Frederick and Frederick (No 2)
[2016] FamCA 726
•30 August 2016
FAMILY COURT OF AUSTRALIA
| FREDERICK & FREDERICK (NO. 2) | [2016] FamCA 726 |
| FAMILY LAW – CHILDREN – Consent orders – undefended hearing – best interests of the children –where the father disengaged from the proceedings – where father was charged with indecent dealing with a young girl – where those charges did not proceed – where mother nor Independent Children’s Lawyer do not contend the father presents an unacceptable risk of harm – where mother’s former partner poses risk to the children – where there are orders prohibiting the mother from exposing the children to the former partner – where father alleges alienation – where mother poses no risk of emotional harm based upon alienation – where father’s communication with the children is inappropriate and he interacts poorly with them, there is no risk of harm. FAMILY LAW – CHILDREN – Wishes of the child – where the children are mature and their wishes given great weight – where one child is over 17 years of age – where Family Report writer concluded given the children’s ages, they should be able to make their own decisions about future contact with their father – where children’s wishes are given substantial but not determinative weight. FAMILY LAW – FAMILY VIOLENCE – where father has been convicted of assault of one of the children – where presumption does not apply – where parents cannot communicate – where parents cannot discharge responsibilities imposed upon them by section 65DAC of the Family Law Act 1975 (Cth) – where there is no equal shared parental responsibility – where it is in the best interests of the children for the mother to have sole parental responsibility. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61(DA), 65DAA(1), 65DAC Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 S v Australian Crime Commission (2005) 144 FCR 431 Wacando v The Commonwealth (1981) 148 CLR 1 |
| APPLICANT: | Ms Frederick |
| RESPONDENT: | Mr Frederick |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Dooley |
| FILE NUMBER: | BRC | 3198 | of | 2007 |
| DATE DELIVERED: | 30 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 24 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fynes-Clinton by direct brief |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Slade Jones |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Dooley Solicitors |
Orders
That all previous parenting orders are vacated, save for those made by Federal Magistrate Cassidy on 27 January 2011 with respect to child support.
That T born … 1999 and C born … 2002 (“the children”) live with the mother.
That, subject to order 4, the mother have sole parental responsibility for the children.
That, despite Order 3:
(a)except in case of genuine urgency or emergency affecting the health, safety or welfare of a child, the mother must advise the father by email of any decision which she proposes to make in relation to a major long-term issue affecting either child:
(i) explaining the nature of the proposed decision, and the reasons why she proposes to make it; and
(ii) providing copies of any documents or information relevant to the proposed decision (as non-exhaustive examples: information packages provided by proposed schools; medical reports or advice in relation to any proposed medical treatment); and
(iii) inviting the father to express his views, including any views which he has on alternate courses of action for the matter to which the decision relates;
(b)if the father wishes to express views, including any views which he has on alternate courses of action for the matter to which the decision relates, he must do so by email to the mother to be sent not more than 14 days after the date of the mother's notice;
(c)if the father expresses views (by email and within the time specified in paragraph 4(b)), including any views which he has on alternate courses of action for the matter to which the decision relates, the mother must give real and genuine consideration to those views before she make or implements the decision;
(d)the mother must notify the father of the decisions that she has made as soon as practicable and in any event (and except in case of genuine urgency or emergency) before she takes any action to implement the decision.
That the children spend time with and communicate with the father as they see fit.
That in order to give effect to Order 5:
(a)the mother must:
(i) provide the children with a mobile telephone for their use in communicating with the father, and ensure that the father is aware of the number for that telephone; and
(ii) take all reasonable steps to ensure that the telephone is charged and available for use during the day and early evening;
(b)the mother must take all reasonable steps to facilitate either or both children spending time with the father in the manner and at the times the child wishes to do so.
That unless otherwise agreed by the parties, all changeovers must take place at the residence of Ms B if Ms B agrees to accept the obligations placed on her by this order, with:
(a)the mother to deliver the child or children 30 minutes before the commencement of time and collect the children 30 minutes after the conclusion of time;
(b)the father to collect the children at the commencement of time and deliver the child or children at the conclusion of time
That if Ms B does not agree to accept obligations placed on her by paragraph 7, and in default of other agreement by the parties, all changeovers must take place at the car park of Hungry Jack’s … at a time notified by the party delivering the children to the party collecting them.
That the parents will not communicate with each other except for the parents communicating on child-related matters with such communication to be by way of text message or email (and by telephone only in cases of emergency) and that such contact with respect to both will be limited to issues in respect of the children only.
That for the purposes of communication referred to in paragraph 9 above, the parents must keep each other informed at all times of their mobile telephone numbers and email addresses.
That the parents authorise, by this Order, the school attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports and school photographs relating to the children (at that parent’s cost).
That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children nor (so far as possible) permit other persons to do so.
That neither parent will commit any act of family violence to the other within the meaning of that term as defined in section 4AB of the Family Law Act 1975.
That the mother must not knowingly expose the children to Mr J.
(a)That the father must properly complete (to the extent that he needs to do so) sign and return to the mother an application for the issue of a passport to the child C within 7 days of any such application being received by him from the mother;
(b)That if the father refuses to sign that application and the mother is unable to obtain issue of a passport for C without a signature on the application by or on behalf of the father, the Registrar of the Court at Brisbane is authorised and directed to sign the application for and on behalf of the father, and that signature will have effect as if signed by the father personally.
That the Independent Children’s Lawyer is discharged, with the thanks of the Court.
That otherwise all extant applications are dismissed and the matter removed from the list of active pending cases.
NOTATION:
A.These orders were made by consent between the Independent Children's Lawyer and the Applicant after the Respondent disengaged from the proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Frederick & Frederick (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC1398/2007
| Ms Frederick |
Applicant
And
| Mr Frederick |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These reasons for judgment arise from orders which I pronounced on 24 August 2016 at the conclusion of an undefended hearing relating to the appropriate parenting arrangements for the parties two children, being T (born in 1999 and hence presently 17 years of age) and C (born in 2002 and hence presently 14 years of age) (“the children”). Although listed for trial on that day, shortly after the father failed to persuade me to adjourn the hearing, he absented himself from further involvement. Ultimately the mother and Independent Children's Lawyer were agreed as to the orders that were in the best interests of the children, which in substance provided for a continuation of what has been occurring now for some time, namely that the mother have sole parental responsibility for the children, who would live with her and spend such time and communicate with the father as they may wish.
The proceedings are of considerable vintage, having commenced in February 2011. Prior to that, final orders had provided for the children to live with the mother and spend five nights per fortnight with the father. However in 2011 the father was charged with indecently dealing with a young girl, which prompted the mother to bring the further proceedings. Ultimately the charge against the father did not proceed, but the Family Court litigation limped along notwithstanding.
On 5 August 2016, the children expressed strong wishes to the Family Report writer, Ms G, that they wanted to choose when and if they spend time or communicate with the father. In the case of the older child, she intermittently spends time and communicates with the father. Unfortunately however, for some time now the younger child has done neither, and whilst telling the Family Report writer she presently did not wish to, did not exclude doing so in the future. In the context of their ages, and Ms G’s view that they were mature girls, plainly their views must be given great weight. Indeed in the case of the older child, the idea of coercing her to spend time with the father contrary to her wishes is nigh ludicrous.
BACKGROUND FACTS
The father
The father was born in 1962 and hence is presently 54 years of age. He completed year 12 at school, and since that time has been in constant employment as a skilled tradesman. He has a son to a prior relationship who is now aged 26. He met the mother in 1994 when he was about 32 years of age.
The mother
The mother was born in 1970 and hence is presently 46 years of age. She completed year 12 and then commenced training to become a health professional. She has been employed in that field since attaining her qualifications. She was in that employment when, aged 24, she met the father.
The relationship
It is unnecessary to traverse in any detail the history of the parties’ relationship. It appears as though it first suffered some strain when the maternal grandfather moved into the parties’ house prior to the older child’s birth, and further tension developed after the younger child’s birth. The mother says the father became very demanding and dominating, and although there was never any physical violence between them, progressively the mother began to realise that the father’s behaviour towards her was verbally abusive and controlling. The parties separated on 31 December 2005 after some 11 years together.
Post-separation
Initially the father, who had left the former matrimonial home, continued to see the children in it whilst the mother was at work. However for reasons which it is unnecessary to traverse, arrangements were formalised in 2008 by final orders in the Federal Magistrates Court, providing for a 9/5 split of the children’s care in the mother’s favour. That was continuing without any apparent difficulty as at the Christmas school holidays in 2010/11, during which time the father took the children, and one of T’s friends, on a camping trip. Upon the return of that trip it transpired that T’s friend accused the father of having sexually abused her. The father has always contended that, whilst there may have been some inadvertent touching of the child in the relevant area, it was not conscious or deliberate and certainly not accompanied by any circumstance of indecency. He further says that the mother and others have conspired to fabricate that allegation. Certainly as I have indicated, ultimately the charge did not proceed and moreover, neither the mother nor the Independent Children's Lawyer contends that the father presents an unacceptable risk of harm to the children, whether by virtue of the circumstances which gave rise to the charge, or otherwise. As to the father’s allegation of alienation, I shall consider that when considering the risks posed by the mother.
After his charges, initially the father saw the children on a strictly supervised basis, but that was relaxed to the point where the father, under interim orders, enjoyed unsupervised time with both children every second Sunday from 9:00am until 5:00pm. Additionally a communication regime was ordered. Those were the orders that prevailed at the time of trial. However for reasons which I shall explore in due course, notwithstanding those orders, in recent years the children have tended to vote with their feet as to whether they spend time or communicate with the father.
The children
The older child is presently completing year 12 and is keen to attend university or the Conservatorium of Music. She has a part time job and appears to enjoy it. She is doing well at school and is motivated to succeed.
The younger child is presently in year 9 and appears to also be doing well at school. She has a circle of friends who she is close to, and otherwise appears to be a generally well-adjusted young girl.
Both children have some health issues but they are of no moment in this litigation.
THE ISSUES
In anticipation of the matter proceeding as a defended hearing, at the Trial Management Hearing on 29 June 2016, with the assistance of the parties, I identified that the following issues were likely to substantially determine these proceedings.
1.What is the nature of the children’s relationship with each parent.
2.Would the children benefit from having a meaningful relationship with each parent, and if so, how might it best be facilitated.
3.What risk, if any, does each parent and their household pose to the children.
4.Could the parents’ communication support equal shared parental responsibility.
5.What weight should be given to the children’s wishes as to their parenting arrangements in light of their age.
6.What would be the effect on the children of any differential regimes in relation to their spending time and communicating with the father.
However ultimately there was no proposal for a differential regimes in relation to the children, and hence at the undefended hearing issue 6 fell away.
Once I have considered the relevant statutory provisions and legal principles but in advance of a traverse of any residually relevant s 60CC consideration, I shall address those issues.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides 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 either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
NATURE OF CHILDREN’S RELATIONSHIP WITH EACH PARENT
It appears as though both children have a good relationship with their mother, and derive significant care, nurture and support from it.
On the other hand the children’s relationship with their father appears more problematic. For instance, the father told the Family Report writer that the older child only spends time with him because he spends money on her, and that if he didn’t do so, she wouldn’t come to see him.[2] For her part, the older child told the Family Report writer that although she likes spending time with her father, he always asks her what she wants and what their mother is up to, but she does not wish to speak about those things with him.[3] That said, she plainly has a desire to maintain both telephone and face to face contact with her father, although she emphasised to the Family Report writer that she is presently very busy at school, and that has to be her first priority at this stage of her life. Significantly she told Ms G that she understood the importance of maintaining a relationship with both parents, and wanted to have both of them at important events in her life.[4]
[2]Family Report paragraphs 4.35 and 7.7.
[3]Family Report paragraph 5.2.
[4]Family Report paragraph 5.5.
The younger child seems to have a more negative view of her father. Its genesis may lie in the fact that, when the father was having strictly supervised time with her, he grasped her so as to withhold her from those supervising him, in consequence of which he was charged with, and convicted of, assault. The child plainly recalls this event because she told the Family Report writer of it,[5] although she says that she is no longer scared of her father physically abusing her.
[5]Family Report paragraph 5.10.
At paragraph 5.8 of the Family Report Ms G noted as follows:
[The younger child] stated her father has never changed over the years and she doesn’t think he ever will. She said he always tries to control things and she doesn’t feel comfortable in his care. [The child] confirmed she hasn’t spent time with her father for about 12 months. She said she didn’t really want to talk about why she stopped spending time with him in detail, only to say she feels scared when she is with him. I asked [the child] what she felt scared about and she said she gets really upset and emotionally scared when with her father because of the things he says and the way he acts. She confirmed that she believes it is him that is manipulative and not her mother and she just doesn’t want to spend time with him.
The conclusion I reach is that the older child has an extant and meaningful relationship with her father, which she enjoys and wishes to continue, but the relationship between the father and the younger child is somewhat more tenuous, although likely to still be of significance to both her and the father.
BENEFIT OF CHILDREN OF HAVING MEANINGFUL RELATIONSHIP AND FACILITATION OF IT
There seems little doubt that both children would benefit from having a meaningful relationship with each of their parents, and that it would likely best be facilitated by the children spending regular face to face time with them, and both parents being involved in all areas of the children’s lives. There is, however, some difficulty in the father’s relationship with both of the children, as I have previously discussed, and moreover it appears as though on occasions the father is not particularly insightful as to his children’s needs, or respectful in his communication with them. Even accepting that both of the children are teenage girls, likely to be testing boundaries and presenting with some difficult behaviours, on occasions the father’s conduct and conversation with them has been inappropriate.
In the mother’s affidavit filed 27 June 2016 she referred to, and annexed, a diary which she kept of the father’s interactions with the children. Some of those entries are unremarkable, but some make disturbing reading. For instance on 9 August 2015 it appears as though the older child had declined to see her father on that day, which caused the father to attend upon her home and have a conversation with her, which he openly video recorded. As it turned out the child was also recording it, and a transcript of that conversation appears in the mother’s affidavit. In that conversation the father refers to court orders, constantly accuses the mother of manipulating the children to think ill of him, denigrates the mother, for instance by calling her “a highly manipulative destructive deceitful vindictive person” and otherwise behaves quite inappropriately. Ultimately when the father said that he was going, which appeared to cause the older child to laugh, in response to his question “what’s funny”, she said “you can just always watch it on your tape.”
Unfortunately this is only one of many interactions which reflect badly on the father, even accepting that he is of the firm belief that the mother has indeed alienated the children from him. The simple fact is that the children will not derive benefit from such interactions with their father, and they are likely to deprive both the father and the children of having a meaningful relationship with each other.
In this respect it is educative to again note what the younger child said in relation to her father at 5.8 of the Family Report. Further, at paragraph 7.7 of the Family Report, Ms G opined as follows:
This attitude and lack of insight is an example of my concern for [the father]. His inability to let go of the past issues will continue to impact on his relationship with his children in the future. The children just want to be normal. He stated to me that he though [the older child] only spent time with him because he spends money on her. I tried to speak to him about how their school work was important to them both. [The older child] is more than happy to maintain informal contact with her father in the future, especially when she begins driving on her own. She spoke of wanting her parents to be available for her and to enjoy special events such as her graduation. [The older child] also spoke of how she couldn’t remember when her parents could be in the same room. She said it would be more than 10 years since this last occurred and how angry and upset that makes her feel. [The younger child] was much more guarded and reluctant to spend time with her father at all. She states his attitude has always been the same and she didn’t think that would ever change. Both girls denied that their mother has influenced their views and wishes and reported it was the father that was manipulative and kept talking about their mother and asking what they wanted. [The younger child] also spoke of being assaulted by her father whilst at supervised contact with the department and how scared this made her feel.
My ultimate conclusion is that the children would indeed benefit from having a meaningful relationship with each of their parents, which would be best facilitated by spending regular face to face time with both of them, but there will need to be some changes in the way the father interacts with both of his daughters in order for them to obtain optimal benefits from that relationship.
RISK EACH PARENT AND HOUSEHOLD POSES TO THE CHILDREN
At one stage post-separation, the mother was in a relationship with a man who plainly was violently disposed, and had a considerable criminal history (including rape), together with an array of mental health challenges. The father correctly identified that that person posed a risk to the children so long as the mother was in a relationship with him, irrespective of whether he was living in her household or not. However not only does the mother depose to that relationship now having ceased, and having ridded her and the children’s lives of him, but the orders which I made would prohibit her from exposing the children to that gentleman. Those orders, so long as they are complied with, and the mother’s life remains free of her former partner, sufficiently ameliorate such risk as that relationship may have otherwise posed to the children.
The other risk which it is asserted the mother poses to the children is that she alienates the children from the father and hence emotionally harms them. The mother denies that she is the one so manipulating the children, and for their part the children’s perception is that it is the father who is the manipulative one, not the mother.
It seems to me to be educative to consider the differing views which each of the children have of the father. If there had been some deliberate scheme to alienate the father from the children, it is perhaps unlikely that the older child would – seemingly with the mother’s blessing – continue to spend time with the father and to communicate with him. Moreover, the younger child’s statements to the Family Report writer recited above would tend to leave little doubt that it is her direct experiences of the father which have caused her to wish to, at least temporarily, cease to have any involvement with him, rather than any influence of the mother. Further, there are many instances in the mother’s material of the father’s poor interaction with the children, all of which would amply support the conclusion that if there has been alienation, it is more likely to be the product of the father’s conduct towards the children, rather than the mother’s.
I am not satisfied that the mother poses any risk of emotional harm to the children based upon alienation.
As to the father, whilst he interacts poorly with the children on occasion, there was no real suggestion that that has effected or is likely to effect emotional or psychological harm to the children. The highest that the evidence went was at paragraph 7.9 of the Family Report, where Ms G opined that “[p]arents who cannot communicate and who are at war with one another and who have no respect for the other parent will place children at risk of emotional harm.” That is a comment in relation to both of the parents, rather than the father alone.
I am not satisfied that the father poses any substantial risk to the children if they were to spend unsupervised time with him.
PARENTS COMMUNICATION AND EQUAL SHARED PARENTAL RESPONSIBILITY
It is plain that these parents cannot communicate in any civil fashion. To the Family Report writer, the children were virtually mourning this fact. For example at paragraph 5.3 of the Family Report it is noted:
[The older child] said she can’t remember the last time her parents could be in the same room together. She said it would have to be more than 10 years ago. She said they appear to like playing games with each other. She said she thinks this is all a game to her father and “he appears to get pleasure from screwing everyone around.”
As for the younger child, at paragraph 5.10 of the Family Report it is noted that “she just wants the process to end so she can concentrate on her life and her school studies.”
I am well satisfied that these parents could not possibly discharge the responsibilities imposed upon them by s 65DAC if there were an order for equal shared parental responsibility, as they simply cannot effectively communicate. That would result in an eternal stalemate in relation to any major decisions. Indeed, before he departed the proceedings, when explained to the father that the Independent Children's Lawyer would support an order giving sole parental responsibility to the mother, his comment was to the effect that “that’s been the situation for years any way.”
WEIGHT TO CHILDREN’S WISHES
This is a critical matter in this case. In the case of the older child, she is over 17 years of age, and her wishes deserve nigh on determinative weight. As I have already observed, it would be ludicrous to make orders requiring her to act against her wishes. In a matter of months, she will be an adult.
The younger child’s wishes are a little different to those of her sister, in that she does not wish to presently have any interaction with the father. However she expresses reasonable, fact-based and logical reasons for doing so, and acknowledges that the older child is entitled to, and does, feel differently. There is no reason to think the younger child’s wishes are not genuine, or the product of considered thought. They therefore deserve considerable weight.
In relation to both girls Ms G opined “given [the older child] is now 17 years of age and [the younger child] is now 14 years of age, they should be able to make their own decision about future contact with their father.” Although less confidently in the case of the younger child than the older child, I accept that both children are sufficiently mature to give her wishes considerable weight. The older child’s wishes deserve greater weight than the younger child’s.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have traversed both of the primary considerations, and a number of the additional considerations, in discussing the issues in this case. However by reference to additional considerations which I have not considered, I observe as follows.
The father has not sought to participate in making decisions about major long term issues in relation to the children, but by the same token the mother has not attempted to involve him in that process.
The father’s communication regime with the children has on occasions been somewhat sporadic, as detailed in paragraph 24 of the mother’s affidavit filed 18 October 2012.
It appears as though the father may remain in arrears in relation to child support obligations, and certainly was in arrears as at 2012.
There do not appear to have ever been any family violence orders between these parties.
PARENTAL RESPONSIBILITY
Plainly there are reasonable grounds to believe that there has been family violence in this case, at the very least because the father has been convicted of assault of one of the children. The s 61DA presumption therefore does not apply. Further, given my finding that the parents cannot communicate well enough to discharge the obligations that s 65DAC would impose upon them in consequence of an order for equal shared parental responsibility, a stalemate in relation to any decisions could not possibly be in the children’s best interests. I am satisfied that it is in the children’s best interests that parental responsibility be given to the mother, since on any view it is likely that the children will remain primarily resident with her.
WITH WHOM SHOULD CHILDREN LIVE
The children have always primarily lived with the mother. They have a meaningful relationship with her and derive substantial benefits from it. Whilst they do have a meaningful relationship with the father (albeit less so in the case of the younger child than the older) there are problems in the father’s interaction with both children, perhaps because of his fixed view that they have been alienated from him. There can be no doubt that it is in the children’s best interests to remain primarily living with the mother.
TIME AND COMMUNICATION WITH FATHER
Notwithstanding interim orders providing for time and communication between the children and the father, in fact the children have tended to vote with their feet of recent years, and their time with him has been ad hoc. For some time now the younger child has refused to see or speak with the father. Given her age, her wishes must be given substantial but not determinative weight. As I have observed, in the case of the older child, her wishes should be given even more weight.
I am comfortably satisfied that forcing the younger child to spend time with her father against her wishes would be positively counterproductive to the prospect of a long term meaningful relationship with the father. Coercive orders in relation to the older child would simply be ridiculous.
In the case of these clearly intelligent, mature, articulate children, who I assess as having formed independent views, which they firmly hold, as to the circumstances in which they wish to spend time and communicate with their father, I am well satisfied that the order that is in their best interests is the one which they prefer, namely that they spend time and communicate with their father on the terms, times and in circumstances, of their choosing.
OTHER ORDERS
A number of other orders were sought by the mother including in relation to the father signing an application for a passport for the younger child to permit her to travel overseas, together what may be called standard non-denigration orders, and other uncontentious orders, for instance restraining each party from exposing the children to family violence. I am satisfied that those additional orders are in the children’s best interests..
CONCLUSION
For these reasons I made the orders which I pronounced on 24 August 2016.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 30 August 2016.
Associate:
Date: 30 August 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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