with their father assertively and confidently, with the assessment of the appropriateness of promoting the relationship between the children and their father as a “peripheral focus”. She said she tried to write the report to “help everyone”; and(ii)exploring the potential of parent-child and parent co-parent relationships, including reconciliation between the mother and Mr F, Mr F and his grandparents and Mr F and his sisters in addition to promoting goodwill and cooperation between the parents. Dr E said one aim was to seek to achieve that “the parents can be in the presence of each other”.(b)In describing the mother “cheerfully” suggesting the father was traumatising the children by repeated attempts to see them, she meant to convey that her sense by the end was the mother was “not particularly co-operative and her motivation was not to support therapy being successful”. The mother disagreed with this opinion;(c)On 14 December 2020, Dr E allowed the mother and the girls an open discussion with the father of their complaints – and the father who listened to the complaints was somewhat “dismissive”. When the children arrived, they clung to their mother and carried stress balls “which they pulled at in an overtly dramatic way”. The mother spoke in front of the children about “[Mr F’s] alleged disloyalty to her. She said she would never forgive him”;(d)On 15 December 2020, it was agreed the children would spend some time with the father without their mother present with the intention that they would do some Christmas shopping and find a Christmas present for their mother. When the father arrived, the children were somewhat “standoffish with him” and held Dr E’s hand “in an overt show of anxiety”. Dr E opined their behaviour “was somewhat dramatic and not genuine fear”. The children shopped with the father for around two hours before they called the mother to collect them;(e)Dr E later on 15 December met with the father and Mr F together. Although Mr F complained about his mother’s behaviour to him during adolescence, at the same time he “showed a desire to reconcile with his mother and sisters, particularly his maternal grandparents to who he said he had been close”;(f)When Dr E gave feedback to the mother about the day, the mother reported the children alleged the father “had become angry at times during the shopping trip and had trouble controlling himself”. Dr E told the mother “this was not my observation of [Mr Fisher’s] behaviour”. This feedback occurred in the presence of the father causing Dr E to observe when seen together “[Ms Fisher] impressed as oversensitive to criticism and [Mr Fisher] as reactive”. On all the evidence during the trial, I assess this observation of the parents as reflected in their cross-examination as well;(g)It was agreed that the following day (16 December) the children would spend time with their father at a roller-skating rink. The observations on that day were notable in that:(i)the girls, although hot and thirsty, refused to drink the water their father had purchased until encouraged by Dr E;(ii)playing cards in the park thereafter the children relaxed and there were “many jokes and playful alliances”. When Y had to go to the toilet (accompanied by Dr E), X happily continued the card game with the father and could be heard laughing;(iii)although the mother was scheduled to arrive at 2.15pm, the mother arrived early (at 1.50pm) and when on returning from the toilet Dr E observed “[X] was standing beside her mother with a stricken look, and [Y] went to cling to the mother” who then left with the girls. The mother was asked in cross-examination why she turned up early (25 minutes), but I found her explanation about having collected her parents from the airport and it essentially being more convenient to collect the children early, not convincing. In my view, the mother should not, by her actions, have caused the session to finish early, as inevitably occurred; and(iv)After the children left, the father spoke to Dr E in “strong language”; was critical of the mother and her behaviour and expressed a view that there was no change in the children’s behaviour and “there was no solution”. Dr E says she criticised the father about his behaviour when, the day earlier, he had not been compliant with her advice when engaging with the mother – which the father sought to justify.(h)Later on 17 December Dr E went to the mother’s house to meet her parents, and was told by the mother that Y had “suffered a meltdown after seeing the father” although Dr E did not observe the child being “distressed”. The afternoon meeting between the mother and father was generally polite although the father “again reacted angrily at one time”, during the discussion of the mother’s list of complaints (set out at page 12 of the report), particularly when the mother alleged he had hit Y. He found it difficult to “contain himself”;(i)It being agreed that the next day (17 December) the children would attend a recreational park, the children were at the entrance at commencement and clung to their mother “in an overtly dramatic way”. Dr E observed the mother made no effort to encourage the children to greet their father; gave long hugs to their mother, with the children returning to their standoffish approach. It appeared the more positive observations of the day before had not returned immediately. Finally, after some interaction, the children “then sat with their father and happily ate his food and picnic lunch. They chatted and appeared relaxed”. The relaxed chatter continued when the father drove them to a shopping centre as planned. At the shopping centre the children appeared very comfortable although they were “unenthusiastic” about buying presents for their cousins with the father later expressing “resentment that the children do not have a close relationships with his family members”. When Dr E asked X and Y about the chance of resolving family conflicts, they were both adamant that their mother “would not reconcile with [Mr F], saying ‘mum will never forgive him’”;(j)When Mr F was assisted to make his apology to his grandparents, and did so, it might have been hoped that would be a “breakthrough” moment. The evidence at the trial before me some 10 months later suggest it was not;(k)Mr F went to speak to the girls at the park. They were initially standoffish with him. Dr E encouraged the mother to show approval for Mr F to allow the girls to talk with him. Although in cross examination the mother disputed that she was “reluctant” to do so, I accept the evidence of Dr E that she was. Importantly, the next observation by Dr E was not disputed, namely “[n]evertheless, a short time later, the girls and [Mr F] were sitting on a piece of play equipment talking naturally.”(l)Post therapy, the mother told Dr E that: (i)she has no desire to see Mr F “again”;(ii)the father had not changed and was still a “very cruel man”;(iii)she perceives herself as having to “protect” the girls; and(iv)the children might eventually accept a telephone call from their father or read an email but her opinion was that “she doubted the children would ever forgive their father”.(m)Post therapy, on the suggestions of Dr E, the father attempted to telephone the children “but they had refused to speak with him” and his emails to the children were unanswered. After giving the father a few days to decide whether he wished to have her produce a report – after explaining to the father the potential for a report to further harm his relationship with the children – the father said he wanted a report, expressing the views that he now knows “deep down they love their Dad and brother” and that he would “feel I have let them down if I didn’t head back to Court once the adjournment is over”.
Decision
Reasons for decision
Inevitably, advantages with one proposal create disadvantages with the other proposal, however a more succinct summation of the issues I have weighed up include:(a)If residence does not change, then:(i)there are no orders likely to be easily enforceable that will enable the children to spend time with the father. This will mean that until the children have true independence, and are prepared to exercise it, the father would have to wait for the girls (or one of them) to initiate contact. I do not discount this could occur, but could not predict if or when it might happen;(ii)the result of the lack of time will extend to the children’s sibling Mr F, unless the mother’s expressed reluctance to “forgive” Mr F changes and means she genuinely welcomes him back into her family;(iii)the father’s extended family will not spend time with the children to celebrate family events and gatherings;(iv)as a consequence of (i), (ii) and (iii) above, this may create a lifelong estrangement and be a loss to the children’s sense of identity and confidence, which extensive counselling and maturity may not overcome. They will not benefit from what the father wishes to offer them, including his love;(v)staying where they are living with their mother is in accordance with the consistently expressed wishes since early 2019;(vi)the children have experienced a level of stability living with their mother who has demonstrated a commitment to them gaining support from counsellors and, I find, dealing with all the usual issues that arise for children of this age, like negotiating school, peer relationships and normal female biological developments;(vii)the children, and particularly Y, will not need to navigate and adjust to a totally new living environment with the father (with whom they have not lived for nearly four years) but also his partner Ms DD and her children. Even if the father, as he says he would, limits the engagement of the girls with Ms DD and her children for a period, this is not a long term option if the father (as he is perfectly entitled to do) wishes to sustain, preserve and develop his relationship with Ms DD as his partner. I accept that this finding includes a degree of “speculation”; and(viii)the evidence is consistent from Ms D, Dr E and Mr U that a change of residence would be very difficult transition for the children, and I accept this evidence. It means if the transition does not occur, then the risks of exacerbating X’s anxiety and capacity to withdraw and Y’s reactions to anxiety like “meltdowns” and school refusal, are less likely to occur.(b)If residence does change, then:(i)the father hopes that he will be able to repair his estranged relationship with the children such that after a period where they have no contact with the mother, they can begin to more realistically establish a relationship with the mother that could lead to the children having a meaningful relationship with both parents;(ii)the father will be in a position to facilitate contact between the girls and his family, including his parents, siblings and his nieces and nephews (who I infer are the children’s cousins) and importantly Mr F, and in this way provide a context to their family history;(iii)with counselling and his day to day positive parenting (which he is desperate to demonstrate to the children), the father expects to educate and inform the children about his qualities and how much he cares about them. My assessment that the process the father will adopt, will be to challenge the perceptions the children express about their history with him; his past behaviour; and more likely that the mother’s stories about him are not true. Whether he can achieve this transformation for children of this age, and with the journey they have endured over the last few years before separation and since, is by no means certain. This could all “backfire” with emotionally destructive effect, despite the father’s best endeavours and those of counsellors;(iv)how the children will also cope with living in a new household with people they do not know and without support or contact from their mother is a significant uncertainty, which could result in reactions from the children that are very difficult to manage;(v)X has said she would “run away” from the father’s home if she had to live there. Whilst this might be a mere idle threat, it is quite possible the child could do so – even after the father takes the child to school. The school cannot enforce orders and the school is not a fortress. If X does not settle down as quickly as the father hopes, then repeated recovery order type applications (or at least further proceedings) are very likely;(vi)Y has threatened to “harm” the father and whilst I have no concerns about the father preventing physical harm to him, he cannot supervise the child’s every waking moment, and there is a distinct possibility that Y’s reactions to Ms DD’s children could be problematic. The father, in my assessment, minimises the likely behaviour management issues that X and Y could demonstrate. I accept he says he will be able to take two months off work to give the children his full attention. There is a risk that the reactions, at these children’s ages, might not have subside within that period. In this regard, no independent evidence of an expert psychologist who has a full understanding of the background in this case, to provide an opinion of how likely counselling will assist, was offered to the Court; and(vii)Although the father takes the view that none of his past behaviour could have created a sense of fear in the girls about him, that is what they say. Living with him with such a fear (even if irrational or not soundly based on facts) does not, for a child, remove such a fear in a way that the relatively short and facilitated time by Dr E and in her presence was evident at times during the RIFT.Conclusion
Ratio Decidendi
Legal Principle Established
On the basis of these findings, which I rely upon but do not repeat, further findings below are made.primary considerations I rely upon but do not repeat earlier findings made. I find it is in the best interests of the children and they would benefit from a meaningful relationship with both parents. The father submits he has no relationship with the girls at present, and that is correct. The mother, by her proposal, and consistent with her case and evidence, does not accept that the children will benefit from a relationship with their father. I disagree. One real challenge in this case is whether the toxic dynamic that now exists between the parents will permit the children to have a meaningful relationship with both parents or only one parent nurtured during their infancy. I am required to give greater weight to the need to protect the children “from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60CC(2)(b)). Relying on earlier findings I summarise and repeat, on my assessment of all the evidence (expert or otherwise), that: (a)during the relationship the children were exposed to parental conflict. I regard some of the mother’s allegations as exaggerated and inconsistent, but also find the father at times minimised his behaviour;(b)the father is focussed on blaming the mother entirely for what she says is the children’s feelings towards him now. I do not accept this perception. It is likely that some of the father’s actions have caused the children to be upset and distressed. The father does not consistently understand his reactive behaviour can cause anxiety to the children. Dr E made similar observations;(c)although it is not clear when the mother formed the view that the children would not benefit from a relationship with their father – certainly it occurred after the S Region trip and when the brief attempt at reconciliation in K Town on return, failed. However, the mother has formed that view and in my assessment it is entrenched, rigid and unshakeable. Her belief that her position is totally shaped by her desire to protect the children is consistent with the evidence from therapists Ms D and Mr C;(d)supported by these experts, the mother has developed no current insight about the influence she has had and continues to have upon the beliefs of the children. I do not say that their wishes are coached or without some foundation from their personal experiences, but they are also shaped by what the children believe the mother wants for them. The children’s belief system has not really been challenged since separation, before the RIFT undertaken by Dr E. Their reaction and behaviour in the absence of their mother was telling, but after the RIFT ended, they returned to their previous stance; and(e)I do not find that the mother is motivated by malice towards the father – but rather she is so fixed in her beliefs that these children know that acting contrary to the mother’s beliefs (and in effect seeking out time with their father) would not be acceptable to the mother. Where the children’s exclusive attachment is to their mother, potentially putting at risk that relationship is not an outcome these children could accept. It is likely they might see a similar result for them as has befallen their brother Mr F. It is a dilemma impossible for them to manage and has, on my assessment, contributed to them aligning entirely with the mother and also the maternal grandparents.