FITZPATRICK & ESSER
[2018] FCCA 3756
•12 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FITZPATRICK & ESSER | [2018] FCCA 3756 |
| Catchwords: FAMILY LAW – Parenting– no dispute over live with – dispute over whether child should spend any time with father – child strongly resistant – entrenched attitude – impact on child’s mental and psychological health – evidence of family consultant – whether mother should have sole parental responsibility – final orders in child’s best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61C, 61DA, 65DAA |
| Cases cited: Re F Litigants in Person Guidelines [2001] FamCA 348 Hall & Hall (1979) FLC 90-713 Reeves & Grinter [2017] FamCAFC 19 Goode & Goode (2006) FLC 93-286 MRR & GR (2010) 240 CLR 461 Sigley & Evor [2011] FamCAFC 22 Champness & Hanson (2009) FamCAFC 96 Slater & Light (2013) FamCAFC 4 R&R: Children’s Wishes (2000) FLC 93-000 Reiner & Reiner (2009) FamCA 926 Wang & Dennison (No.2) (2009) FamCA 1251 Heath & Hemming(No.2) (2011) FamCA 749 |
| Applicant: | MS FITZPATRICK |
| Respondent: | MR ESSER |
| File Number: | MLC 10183 of 2008 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 6 & 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 12 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr. MacFarlane |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | Self-Represented |
ORDERS
All previous parenting orders be discharged.
The applicant mother have sole parental responsibility for the child, [X] born 2006 (“the child”) and the applicant mother forthwith advise the respondent father of any decisions made by her in the exercise of sole parental responsibility save for the provision of any information that will provide information of where the child lives or attends school.
The child live with the applicant mother.
Any time spent and communication between the child and the respondent father be in accordance with the child’s wishes, save that the respondent father be at liberty to send letters, cards and gifts to the child, care of Property A, Victoria.
The respondent father provide the applicant mother with his telephone number and email address and inform her of any change of either.
In the event the child expresses a wish to the applicant mother to spend time or communicate with the respondent father then the applicant mother communicate this information to the respondent father and facilitate the child’s request.
The applicant mother provide to the respondent father a copy all future school reports in relation to the child after first ensuring the identity of the school has been removed from such report and upon request by the respondent father, the applicant mother provide a photograph of the child to him such request to occur not more frequently than once every six months.
All extant applications be otherwise dismissed.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Fitzpatrick & Esser is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10183 of 2008
| MS FITZPATRICK |
Applicant
And
| MR ESSER |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
These proceedings concern a dispute over parenting orders as that term is defined in the Family Law Act 1975 (Cth) for [X] born 2006 (“the child”).
The applicant in these proceedings is Ms Fitzpatrick (“the mother”). The respondent is Mr Esser (“the father”). The mother is 40 years of age, lives at an undisclosed address in suburban Melbourne and works as a [occupation omitted] for [employer]. The father is 41 years of age, lives in Suburb L and works shift work as a [occupation omitted].
The mother commenced these proceedings by application filed on 6 December 2016. The father filed a response on 21 February 2017. There were interim orders made on 28 February 2017, 3 March 2017 and 24 October 2017 when the proceedings were fixed for trial beginning 6 December 2018.
At the trial, the mother was represented by Mr McFarlane of Counsel and the father appeared in person. The trial proceeded over the course of 6 December 2018 and concluded on 7 December 2018 after the parties had an opportunity to make submissions in light of the evidence, as it had transpired. At the conclusion of those submissions the Court reserved its decision.
Background
The mother was born and raised in Australia. The father was born and raised in [Country A].
The parties met and commenced a relationship in late 2005 while they were both living and working in [Country B]. Shortly after the child was conceived, the mother returned to Australia and lived with her parents. When the child was born on 2006 the father remained overseas. The father did not arrive in Australia until 2008, by which time the child was over 18 months old, and when he did so, he lived briefly with the mother and her parents, within two weeks of his arrival the parties separated.
There is a dispute about whether the father had been involved with other women whilst he was in [Country B], both before and after the mother left. However, there is no dispute that in or around early 2008, the father became involved with another woman who is living in Melbourne, Ms C.
After the parties separated, the father went to Queensland but returned to Victoria several times. There were a number of attempts made for him to see the child before he returned again in September 2008 and commenced living with Ms C, who he later married in 2008. A child of that relationship was born in 2009.
By this time, the father had commenced proceedings under the Act for parenting orders for the child in these proceedings. After two family reports had been prepared, there were final orders made by consent on 7 June 2010.
Those orders provided for, amongst other things, a regime of initially supervised time with the father, increasing to day time each alternate Sunday.
The father brought further proceedings under the Act for parenting orders for the child in 2013. After a number of therapeutic and other interventions, including a further family report, there were final orders made by consent on 26 February 2014. Those orders provided for, inter alia, a spend-time arrangement with the father gradually building to alternate weekends, including overnight and after school on one day in the other week.
Almost immediately there were concerns, the mother alleged, with the child adjusting to the time with the father. This was, it appears, further complicated when the father travelled overseas for an extended period and time with the child was interrupted.
Upon the father returning to Australia, there were disputes between the parties about the father speaking to the child about travelling to [Country A] with him and the mother reporting the child’s behaviour deteriorating, including that she was engaging in self-harming behaviour.
The mother’s concerns about what she alleged was the child’s deteriorating behaviour and concerning presentation escalated. In June 2015 the time with the father stopped. The mother alleged the father slapped the child across the face following a dispute with her over a dress she was to wear to his wedding to another woman he had met after his relationship with Ms C ended. The father subsequently married this woman and there is also a child of that relationship now aged approximately two and a half years.
At the time of the abovementioned incident, the mother contacted the Department of Health and Human Services and sought an intervention order against the father. In the application for that order, the mother alleged that the father had admitted to slapping the child across the face and also alleged he regularly hit the child on her arms and legs and kicked her. There were a series of intervention orders made between July 2015 and September 2016 in the Victorian Magistrates Court.
Shortly after the mother had made the application for the intervention order, she also engaged a psychologist to assist the child given her concerns about the behaviour she alleged the child was exhibiting. The child was seen by the psychologist on eight occasions over the course of six months.
Over the course of 2016, the father alleged he attempted to contact the mother to see the child and even met her by chance once at a shopping centre when she was there with the maternal grandmother.
The intervention order proceedings, initiated by the mother, were finalised by way of undertaking in September 2016. Shortly thereafter, another dispute flared in the following month over concerns by the mother the father would attempt to collect the child from school and the child was becoming increasingly anxious about this.
The mother filed her initiating application on 6 December 2016 seeking that the final orders made in 2014 be discharged, sole parental responsibility, the child live with her, the Court determine the time the child spend with the father, and various restraints upon him.
The father filed his response seven days prior to the first return date in February 2017 seeking “shared equal parental responsibility” and the child spend time in accordance with paragraphs 4 and 5 of the final orders made in 2014.
On the first Court date there was an order made for a child-inclusive conference under section 11F of the Act. On 3 March 2017, an order was made for the child to spend supervised time with the father at a contact centre and, until a place became available, professionally supervised.
By the time the matter returned to Court in October 2017, the father had not provided the mother’s solicitors with his enrolment form for the contact centre and the mother had changed her residence as she had commenced a relationship with Mr D, who she plans to marry next year.
Once the matter was fixed for trial there were three attempts, via a professional supervisor, for the child to spend time with the father. A further attempt was made during the course of the preparation of the family report. All were unsuccessful.
The mother filed her material for trial in accordance with the directions for trial. The father filed one affidavit late albeit that the mother did not object to him relying on it at trial.
Material relied on
Counsel for the mother told the Court his client relied on:
a)a minute of orders marked as exhibit A1;
b)the affidavit of Ms Fitzpatrick, the maternal grandmother, marked as exhibit A2;
c)the affidavit of Mr D, the mother’s partner, marked as exhibit A3;
d)the affidavit of Ms E, the supervisor, marked as exhibit A4;
e)her affidavits filed 7 November 2018; 6 December 2016 and 1 March 2017, marked as exhibits A5, A6 and A7 respectively;
f)her outline of case marked exhibit A8.
The father told the Court he relied on his response filed 21 February 2017 and his affidavit filed 29 November 2018 and sought the orders particularised at paragraph 29 of that affidavit rather than those contained in his response.
Position of the parties at trial
After the Court was satisfied that the father had had the opportunity to get legal advice, understood the process that would be followed at trial and the relevant sections of Part VII of the Act, and consistent with the principles in Re F Litigants in Person Guidelines [2001] FamCA 348, the Court explained the manner in which the trial would proceed, the order of calling witnesses and the right to cross-examine witnesses.
The mother’s position
In her initiating application, filed 6 December 2016, the final orders sought by the mother were:
“1. That all previous Parenting Orders be discharged.
2. That the Applicant have sole parental responsibility for the child of the relationship, [X] born 2006.
3. That the said child spend time and communicate with the Respondent as determined by this Honourable Court.
4. That the father’s consent to issue a passport be dispensed with and the Australian Passport Office issue a passport in the name of the said child.
5. That the Respondent be restrained from coming within 10 kilometres of any address the Applicant resides at, Property A or any school the said child attends.
6. That the Respondent be restrained from communicating with the Applicant and/or the said child.”
In her outline case, filed 28 November 2018, the final orders sought by the mother were:
“1. That all previous Parenting Orders be discharged.
2. That the Applicant Mother have sole parenting responsibility for the child:-
[X] born 2006
and the Mother forthwith advise the Father of any decisions made by her in the exercise of sole parental responsibility save for the provision of any information that will provide information of where the child lives or attends school.
3. That the child live with the Applicant Mother.
4. That any time spent and communication between the child and Father be reserved and to occur in accordance with the child’s wishes.
5. That the Respondent Father be at liberty to send letters, cards and gifts to the child, care of Property A, Victoria .
6. That the Respondent Father provide the Applicant Mother with his telephone number and inform her of any change of same.
7. In the event the child expresses a wish to the Applicant Mother to spend time or communicate with the Respondent Father then the Applicant Mother communicate this information to the Respondent Father and facilitate the child’s request.
8. Upon request by the Respondent Father, the Applicant Mother provide a photograph of the child to him such request to occur not more frequently than once every six months.
9. That all extant applications be otherwise dismissed.
10. Pursuant to s.65DA(2) and s.62B, the particulars of these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
At the start of the trial Counsel for the mother tendered a minute of proposed orders sought by the mother, which was marked as exhibit A1. They were:
“1. That all previous parenting orders be discharged.
2. That the Applicant Mother have sole parenting responsibility for the child, [X] born 2006 and the mother forthwith advise the Father of any decisions made by her in the exercise of sole parental responsibility save for the provision of any information that will provide information of where the child lives or attends school.
3. That the child live with the Applicant Mother.
4. That any time spent and communication between the child and the Respondent Father be in accordance with the child’s wishes save that the Respondent Father be at liberty to send letters, cards and gifts to the child, care of Property A, Victoria.
5. That the Respondent Father provide the Applicant Mother with his telephone number and email address and inform her of any change of either.
6. In the event the child expresses a wish to the Applicant Mother to spend time or communicate with the Respondent Father then the Applicant Mother communicate this information to the respondent father and facilitate the child’s request.
7. The Applicant Mother provide to the Respondent father a copy all future school reports in relation to the child after first ensuring the identity of the school has been removed from such report and upon request by the Respondent Father, the Applicant Mother provide a photograph of the child to him such request to occur not more frequently than once every six months.
8. That save as greed in writing with the Applicant Mother, the Respondent Father be and is hereby restrained by injunction from attending any school the child attends.
9. That all extant applications be otherwise dismissed,
10. The usual s.65DA(2) and s.62B Particulars
The father’s position
In his response, filed 24 February 2017, the final orders sought by the father were:
“1. That the mother and father have shared equal parental responsibility for the child, [X] born 2006 (“the child”).
2. That the child live with the Mother.
3. That the child spend time with the Father in accordance with paragraphs 4 and 5 of the Court Orders dated 26 February 2014.
4. That the Mother’s Initiating Application filed 6 December 2016 be dismissed.”
However, as detailed earlier, at the start of the trial the father abjured reliance on those orders and instead, the father confirmed the orders that he sought were as contained in his most recent affidavit at paragraph 29, which were:
“…I seek equal shared parental responsibility.
[X] live with Ms Fitzpatrick.
Would like to see [X] and I hope after some supervised visits then eventually to no supervision.”
As will become clear presently, during the course of the evidence before the Court, the father indicated, notwithstanding that he sought those orders, he agreed with many of the orders sought by the mother.
The Report
For the purposes of the trial, on 24 October 2017 the Court made an order pursuant to section 62G(2) of the Act for the preparation of a family report.
The family report, prepared as a result of that order, was released to the parties on 3 August 2018 (“the Report”).
The Report was prepared following interviews with the parties and the child on 10 July 2018 and on the basis of the information contained at pages [2], [3] and [4] thereof.
The Report set out the “Background” at pages [4] to [20], identified the “Proposals of the Parties”, “Risk Factors” and “Issues in Dispute” at pages [21] to [22], before addressing the interactions with the “Adults” and “Children” and the “Observations” at pages [23] to [30].
Then, under the heading “Evaluation”, the Report provided:
“120. The writer notes the length of time that the parties have been in conflict and notes that this position is firmly entrenched. The conflict is simply that Ms Fitzpatrick does not seem to value anything in regard to Mr Esser and his capacity to have value in [X]’s life. It is highly suspected that this occurred as a result of Ms Fitzpatrick being emailed by an unknown woman and the seed of doubt being sown.
121. It was difficult to see that this dynamic will ever change and it is respectfully suggested that [X] has been impacted upon by Ms Fitzpatrick’s lack of trust, her late introduction to Mr Esser through no-one’s fault, her struggle to form an attachment as a young child, the complexity of the adult relationship from the time Mr Esser arrived in Australia and the enmeshed relationship with Ms Fitzpatrick that has been fostered.
122. It is difficult to suggest to the Court that [X] has formed her own views. Instead, it is respectfully suggested that she has struggled from the time of introduction to Mr Esser to form and maintain a bond or attachment to him because of the adult circumstances. It is clear that any time that she has had with Mr Esser has been hard won at Court. Sadly it appears that Mr Esser has value and could have been a significant adult figure in her life. It is clear that this is unlikely to occur.
123. The writer noted the surname without Esser attached, the enrolment in a new school without advising Mr Esser (the writer was the first to inform him of this), the completeness of her life without Mr Esser being involved and the reluctance of Ms Fitzpatrick who views Mr Esser as a risk. Unfortunately, it appeared that nothing to date has been effective in breaking the enmeshed mother-daughter relationship or turned Ms Fitzpatrick’s view around. As such it is unlikely that [X] will have any relationship with Mr Esser unless she seeks this out for herself once she has been able to emotionally separate from Ms Fitzpatrick enough to do so. The writer observed the reality of this as not being lost on Mr Esser who appeared tired of fighting and worried about the impact on his other family members. Ms Fitzpatrick remained staunch.”
Finally, under the heading “Recommendations”, the Report contained the following:
“124. That the parents retain equal shared parental responsibility.
125. That [X] live with Ms Fitzpatrick.
126. That time with Mr Esser be reserved.
127. That Mr Esser and extended family be permitted to write and send gifts and Ms Fitzpatrick undertake to ensure that these items are passed to [X].
128. That Mr Esser be provided with a photograph of [X] every six months. This may include a school photograph.
129. That a contact point should be kept current so that should [X] wish to make contact with Mr Esser she can do so.
130. Ms Fitzpatrick should be encouraged to facilitate contact between [X] and Mr Esser if [X] expresses a wish to do so.
131. One option might be for the past counsellor who worked with [X] to make contact with [X] every six months to seek [X]’s views about reconnecting with Mr Esser and then make contact with Mr Esser and provide feedback as to how [X] is progressing and whether she would like to invite him to a counselling session to commence reconnection.”
The Full Court, in Hall & Hall (1979) FLC 90-713, made certain observations about the general nature of the role of family reports and the evidence of family consultants, such as that, as was given in this case.
I also bear in mind what the Full Court decisions have had to say about the weight the Court can and should place on any recommendations, such as those made by the family consultant in this case.[1] Each of the parties in this matter had an opportunity to cross-examine the family consultant. It is for the Court to decide what is, in this case, in the child’s best interests. In doing so, it will be necessary to bear in mind the evidence of the family consultant, including giving appropriate weight to his evidence and his recommendations.
[1] Reeves & Grinter [2017] FamCAFC 19 at paragraphs [15] to [16] and authorities referred to.
Evidence at trial
The mother gave evidence, adopted her affidavits, referred to earlier[2], and was cross-examined by the father. In her most recent affidavit the mother deposed to the efforts she had gone to, to encourage the child’s relationship with the father.[3]
[2] see Exhibits A5, A6 and A7.
[3] see paragraphs [17]-[20], [22] and [26(vii)] of exhibit A5.
In her affidavit, filed 1 March 2017, the mother responded to the father’s initial affidavit and addressed the various intervention orders, which were attached to that affidavit.
In her most recent affidavit the mother deposed to, amongst other things, the attempts made to have supervised time between the child and the father, and the child’s views regarding the time spent.[4]
[4] see paragraphs [16] – [24] of the mother’s affidavit filed 7 November 2018
Each of the mother’s earlier affidavits traversed the history of the parties’ relationship and the dysfunctional interactions that quickly emerged after separation, and has been present ever since.
In the mother’s affidavit, filed in support of the initiating application, she deposed at some length to the “difficulties with respect to [the child’s] relationship with the father” before addressing the events that led to, and following the breakdown in spend-time in the middle of 2015.[5]
[5] See paragraphs [8] – [30] of the mother’s affidavit filed 6 December 2016
The mother also attached to that affidavit a copy of a “Confidential Psychological Report” on the child, dated January 2016. This report stated that the child continued to experience episodic anxiety at a subclinical level which was found to be “materially related” to the allegations she made against the father.[6]
[6] see Annexure B of the mother’s affidavit filed 6 December 2016
In answer to questions from the father, the mother referred to that evidence and rehearsed the things that she said she had done to encourage the child’s relationship with the father.
The father sought to elicit from the mother documentary proof supporting the claims she made in her affidavit about, amongst other things, how the child was fearful of him, why her school had to be changed, why it was a risk if he knew where the child went to school and what she had observed about the child’s deteriorating behaviour before time broke down with him in 2015.
Suffice it to say, the mother’s evidence in response simply served to underscore the depth of the concerns she had about the child spending even supervised time with the father before the child, herself, was ready to do so. Along with this, the mother’s evidence in response only elaborated on the reasons why she believed providing the father with her address or the name of the school would threaten the child’s emotional wellbeing and progress she had made in the last couple of years.
The maternal grandmother
The mother relied on the affidavit of the maternal grandmother, referred to earlier.[7] The father did not seek to cross-examine the maternal grandmother and her affidavit was taken into evidence.
[7] see Exhibit A2
The maternal grandmother deposed to her involvement with the parties when the father first came to Australia and her observations of inter alia the child over an extended period of time as she struggled to deal with the conflict between the parties.
The maternal grandmother deposed to how, in her view, the child had been “reluctant and hesitant” about spending time with the father and that the child’s attitude had “deteriorated” in 2014 and 2015. The maternal grandmother deposed to the child’s behavioural problems at that time and how since time with the father had stopped there had been a “remarkable change in her demeanour.”
The maternal grandmother deposed the child was now a “happy, confident girl”, “full of life”, “happy at school” and “doing well”.
The mother’s partner
The mother also relied on the affidavit of her partner, referred to earlier.[8] The father did not seek to cross-examine the mother’s partner and his affidavit was taken into evidence.
[8] See Exhibit A3
The mother’s partner deposed to the background to his relationship with the mother and that, since he and his family had been involved with the mother and the child, the latter had not spent time with the father.
Nonetheless, the mother’s partner deposed to his observations of how, over that time, he had seen the mother encourage the child to see the father but the child had been “very clear and determined” that she did not wish to engage with the father.
The mother’s partner also deposed to his involvement supporting the mother during the attempted supervised visits in 2017 and 2018 and how the mother “encouraged” the child to participate and he had never heard the mother speak in “negative terms” to the child about the father.
The supervisor
Finally, the mother relied on the affidavit of the supervisor, referred to earlier. [9]
[9] See Exhibit A4
The father did not require the supervisor for cross-examination and her affidavit was taken into evidence.
In her affidavit, the supervisor deposed to the truth of the observations in the reports made of each of the three occasions that supervised time at [Playcentre] had been attempted in 2017 and 2018.
The father
The father gave evidence and adopted his affidavit, referred to earlier.[10]
[10] see Exhibit R2
In his affidavit, in which the father responded paragraph-by-paragraph to the mother’s most recent affidavit, the father deposed he agreed to the mother keeping her address confidential, but maintained the mother had no reason to be fearful of him.[11]
[11] see paragraph [7] of Exhibit R2
It appeared that he took the same position in relation to the child’s school, in his affidavit, at least, but, in his evidence before the Court, said he should know where his child lived and where she went to school.[12]
[12] see paragraph [12] of Exhibit R2
In his affidavit, the father had deposed that the mother had never supported his relationship with the child. The father’s evidence was, amongst other things:
“As a matter of fact, [the mother] had interfered with almost all of my attempt to have a bond with [the child]. The thing had always been agree with [the mother], we are all good, disagree with [the mother], [the child] becomes a tool.”[13]
[13] see paragraph [28] of Exhibit R2
In his affidavit, the father set out what he said were the orders he sought as follows:
“I seek equal shared parental responsibility. [The child] live with [the mother]. Would like to see [the child] and I hope, after some supervised visits, then eventually to no supervision.”[14]
[14] see paragraph [29] of Exhibit R2
The father’s evidence was he acknowledged this position was different to the orders sought in his response filed in February 2017.
Counsel for the mother asked the father in cross-examination about the details and circumstances surrounding his involvement with his other children, as referred to in the Report.
The father’s evidence in response, at least in relation to Ms C’s child, whose paternity was, he had said, “complicated”, was difficult to follow.
The father was also asked about how he thought his proposal for time with the child, as referred to in his most recent affidavit, would work. The father’s evidence was he had “faith” it would but beyond this he did not provide any details.
The father was asked, given the many unsuccessful attempts to resurrect spend-time, since it broke down, and the failed supervised visits, how he thought the child would react to an order for supervised time. The father’s evidence in response was he would “respect her wish.” When pressed to try and imagine how the child would react, if there was an order for supervised time, the father’s evidence was if the child honestly did not want to see him he would “walk away.”
A consistent theme in the father’s evidence on this issue was, however, he did not accept the veracity of the statements made by those who had been involved with the child since 2015 and the attempts to resurrect spend-time and their observation and the beliefs the child genuinely did not want to see him. Time and time again, when taken to the history of unsuccessful spend-time-arrangements, the father either blamed the mother or his evidence in response demonstrated little insight into the child’s experience.
Whilst the father did acknowledge the child’s relationship with him had never been secure, given the difficult circumstances between 2008 and 2014, and when weekend time was introduced it had been interrupted due to his travel overseas, conflict with the mother, an incident where the child was, he said, “tapped” on the bottom (rather than slapped on the face as the mother and others reported the child had said) the father refused to accept the child’s experience may not have been a happy one and that her views (as referred to above) were the result of that.
Finally, the father was taken to the mother’s proposed orders by her Counsel during cross-examination and this exchange yielded responses from the father that, save for two issues, he did not oppose any of those orders. Those two issues were that the mother would keep confidential the details of the child’s home address and the school she attends.
The father appeared to concede that the mother should have sole parental responsibility and provide him with details about decisions on long-term issues for the child and updates on the child’s progress at school etc., but maintained he should know where she lived and went to school. When pressed to provide a reason for his insistence on the latter, the father’s only explanation was he believed he should be able to go the school.
As he had done throughout his evidence, the father said he didn’t care what the mother’s concerns were about this or any other matter and failed to acknowledge that, for the child at least, school was a safe space, indeed, the only safe space where she didn’t have to worry about being confronted by the father turning up unannounced.
The family consultant
The family consultant was called to give evidence and was cross-examined by the father. The family consultant confirmed the details in the Report and that he was aware of the parties’ proposals before the Court at trial to the extent that they were different from those at the time the Report was prepared.
The family consultant’s evidence was he could not see the child electing to spend time with the father until she was much older and he was not sure how to “bridge” the child back to the father. The family consultant said he did not support further attempts at supervised time as it had been tried repeatedly (and as recently as July this year) and the child would, as she did on that occasion, refuse and continue to refuse to spend time.
Sadly, the family consultant’s evidence was, in interviewing the child, he was unable to identify any “curiosity” or “interest” on the child’s part in seeing the father or having a relationship with him. The family consultant’s evidence was that the child’s attitude was “well entrenched” and the prospect of an order for supervised time would be “very difficult” and “anxiety provoking” for the child.
In relation to the dispute before the Court between the parties over the provision of the details of the child’s address and school, the family consultant’s evidence was, while he was not clear on the risk, he acknowledged the father may “elect” to approach the child including at school as he had a “yearning” to maintain a connection, but this would increase the child’s anxiety.
Submissions
At the close of the evidence each of the parties had an opportunity to make submissions on what parenting orders the Court should make in light of the evidence as it transpired at the trial.
Mother’s final submissions
Counsel for the mother contended some of the father’s evidence before the Court was questionable, inconsistent and, in part, unbelievable. In that regard Counsel pointed to the father’s various explanations in cross-examination for his trips to [Country A] in 2014.
Be that as it may, Counsel for the mother submitted that nonetheless the father’s evidence demonstrated he showed no insight into the impact of the history of the dispute between the parties on the child and that his relationship with her had only, and some time ago, been fragile at best.
Counsel for the mother submitted the father was “rigid” in his views and would not be persuaded by anything at odds with his own views.
In reference to the remaining matters in dispute between the parties, Counsel for the mother submitted his client’s proposal was consistent with the family consultant’s evidence and more likely to be in the child’s best interests.
Counsel for the mother, noting the fractured nature of the child’s relationship with the father, the history of spend time (such as it was), the dispute around the reasons for its breakdown, that there had been no time for over three years and that the father continues to blame the mother for this, asked rhetorically, “how could it be in the child’s best interests on the evidence to compel further supervised time?”
Acknowledging that his client must share some of the blame for the breakdown in the child’s relationship with the father, Counsel for the mother submitted his client’s proposal was more likely to promote the child’s best interests by privileging the need to protect her emotional and psychological welfare and that the father’s proposal, such as it was, did not deal with the difficulty about making final orders for supervised time without a review mechanism.
In relation to the issue regarding the child’s address and the name of the school, Counsel for the mother submitted the Court couldn’t be satisfied the father wouldn’t attend uninvited. It was submitted the father presented as someone who would do what he wanted, irrespective of the mother’s views and the child’s wishes, and that the father didn’t respect boundaries.
Given this, and that the father would otherwise be getting all the necessary information on the child’s progress, it was submitted it was not in the child’s best interests for those additional details to be provided.
Father’s final submissions
The father told the Court he didn’t want to respond to all of the points made on behalf of the mother.
However, the father told the Court since he had come to Australia it had been a “battle” with the mother and while he understood the child had told a psychologist, supervisors and the family consultant she didn’t want to see him, he didn’t believe this was genuine.
The father told the Court he didn’t trust the mother, didn’t communicate with her and blamed her for the delay in commencing supervised time in 2017.
The father asked the Court if orders were made, as sought by the mother, how would he get back his relationship with the child in the future.
Whilst telling the Court he understood this is where things were, he said he just wanted to be involved and believed he should know where his child lived and went to school.
Turning then to the approach to the parenting orders that should be made by the Court in the context of this dispute.
Approach to parenting orders
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
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(c) ensuring that Error! Hyperlink reference not valid. receive adequate and proper Error! Hyperlink reference not valid. to help them achieve their full potential; and
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(d) Error! Hyperlink reference not valid. should agree about the future Error! Hyperlink reference not valid. of their Error! Hyperlink reference not valid.; and
(e)….”
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act sets out the specific criteria which must be considered in determining what is in a child’s best interest.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child obtains the age of 18 years, unless the Court makes an order which alters that responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides, in effect, that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child or member of the parent’s family or family violence. Section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the child’s best interests and reasonably practicable. This is provided by section 65DAA(1) of the Act.
If equal time is not in the best interests of the child or reasonably practicable, section 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable. Section 65DAA(3) sets out the parameters in considering the term “substantial and significant time”.
Section 65DAA(5) sets out the factors which a Court must consider when determining the question of reasonable practicability or reasonable practicality.
These principles have been examined in a decision of the Full Court of the Family Court, published as Goode & Goode (2006) FLC 93-286 and a decision of the High Court published as MRR & GR (2010) 240 CLR 461.
I have already set out the parties’ competing proposals which identify the issues in dispute in this matter. Given this, it is now necessary to turn to a consideration of the relevant section 60CC factors, given the evidence in these proceedings referred to earlier, in the context of the principles of the Act outlined above. In doing so, it’s important to note that I have, of course, considered all of the evidence and the parties’ submissions, all of which have been taken into account.
Consideration of factors
The benefit to the child of having a meaningful relationship with both parents
While it is well accepted by the case law that meaningful does not mean “optimal”, the provision is not simply focused upon the question of whether or not there should be a meaningful relationship, but rather the benefit that the child may derive from it. The work of the provision is not ended by answering the question, “will there be a meaningful relationship under this particular arrangement?” Rather, the provision requires an assessment of the relationship and a consideration in the context of how that relationship is to be exercised of the benefits that will accrue to the child.[15]
[15] Sigley & Evor [2011] FamCAFC 22
The extreme distress and opposition displayed by the child in this case to spending time with the father calls into question how the opportunity for the child to have the chance to have a meaningful relationship with the father in the future is to be supported and, ultimately, what the benefit to the child is to have a relationship with the father where the prospect of such engenders such anxiety and distress.
The family consultant’s evidence, which I accept, addressed the positives and negatives of the child’s relationship with the mother and the evidence over the last 18 months the child has stabilised and improved considerably.
There is no basis for me to confidently say involving the father again on the terms that he seeks, will do anything other than destroy the child’s current stability.
The father’s claim is, effectively, that the mother has pursued a campaign against him and what the child is reported to have told others is not genuine. Whilst the family consultant’s evidence did have some concerns about the mother, I do not accept the father’s claim.
Any benefit to the child of the chance to have a meaningful relationship with the father into the future must be weighed against the risks that I will now refer to under section 60CC(2)(b).
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
Plainly, it is a serious matter to order that a child spend no time with a parent. Such orders, as are called for by the mother in this matter, should be restricted to cases where that outcome is mandated in the child’s best interest and no other regime of orders is appropriate or workable.
I do not find that the child is at risk of physical or psychological harm in the mother’s household. The mother has been the child’s primary carer since separation and on the material there is no reason this should not continue. Whilst the mother’s parenting could be and has been the subject of criticism for the failure to support and promote the child’s relationship with the father, the views of the family consultant are to the effect that the child is supported and protected in the mother’s care.
The father is unable or unwilling to accept the weight of the opinion of professionals in this case who have been involved with the child in these proceedings about the child’s views and the distress and anxiety she has presented with. Over many years, attempts have been made to re-establish a relationship and those attempts have been – or have proved to be counterproductive to the point that the child genuinely decided not to communicate or spend time with the father.
The father does not accept those views or that time or communication with him causes the child stress and anxiety. Any benefit in the child having the opportunity to have a meaningful relationship with the father into the future is, in this case, overwhelmed by other factors.
It is incumbent upon the Court where it is considering making an order for no time with one parent to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk of a child spending time with a parent.
In this case, the father, perhaps cognisant of the significant break in time since the child last spent time with him and the breakdown in that relationship, sought an order for “some supervised visits then eventually to no supervision”.
The Full Court has cautioned against making such orders in the absence of a review mechanism (see Champness & Hanson (2009) FamCAFC 96 and Slater & Light (2013) FamCAFC 4). Those decisions express concern as to making of such orders without, at least, providing an opportunity for the party, the subject of the supervision, some mechanism for seeking to remove the supervision requirement.
The difficulties confronting such an arrangement in this case include the evidence of the family consultant, referred to earlier, and the uncertainty of the father’s own proposal, and that such an arrangement has not worked in the past, even when the opportunity for it was in place. There is also the risk of the child being re-traumatised by seeking to do so.
The evidence in this case is the child would experience a real level of distress, such that it would significantly outweigh the benefits of the child spending time with someone who has, effectively, been not a significant parenting figure for her. Orders for no time, other than in accordance with the child’s wishes, would relieve this child, who is at a developmentally and emotionally vulnerable time, of the burden that has been reported she has experienced at the prospect of spending time, other than when she is ready to do so.
In making this determination, I have given greater weight to the consideration of the need to protect the child from physical or psychological harm against the benefit of having the opportunity to have a meaningful relationship with the father into the future.
Additional considerations
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
The Full Court in R&R: Children’s Wishes (2000) FLC 93-000 said that the wishes of the child are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child. Importantly, it was made clear the overall welfare of the child is the determining factor.
Having regard to the evidence of the family consultant, I am satisfied the child is effectively estranged from the father and has repeatedly said she will see him when she is ready. Further, given the evidence, which over time consistently recorded levels of distress experienced by the child when contemplating spending time with the father, I am concerned that some weight should be given to her views.
This case has seen the child attending upon many different professionals over an extended period of time, both over the course of the time that the first set of final orders were made in 2010, the second set of final orders were made in 2014 and during the course of the current proceedings. There have been exhaustive attempts to address the child’s presentation when confronted with spending even supervised time with the father. The parties and the child attended supervised contact and, ultimately, the assessment of all of the professionals involved was the child’s mental health had to be given priority.
The uncontradicted opinion of the family consultant in this case is that as at the date of the trial, after all that has been attempted, it is in the child’s best interests that her wishes and demands be supported. The father’s proposal is the child should be forced to see him. This has been tried and tried and it has failed and failed again. The father, who believes only he can say what the child wants, effectively, demands an outcome which is not supported on the evidence as it now stands.
The nature of the relationship of the child with each of the child’s parents; and other persons
The child has a close relationship with the mother. There have been reported problems with the child’s behaviour at home and elsewhere as a result of being burdened by the exposure to the parties’ conflict and the prospect of spending time with the father over many years.
The child’s relationship with the father has been interrupted, is now estranged and must defer to the urgency which must be attached to prioritising the child’s emotional and psychological welfare. There are historical disputes about the child spending time with the father.
The child currently does not have a functioning relationship with the father. For the child to have a relationship with the father it would require a further period of reintroduction, it would require the father to be patient and calm during that period, it would also require him to be consistent and committed to accepting that that time needed to be built up, it would require the mother to be willing to facilitate that time.
Against the history of this matter there is, in this case on the material before the Court, no prospect of any of those building blocks being in place into the future. If I did try to make an order for the father to spend any time with the child, the chances are it’s more likely than not that the orders would breakdown (again) and that the order least likely to lead to further proceedings in this matter is an order that does not compel the child to spend time with the father.
Extent to which the parents has taken or failed to take the opportunity to (i) participate in making decisions about major long term issues (ii) to spend time (iii) to communicate with the children
The mother’s case outline addressed this issue as follows:
“The applicant mother has made all decisions regarding the child’s welfare. The respondent father has failed to take advantage of an opportunity to participate in making decisions when presented with same and has failed to take advantage of orders in the past that provided for the child to spend time with him.”
Whilst matters are not as straightforward as that, there has been a significant hiatus in the child’s time with the father and the father’s explanation for his responsibility, for at least some of that delay, is wanting. I accept that there is some basis for the submission made by Counsel for the mother that the father lacks insight into the needs of the child.
It was also the father’s evidence he had not provided any financial support for the child, though he did say he understood, and I accept this is more likely than not, that the Child Support Agency told him that the mother first had to make an application for an administrative assessment.
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 or her parents; or any other child or other person with whom he or he has been living
At present, the child has not spent unsupervised time with the father since 2015. The material before the Court is the child was profoundly distressed in late 2015 and early 2016 and has been and is burdened by the prospect that she may be forced to spend time with the father.
The child’s emotional and psychological welfare must be given priority. Any change in the child’s circumstances, along the lines sought by the father, are not supported as they are likely to be deleterious to her emotional and psychological health.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relation and direct contact with both parents on a regular basis
The history of these proceedings makes it more likely than not that the child’s vehement opposition to spending any time with the father poses a significant practical difficulty. One only has to have regard to the recent unfortunate history of the many attempts to orchestrate supervised time; attempts which have all been tried and failed.
I am satisfied the demonstrated level of opposition exhibited by the child to spending any time with the father will be a significant impediment to any future arrangements that compel her to do so.
The capacity of each parent and any other person to provide for the needs of the child, including emotional and intellectual needs
In a decision cited as Reiner & Reiner (2009) FamCA 926, His Honour Cronin J had this to say in relation to emotional needs:
“245. Emotional needs are just as important in a child’s development as physical needs. The term “emotional needs” is vague and undefined. By it the legislators intended to convey the importance of parents providing comfort when a child is hurt, frightened and distressed.”
There is clear evidence of concerns in relation to this child’s needs, both intellectual, psychological and emotional, which must, in this case, I’m satisfied, be addressed above all else.
Whilst the family consultant harboured some concerns, and I share those, about the mother, his evidence clearly prioritised the overall needs of this child.
Given the uncertainty of success of the father’s proposal, the child’s ongoing developmental needs would likely be best met in the primary care of the mother with a view that, should the child express a view to spend time with the father in the future, this will be facilitated by the mother.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other relevant characteristic of the child
There was a great deal of dispute between the parties as to what the child was exposed to when spending time with the father prior to 2015. It is, however, possible to find that the child has been overwhelmed by the parties’ conflict.
The father’s cultural background and the difficulties that the child might have faced in navigating between the two worlds, at least the different households, was explored in the evidence. In summary, it appeared the father’s attempts at parenting were more directional, even authoritarian, whilst the mother’s were more permissive or indulgent, and certainly didn’t question the veracity of the child’s claims in 2015.
Notwithstanding this, neither the mother nor the father really, I’m satisfied, demonstrated they accept responsibility for their behaviour or the impact of this on the child.
Be that as it may, it would appear only time will heal the damage that has been done to this child and the family consultant was very clear any time spent should be when this child was ready to do so.
Attitude to the child and the responsibilities of parenthood, demonstrated by each parent
In Wang & Dennison No. 2 (2009) FamCA 1251 at paragraph [77], Her Honour Bennett J said, and this is apposite in this case:
“It is a sad fact in the Family Law jurisdiction that a determination which is most consistent with the best interests of children can appear to reward bad behaviour on the part of one parent. Ultimately, parental interests must be subordinated to what is in the best interests of the children.”
In this case, it is important to note that the circumstances confronting this child and the behaviours she has exhibited, as observed by the unchallenged evidence of the family consultant referred to earlier. It is that evidence which should be the focus of the Court’s inquiry rather than engaging in a discussion of the alleged alienating behaviour of the mother that was referred to by the father before the Court. The evidence is that in this case the conflict between the parties over the child has had a profound effect on her and, for her sake that must be brought to an end.
Notwithstanding the concerns I’ve expressed above, the mother has demonstrated good parenting, except insofar as it relates to the conflict with the father. In contradistinction, the father lacks insight into and accepts no responsibility for the situation the child has been placed in.
Any family violence involving the child or a member of the child’s family; any family violence order
The mother’s material made many claims about family violence after the relationship.
There have, however, been intervention orders made against the father over an extended period, protecting the child and the mother from the father engaging in family violence and I shall take that and the period over which they were made into account.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings
Plainly, this is a case in which the parties have been litigating for far too long. It would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to this particular child.
As noted earlier, given the history of this matter, if there was an order compelling the child to spend time with the father, the chances are extremely high the orders would break down and the order least likely to lead to further proceedings is an order that does not compel time with the father.
Parental Responsibility
Subject to two issues, to which I will return, after the close of the evidence, the matter proceeded on the basis of a concession by the father that the mother should have sole parental responsibility and the family consultant, in his evidence, did not take issue with this.
In circumstances where there is minimal communication between the parents and attempts at communication, even electronic, fail, that was an appropriate concession for the father to have made.
Even if the father had not made the concession, sole parental responsibility to the mother would likely to have been the outcome, given that the child lives with her and there’s an extremely poor relationship between the parents.
In those circumstances the only appropriate order will be the one which reflects the living arrangements for the child, in that the mother, who has the care of the child, should be given parental responsibility in relation to long term decision-making. Anything else would be clearly unworkable and not in the child’s best interests.
The issue of what information is provided to the father – and I bear in mind the concession of the father – by the mother – needs to be approached on the basis that it is in the child’s best interests for the mother to have sole parental responsibility.
It would be difficult to see what valuable and considered input the father could bring to bear on major long term issues with the additional provision of the name of the school and the child’s residence which he insisted on. The risk is that this would simply provide an opportunity for him to pursue the child or the mother by being able to locate them, and having regard to the history of this matter, that is not a risk that this child should have to be exposed to.
I am quite satisfied that the father’s feelings about the mother and about the child and going to her school are such that he would be unable to restrain himself and having access to those locations would potentially cause emotional and psychological harm to the child. I am satisfied that he has not yet reached a point of acceptance of the circumstances he has found himself in and that they are, at least in some part, a product of his own actions.
There will be orders for the regular supply of school reports and photos of the child to the father in the terms sought by the mother as this will ensure that the child can go about her daily activities free from concern that the father may attend unannounced.
Equal time, substantial and significant time or time with each parent
Given the finding made in relation to parental responsibility, the requirement to consider equal time or to substantial and significant time, pursuant to the provisions of section 65DAA, is not triggered and as His Honour Kent J indicated in Heath & Hemming No. 2 (2011) FamCA 749, the Court should then make parenting orders consistent with the findings made in relation to section 60CC, having regard to section 60CA and section 60B.
In this case, neither parent proposed to share parenting arrangement for the child. Given the level of antipathy between the parents that, in any event, would not be appropriate order or reasonably practicable.
In weighing up all the relevant section 60CC factors, those which attract substantial weight in these proceedings are each of the primary considerations along with the additional considerations referred to, including the child’s views, the nature of the child’s relationship and the need for finality. For those reasons it is not in the child’s best interests or reasonably practicable for the child to live with one parent and spend substantial significant time with the other.
In this case, this child was first interviewed many years ago and in the current proceedings again by the family consultant and has maintained her opposition to spending time with the father and exhibited significant distress at the prospect of being forced to spend time with him over many years. Such is the level of distress and opposition to spending time with the father that she has threatened to self-harm in the past. I am satisfied that any proposal requiring her to do so is likely to be unsuccessful. That this is so is evident from the many attempts that have been made to have supervised time with the father at a contact centre and including during the preparation of the family report.
The mother’s proposal is that the child should not be forced to spend time nor communicate with the father. The family consultant opined that that was likely to see the child more settled and content in her lifestyle.
Suspension of time with the father after June 2015 has, on the evidence, led to a remarkable improvement for the child in her emotional stability, her behaviour, her application and results at school.
These parents have been involved in conflict and litigation since shortly after their separation. It has been ongoing in one court or another, whether that be the Federal Circuit Court, the Federal Magistrates Court or the Magistrates Court. It has been ongoing and relentless and this child has been examined time and time again. It must stop.
I accept the view of the family consultant that this child needs respite from that conflict. In my view, that will not occur if there is an order that compels that the child spend any time with the father. It will only occur if the child is left with the mother and there be no order requiring her to see the father.
Any other orders will, more likely than not, lead to further litigation and further emotional and psychological harm to the child. Weighing those matters in the balance, unfortunately it leads firmly to the sad conclusion that the mother’s proposal is the least likely to harm the child.
Conclusion
Accordingly, and for the reasons set out above, I make orders as set out exhibit A1 as I am satisfied that of the proposals before the Court, they are more likely to promote the child’s best interests.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 12 December 2018
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