Grollo & Bilson (No 2)
[2017] FamCA 440
•26 June 2017
FAMILY COURT OF AUSTRALIA
| GROLLO & BILSON (NO 2) | [2017] FamCA 440 |
| FAMILY LAW – CHILDREN – where some issues were matters of consent relating to teenagers but the court was required to determine appropriateness of other orders. |
| Family Law Act 1975 (Cth) | |
| AMS v AIF (1999) 199 CLR 160 | |
| APPLICANT: | Ms Grollo |
| RESPONDENT: | Mr Bilson |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 6848 | of | 2014 |
| DATE DELIVERED: | 26 June 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 1, 2 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Tulloch |
| SOLICITOR FOR THE APPLICANT: | Eales & Mackenzie |
| COUNSEL FOR THE RESPONDENT: | Mr Puckey |
| SOLICITOR FOR THE RESPONDENT: | KENNEDY PARTNERS |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MS BOYMAL |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | VICTORIA LEGAL AID |
Orders
All existing parenting orders are forthwith discharged.
The father of B born … 2001 and C born … 2003 have sole parental responsibility for all major long-term decisions relating to their education and health and he inform the mother of any such decision.
The mother and the father of B and C have equal shared parental responsibility for all other major long-term decisions relating to those children other than the matters in paragraph 1.
The children forthwith live with the father.
The mother and the father are each restrained by injunction from denigrating the other to, or in the presence of, their children.
At his expense, the father is to continue to ensure the attendance of the two children upon psychologist Mr D for such period as the psychologist considers it necessary.
Pursuant to s 65Y(2) of the Family Law Act 1975, the father has permission to take both children from the Commonwealth of Australia to travel with them internationally.
To the extent that future leave may be necessary, the mother has leave to apply for further parenting orders relating to her time and communication with the two children in the event that any agreement with the father about those two issues breaks down.
Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
For the avoidance of doubt, each parent may show these orders to any school or health professional involved with the two children.
A copy of these orders and the reasons for judgment this day be provided by the Court to Family Consultant Ms E.
A copy of these orders, the reasons for judgment this day and the family report of Ms E may be provided by the solicitor for the father to psychologist Mr D.
The order for the appointment of an Independent Children’s Lawyer is discharged and she is further discharged from the proceedings save for the purposes of explaining these orders to the children if considered appropriate.
It is certified that it was reasonable in the circumstances for the parties to engage counsel to appear for them.
That all other applications for parenting orders are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grollo & Bilson (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6848 of 2014
| Ms Grollo |
Applicant
And
| Mr Bilson |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The orders that precede these reasons arise out of parenting proceedings between Ms Grollo (“the mother”) and Mr Bilson (“the father”) and they concern B aged 15 and C aged 13 years.
The final hearing concluded earlier than was anticipated because the mother agreed not to pursue orders that would see the children return to live with her. The dispute was then contained to one of what orders should be made and how they should (if at all) be worded.
Part of the parents’ agreement included acknowledgements about what they would so in the future but that raised questions:
· With the factual background of this case, is it proper to make orders at all?
· Should the court acknowledge, or have any input into, what the parties described as “notations” to orders to which they were consenting?
· If notations are included on orders, what is their force?
· Do notations which have questionable (or no) effect as enforceable agreements, create expectations in parties which, if the court “notes” them, gives rise to the possibility of further proceedings being initiated and thereby encouraging further litigation?
· How effective are notations (and indeed parenting orders) to bind third parties such as schools and social scientists?
· Does the court have power to make as parenting orders, statements which authorise or explain the respective parental responsibilities of the parties?
This case raised numerous difficult issues which will be apparent from the background set out below. I find that the only proper orders that the court should make here are those set out in the formal orders. Those are in the best interests of these two children. It is not appropriate to formalise those orders further by the addition of explanations, authorisations or notations. That said, these reasons will reflect what each parent wanted as an outcome for the future.
This litigation is not simple and it is troubling because of the problems these children have faced in their parents’ respective households.
Despite the father’s apparent wealth, and the mother’s asserted impecuniosity, these children have lived lives that could only be described as dysfunctional.
There is acknowledged antipathy between the mother and her daughters such that endeavouring to set boundaries seems pointless. There is a sense that these parents and the children will do what they please.
The mother did not attend the second day of the hearing saying through her counsel that she felt intimidated by the father. Her absence was unfortunate because this hearing, conducted on the basis of submissions, was an attempt to pursue solutions rather than an adversarial testing of the evidence. Notwithstanding she gave her counsel instructions about her position, the court’s hands were metaphorically tied by the disputed and untested evidence.
For his part, the father said that in recent days, the children had expressed a desire for change and they saw a future for themselves which presumably meant that until now, the picture had for them, been bleak. The mother’s position however was one of pessimism about any change at all.
There is no question that the children will live with their father. There is little optimism in the court that the children will have much of a relationship with their mother.
The experienced Independent Children’s Lawyer supported the father’s case and agreed that it was unfortunate that of all days in the lives of these children, the mother chose not to attend the final day of the court hearing.
Much hope for the future of the children lies in their relationship with a psychologist, Mr D, in Queensland. He has taken a guiding hand role which may account for the recent flowering of hope. If that fails, the next few years will see a repetition of the problems of almost parentless and unguided teenagers.
Contributing to the problem is the unresolved dispute between the parents about whether this court has jurisdiction to determine the mother’s claim for financial relief. That remains unresolved. The father disputes jurisdiction but has funded much of the mother’s representation and travel; it would not be disputed that he can afford to do so.
If the court does not have jurisdiction to determine the financial issues between the parties, the mother’s only other proposed remedy lies under state law and there is an additional difficulty because she would need leave of a state court to bring such proceedings. The proceedings in this court revolve around a declaration as to when the parties de facto relationship ended. If, as the father asserts, it was before 2009, the mother will need to seek leave to commence proceedings where she is more than six years out of time. I have no doubt that all of that adds to the stress of these particular parenting issues.
Background of the parties
The father is 57 years of age and the mother 51 years. The father is an executive manager. The mother describes herself as “home duties”.
The parties’ relationship began in 2000. They did not marry. The ending of that relationship is, as just mentioned, a matter of real dispute. I am informed that the dispute over jurisdiction was heard over many days.
The mother’s evidence was that until October 2015, she was the parent most responsible for the care of these children. Indeed, there seems little dispute that the father was overseas for quite some time of the children’s lives.
The mother makes significant allegations of family violence against the father and even in the hearing itself, alleged that she was intimidated by him only weeks ago. The court is not asked to, nor can it, determine the questions of family violence here. The evidence of allegation and denial was not tested but more importantly, it is not relevant to what has to be decided.
The 2015 watershed
The critical date is October 2015 because the court then, having heard some oral evidence from a family consultant, removed the children from the primary care of their mother and moved them to the father. He was then permitted to move the children to Queensland but there were restrictions in relation to their attendance at a particular school. It is not clear what founded that dramatic change but each parent made accusations against the other. Nevertheless, having had the children removed, the mother did not appeal against the orders.
More significantly, to the extent that the change of residence and location was designed to settle these children and give them stability, the impression (and that is all it can be absent a testing of the evidence) is that the dysfunctional life of the children worsened.
At least one of these children was resistant to the move to Queensland. There have been other changes of schooling, reports of hospitalisation for suicidal ideation, involvement of a number of “nannies” caring for the children, extraordinary use of (perhaps better described as unregulated use of) social media and inappropriate sexualised behaviour. There is evidence that one child asserts that she was sexually assaulted in 2016. All of that, seems to be asserted to have been a problem after the courts orders.
The mother gives the impression of two children who were not controlled even if their physical needs were met.
State welfare authorities have been involved but have chosen neither to intervene nor remove the children from the care of either parent.
The father’s position
The father’s position is that whilst there is justification for pessimism, it is not that bad as the mother portrays it. He says that the children now have a view that they want to succeed in life and have settled back into school. He maintains that with the assistance of Mr D, the children are managed well by him.
The 2015 evidence
Much of the court’s perception comes from the transcript of evidence of family consultant Ms E in 2015 who was so concerned about what was happening in the lives of the children that she made recommendations that underpinned the orders then made. Notwithstanding that, she also made a mandatory report to the Department of Health and Human Services. I have no evidence as to what happened and whether indeed there was any investigation by that department.
Until those orders were made, the family had also engaged with psychologist Mr F who gave oral evidence by telephone in 2015 to indicate the problems. His evidence suggests that the lack of control was a serious dilemma and that much of the blame for that lay with the mother.
The 2017 expert evidence
In May 2017, Ms E had another opportunity to view and assess the situation. Her report runs to 49 pages. It is important to immediately acknowledge that this evidence, which all parties had access to, was not tested but her evaluation was not accepted by all parties nor entirely criticised by all either.
Having regard to the controversy that the court now has to resolve, that conflict does not affect what should underpin the orders.
Ms E began her evaluation by reference to her discussions with Mr D. The parties, but not the court, had a very recent report from Mr D. That report has not been placed into evidence. His view is apparently optimistic that these children have changed.
Ms E said:
[112][Mr D] in his therapeutic role with the children has provided some confirmation about the children’s experience of abuse, whilst in their mother’s care. The children’s claims have remained consistent which raises objective concerns about (the mother’s) capacity to parent either appropriately, or effectively. When the children live with their mother they did not attend school regularly, there was little indication learning occurred, and the child [B] planned to quite school as soon as possible. There was evidence one or more of the children conducted themselves in a sexually inappropriate manner, they allegedly consumed alcohol and consorted with a range of persons, beyond adult supervision, whom they had met on social media. The children were also defiant, anti-authoritarian and to varying extents, non-compliant with social norms. Their behaviour was considered so unredeemable that they had been asked not to return to various schools and they were repeatedly exposed to risk.
[113](The child [B]) asserted that post October 2015 she was actively encouraged by one parent, her mother and their family members and friends to continue this behaviour and to conduct herself in a manner that would ensure her optimal exposure to a quagmire of potential and possibly life-threatening risk. This approach of using emotional dysregulation and poor behaviour to achieve your own goals appears to have been (the mother’s) a legacy to her children and was witnessed during interview. It is to be noted that (the mother’s) concerns about either the children’s current exposure to risk or their poor behaviour has a lengthy trajectory and, whether it was acting out behaviour or failing to wash regularly, (both children’s) behaviour was developed and supported, under (the mother’s) watch. (The mother) maybe the soft and loving person she described, but this does not preclude her from the responsibility of actively parenting her children or seeking to modify any inappropriate behaviour. It appears though that (the mother) has actually amplified the children’s anti-social traits and she has both implicitly, by her failure to act, and explicitly encouraged her children to believe they were entitled to conduct themselves inappropriately without any sense of self-regulation or boundaries to their behaviour.
[114]What reverberates through all these reports is reflected her as a concern about the quality of mind of a parent who in order to achieve their own goals is prepared to provoke chaos for their children and expose them to uncertainty, instability and risk. Such behaviour undermines the basic tenets of parental responsibility…
[115](The father) has not been excused from his complicity in the fundamental neglect of (the children). The distinguishing feature between the parents is that (the father) has undertaken an accelerated pathway to parenting. He has faced monumental challenges from the children and their mother yet he has continued to learn and to seek direction and advice. He has continued to parent despite personal cost and with little respite from challenges. His stated intention is to continue to learn to parent effectively and facilitate the development of his children.
Significantly, Ms E said:
[116]In their father’s care both children report the emergence of happiness, and express delight about the experience of having a supportive parent available to meet their needs. They speak about developing confidence, having a new awareness of their ability to direct their own behaviour and they now display some rudimentary language about themselves as becoming successful people. In their mother’s care they continue to speak of disputes and divisions between the siblings and having to deal with a picture of reality that they now consider to be founded on discrepancy and deceit. In relation to their mother the children report the re-emergence of stress, a sense of being manipulated to service their mother’s needs and a notion that they are not her priority.
[117]There is a considerable weight of evidence that suggests that the children should be relieved of the emotional and psychological burden their mother creates for them and the destructive force her advice appears to weave through their lives. This is a possible consideration for the court but the children though love their mother and they wish to maintain a connection with her, but one in which there are clear boundaries to her capacity to direct and influence their lives.
As to the future, the court’s pessimism can be understood to have come from Ms E’ statement as follows:
[120](The father) appears acutely aware that the changes noted here are but baby steps for these children and they as yet have not developed appropriate responding as a habitual pattern of behaviour. More time and effort needs to be directed to rehabilitating these children’s futures and [Mr D] appears to have played a pivotal role in supporting (the father and the children) to re-envision their life and relationship. This work needs to continue and (the father) needs to understand the need for both consistency and a continued focus on managing the children’s development. (The children) may well need to be escorted through their teenage years and constantly encouraged to consistently and patiently develop skill sets rather than expecting instant gratification, a hallmark of their childhood with their mother.
I stress again that this evidence was not tested but also that counsel for the mother made clear she did not necessarily accept many of the things that were said.
Of the children’s perception of things, Ms E said that one of the children feels unloved in general and that despite “a pattern of change” both children remain vulnerable to being undermined by their mother. The family consultant said that continued therapeutic support and diligent parenting was necessary because the children would otherwise be vulnerable to mental health issues, substance abuse and poor relationship choices. Ironically, it was the mother’s evidence that suggested that all three of those problems were still evident. The mother attached photographs to her affidavit which she said had been provided to her by friends and which included both children in sexually explicit poses, being scantily dressed and draped over boys whose ages were deceptive. It is likely therefore that a conclusion could be drawn that there was little control and certainly not a watchful eye over these children to any great degree in 2015 onwards. Somewhat disconcertingly, the mother’s material also showed social media commentary by a person who was also apparently one of the supervisors of the children in the employ of the father which indicated support for some of this behaviour.
The parties’ proposals
Counsel for the mother acknowledged that there is antipathy between the children and the mother at present but that she has a strong desire to be involved in their lives in the future. The mother did not press her application to discharge the orders of 25 October 2015 and for the children to be returned to her. Even on the untested evidence, the change of residence could not be justified.
In the context of the submissions put, an examination of the proposals of the parties needs to distinguish between the orders they have sought and the “notations” each seeks included in some way in the published orders.
The father proposed that:
· The parents have equal shared parental responsibility save for decisions relating to education and health;
· That the father have sole parental responsibility for education and health;
· The father inform the mother in writing of major long term decisions relating to education and health;
· The children live with the father;
· “The children spend time with the mother on dates and at times as agreed to between the parties and failing agreement for a period to include a meal on a Saturday or Sunday once per month”;
· The children continue to attend upon Mr D for psychological treatment for a further period of not less than 12 months with the father to meet the costs of that treatment;
· The father be authorised to provide Mr D with a copy of the family report and a copy of the orders;
· The father be permitted to travel overseas with the children providing 21 days beforehand he gives the mother itinerary;
· Each party be restrained by injunction from denigrating the other or discussing any aspect of the proceedings within the presence or hearing of the children.
In addition to those proposals, the father sought this order:
By this order, the mother is authorised to obtain from the children’s schools and treating health professionals all records, communications and alike usually provided to parents.
I have separated this order out from the other proposals on the basis that an order is intended to be a direction or edict from the court rather than an explanation. Orders are the exercise of power granted to the court. The court does not have the power to direct the school or the doctors to provide information (except perhaps by subpoena) although, as I shall discuss below, the jurisdiction to make a parenting order is extremely wide (s 65D(1) of the Family Law Act 1975 (Cth) (“the Act”)). Section 64B(2) provides that a parenting order may deal with one of a number of matters. The orders could provide for the “allocation” of parental responsibility (s 64B(2)(c)) or indeed, any aspect of parental responsibility for a child (s 64B(2)(i)). The width of that discretion was not argued in the various submissions.
In my view, the power of the court does not extend to dictating to third parties what information they should provide to a parent or how third parties should deal with parents in relation to their children. To that end, it can be seen that the father seeks an order favouring the mother being able to obtain information.
Section 61C(1) of the Act provides that each of the parents has parental responsibility for a child until that child is 18 years of age and s 61B defines parental responsibility as all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Section 61C(3) provides that parental responsibility until 18 is always subject to any order of the court. The removal of parental responsibility as contemplated here, does not remove the entitlement of the parent to information unless it so specifically provides. Leaving aside any argument about contractual arrangements as between a parent and a school, a parent who is removed from the decision making process would still have the right to access to information unless the court specifically made an injunction precluding the parent from attending the school, contacting teachers or accessing such information as may be of benefit to the child.
The appropriate order about schooling and health is that to the extent that it is necessary to say so, the person who has the contractual obligations with the school, authorises them (and the relevant medical practitioners) to answer such questions as the mother may need answered. If she does not comply with the school (or the doctors) requirements in relation to how that communication occurs, the principal of the school (or the doctor) has the right to challenge the father’s authorisation. Thus, in my view, the “authorisation” by the order is not appropriate or proper but to the extent that the father does not comply with his responsibility, the mother can seek an order by way of a mandatory injunction requiring him to cooperate.
The Independent Children’s Lawyer supported the father’s position.
The father then sought that the orders he proposed be endorsed with the following notations:
A.With respect to the time the children spend with the mother, the parents agree that they will consult with the children and Mr D;
B.For the time the children spend with the mother, the father will meet all reasonable travel costs including accommodation…and air tickets…and provide to the children funds appropriate to meet all their incidental expenses including meals and entertainment costs.
Notation “A” has to be read in conjunction with the father’s proposed order shown in the dot points above in relation to the mother’s time with the children. It will be immediately apparent that the word “agreed” or “agree” appears regularly.
The father seeks an order that the mother have time with the children but then wants control of it save that in the event of no agreement, there is a default provision which is undefined as to duration but it is to include a meal on a Saturday or a Sunday once per month. This particular concept has to be seen in the context of what the mother is proposing and as such, there is little point in making an order for a default position with which the mother will not agree. Her position, as can be seen below, is that the time is to be on the first weekend of each month at various times “as agreed” but she also adds the notation that it is to be “as recommended by Mr D”. There is little point in making an order with which compliance is unlikely.
If there is heated agreement that the parties will work out some arrangement, the only question is whether they can. The involvement of a third party such as Mr D has to be considered in the context of whether or not he is some form of delegate of the court who has control to decide what is good for these children.
The tyranny of distance here (Melbourne and Queensland) is one problem and the evidence would tend to suggest that contact to date since 2015 has been largely unsuccessful although not entirely. The fundamental problem revolves around the capacity of the mother to travel to Queensland. In turn, one needs to look at notation “B” above. The mother’s proposed “notation” is slightly different but the absence of clear agreement and understanding is fraught with difficulty for the prospect of any successful relationship between the mother and the children.
The mother’s proposal
In the absence of the mother on the second day of the hearing, her counsel proposed that the mother’s position was as follows:
· The mother and the father have equal shared parental responsibility save that the father have sole parental responsibility for education and health but that the father keep her informed in writing of any decisions he makes relating to those two areas of responsibility;
· That in the context of sole parental responsibility for education and health, the mother be permitted to communicate with and seek all relevant information regarding the children from their schools and doctors;
· The mother is authorised by the order to:
o Communicate with the children’s schools and treating health professionals;
o Attend upon the children’s school and treating health professionals;
o Obtain from the children’s schools and treating health professionals all records, reports and other information usually provided to parents and
o Provide a copy of the order to the children’s schools and treating health professionals.
· That the children live with the father;
· That the children spend time with the mother on the first weekend of each month on dates and at times as agreed between the parties in writing;
· The children to communicate with the mother by telephone, email and any other electronic means and the father do all things necessary to facilitate such communication.
· That the father do all things necessary to ensure that the children attend upon Mr D for treatment as recommended at the father’s expense;
· That the parties be restrained by injunction from denigrating each other in the presence or hearing of the children or;
· Showing the children are allowing them to see court documents or other documents relevant to these proceedings;
· Communicating with the other parent save in relation to matters concerning the children; and/or
· Harassing, threatening or intimidating the other parent.
The immediate focus is on the second dot point about the mother being able to show the schools and health professionals various documents so that she is authorised to not only attend schools and doctors but have information provided to her. As can be seen from the discussion earlier, the father’s position is that she can have information but the mother seeks almost unfettered access to the relevant professionals themselves. For the reasons that I have already set out above, that order is not proper and I consider it is beyond the power for the court to order those professionals to attend upon the mother or allow her to attend the relevant schools in particular. In relation to her obtaining reports, there is no dispute that she is entitled to that information by virtue of being a parent who has responsibilities save for decisions about those discrete areas specifically mentioned.
The fourth dot point shows the mother seeking an order that the children communicate. The power of the court is directed to the parents not the child and because of the undefined time and duration of any such communication, one must conclude that she intended the order to be unfettered as to such access.
In circumstances to which I shall turn below about the nature of the relationship between the father and the mother, the unsuccessful attempts at maintaining a regular relationship with the children since October 2015 and the concession that there is antipathy between the children and the mother, must mean that it would not be proper to make such an order. Forcing the relationship here is unrealistic. Ordering the father to facilitate it in circumstances where the mother believes he is endeavouring to thwart her relationship including accusing him of manipulating the children is not appropriate. Even the father concedes that there have been periods of time where he has had difficulty controlling the children. Why an order would resolve that dilemma remains uncertain. In this case, only time will tell whether there is any prospect of these children having a proper and meaningful relationship with two parents. That said, if the parties were really serious about the mother maintaining a regular relationship with the children including electronically, much of this would not be before the court.
It can be seen also by a comparison of the two proposals that the parties are in heated agreement that they should each be restrained from denigrating the other. The dispute here is in the extent to which the children should know what is going on. B is almost 16 years of age and both children have been involved in this litigation process not only by having access to documents but also having intimately discussed the nature of their respective relationships with their parents with Ms E, the family consultant. It would be folly to consider that they were not aware of the conflict between their parents in a litigation sense. Because that litigation involves not only where they live but how and particularly what sort of relationship they will have with their mother, common sense indicates that at their respective ages, they should be told what has occurred albeit they do not need to know the precise details. They should certainly not be shown court documents.
One very good reason why documents should be kept away from these children is that in respect of the mother’s affidavit, she not only deposes to what could only be described as the sexualised and aberrant behaviour of the children but also infringes their respective privacies by including salacious photographs. I am unaware of whether the children know that but if that was brought to their attention, it is hard to see how it could be helpful to the relationship with their mother.
In the circumstances, there being consent to an injunction relating to denigration, the orders should be made but not otherwise.
The mother sought the order that the father not harass, threaten or intimidate her. As I earlier mentioned, she said that she was not coming on the second day of the hearing because the father had intimidated her and she pointed to an incident in a restaurant only weeks before. Those matters have not been the subject of state family violence orders. That is a curious thing having regard to the fact that those approaches to state courts have not been a problem in the past. An order has been made and expired 18 months or so ago and as such, one wonders why the mother did not resort to that sort of enforceable order.
Whilst orders of this court are enforceable, the likelihood of intimidation arising where the parties are in close proximity of one another, is better dealt with on the spot by state police who can quell the controversy. A second reason for declining to make the order as sought by the mother lies in the inability of the court to make findings that would justify such an order.
The mother sought “notations” as I have already mentioned. It is unclear to me whether the mother has faith in Mr D to not only make recommendations that will ultimately result in her spending time with the children but more importantly, resolve the antipathy already mentioned. Mr D’s role is focussed on the children and no doubt, he would not put the children in a psychologically dangerous position if he were not satisfied that any fragility in their psychological condition would be worsened.
I have already mentioned the fact that the parties proposed orders that largely revolve around their agreement and as both wish Mr D to be involved, my view is that the court should step back from all of this and allow Mr D to do what he considers therapeutic for these children. To the extent that the mother considers the father is not cooperating (and vice versa), further applications can be made to the court which would no doubt then be based upon the evidence of Mr D.
The second “notation” sought by the mother was that the father meet the cost of business class air tickets for her, her accommodation at an agreed place, relevant transfers to and from airports and an allowance of $500 per day for her. This is not a court order but rather recognition of what she considers is appropriate and what reflects her intention in relation to developing the future relationship with the two children. I agree with the Independent Children’s Lawyer that whilst the court may note her desire, the court should not give imprimatur to such a concept as a reflection of an endorsement or its appropriateness. I agree with the Independent Children’s Lawyer that such a notation suggests that this is the expectation of the mother if she is to be involved in the lives of these children. I have noted her expectation or intention. I do not intend to include the “notations” even though the father agrees to make a contribution. I turn below to the question of why all of that is a problem in any event.
The next notation that the mother sought was that the father be in substantial attendance or that the children be in the care of an appropriately qualified child minder and that he do all things necessary to supervise the children’s social media use as well as their homework requirements being met.
On the basis that the “notation” is a reflection of an expectation or intention, it is clear that the mother wants the father involved in a proper and responsible parenting way. Her evidence as I shall turn to it below, was not tested but whether or not the court should make some order that reflects her concern because it might be in the best interests of the children, returns to the subject of whether it is proper to do so.
In this case, even if it is only a notation, the dilemma is that the mother has a limited opportunity to monitor what is going on in the children’s lives if for no other reason than she is not seeking that the children live with her any longer. Any time and communication with the children depends very much on the parties reaching agreement about a whole raft of things. In my view, the better approach is for the court to step back for the reasons I shall articulate below and allow the parties to endeavour to resolve the problem themselves failing which, either the state welfare authorities can intervene or a proper application can be made back to the court.
Finally, the mother sought a notation that for such period as the mother elects to see a psychiatrist or a psychologist (but up to three years), the cost be at the father’s expense. Again this is a “notation”. In my view, the clear inference from the evidence of Ms E is that the mother fails to see her failures as a parent in the past and to the extent that her conduct is attributable to some psychological disorder or some mental illness, she should obtain treatment and it is in the interests of the children that it occur sooner rather than later. The current impasse about the financial matters creates a dilemma for the parties but particularly the mother as she has insufficient finances to undertake anything more than (presumably) a public health system exercise. Whilst it seems that the notation was directed to some endorsement by the court that the father should contribute in some way to her rehabilitation (if that is what it is), this is an issue for the parties themselves failing which, if it can be shown to have been something associated with the welfare of the children, the mother can make a further application at the appropriate time if the proper link is shown.
The legal issues
The power of the court to make a parenting order lies in s 65D(1) which provides:
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Note:Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make a parenting order.
The emphasis is placed on the word “proper”. Proper means appropriate or conforming to a fitting standard. In the sense of the exercise of power by a court, it must mean appropriate to the particular case, or in this case, for the particular children.
The word “proper” was considered by the Full Court in VR & RR (2002) FLC 93-099 where at 88,940, the court said:
[29]Whilst the word “proper” connotes a very wide area of discretion, in our view it is clear from the legislative scheme that any intervention by the court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the court is of the view that the welfare of the child will be clearly advanced by that order being made.
[30]In our view it is not the role of the court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.
In VR & RR, the issue was about vacation contact in the context of significant air travel and where the father sought that the contact be exercised overseas without restriction but the order required the contact to be in Australia or New Zealand. Albeit the context here is entirely different to that simple dispute, the point is still made about how much interference the court should have in the lives of these children. That question also raised the issue of why a state welfare department had not intervened and the answer seems to be that whilst they were cognisant of the issues, they were also aware of this court’s involvement.
In U v U [2002] HCA 36; (2002) 211 CLR 238 Gummow and Callinan JJ (with the apparent support of the other members of the court) poignantly said:
[70]There is, in our opinion, an air of artificiality about the appellant's argument …... No doubt there will be cases, perhaps many cases, in which a court can and should adopt, with few changes or additions, the arrangements proposed by one of the parties for the future of the child or children whose welfare is paramount, in preference to the other. As was said in AMS v AIF:
"It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties." (footnote omitted)
There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed.
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[72]… The parties in cases concerning the welfare of children do not define the issues. It is Div 4 (ss 63A-63H) of Pt VII, headed "Parenting plans", which does that. For example parties may not even make or vary an enforceable parenting plan without the approval, that is to say the intervention, of the Court (ss 63B-63H).
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[74]That the Court's role may go beyond the mere choice between two or more proposals by the parties, appears expressly, for example, from the provisions of s 68L which empower the Court to make an order for separate representation of a child on the Court's own initiative. Other sections of the Family Law Act which also, if in some instances rather broadly, define the issues, should be noted.
….
[80]We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests. (citations omitted and emphasis by underlining is mine)
It is a reference to AMS v AIF (1999) 199 CLR 160 that is most concerning here. How can a court construct a framework and environment for “the bringing up” of these children. Orders have failed and both parents’ capacities as parents have been criticised. It is difficult to see how the mother’s proposals will advance the welfare of these children. It is difficult to see how any agreement will be reached between the parents.
What evidence is there?
In 2015, orders were made to regulate the lives of the children. On the evidence of both parties, those orders have been unsuccessful. Thus, any of the orders of the nature proposed above have to be considered in the context of whether there is a prospect of them being successful.
There is, unashamedly, no respect or trust between the parents and that makes communication difficult particularly where the court is asked to make a nebulous order that is underpinned by agreement. The lack of respect and trust can be seen in relation to the assertions that each makes against the other. The best synopsis of that evidence can be seen through the family report of Ms E. It is not a question of whether or not the assertions of the parents (or for that matter the children) are true nor indeed whether any recommendations made by Ms E have a proper foundation but rather, to give some insight as to the views that the parents hold about each other for the purposes of determining whether orders will work.
Ms E recorded the mother as saying:
· The children had lost their youth in Queensland as a result of the residence being changed in October 2015 and her relationships with the children had become strained because they had not been living with her as it had taken 1½ years to get to this point [26];
· The father was a “deceitful manipulator who lied and ‘coached’ the children and that the orders of the court of October 2015 were not based on ‘genuine claims of risk’ but rather based on lies told by [C]” [28];
· Subsequent to the orders of October 2015, she was not allowed to get involved with the children pointing for example to a claim that B made that she had been sexually assaulted in May 2016 and that the father endeavoured to cover it up [29];
· The children did not do much with their father but had been cared for by employees but there had been approximately six of those who left the father because “they couldn’t stand him” [32];
· The father coached [C] to hate her and that he did not want her to have a relationship with the children. He was denigrating her to the children and poisoning the children against her [33];
· The father had provided the children with inappropriate material causing them to become distressed and created a rift with her [34];
· The children were effectively uncontrolled in Queensland whereas she was the stricter parent [34];
· The father did not have the capacity to care for the children because he was a single parent but that (by implication) he had acted improperly by placing cameras in all of the rooms of the home [36];
· [B] was not attached to her father but indeed to her boyfriend about whom she expressed disapproval [37]; and
· The father told people that she lost the children because she tested positive for drugs [43].
Ms E observed that some of these allegations were indeed contradicted by the children themselves. But if these things were true, it raises questions of the pointlessness of court intervention on the basis that:
(a)the orders in October 2015 were supposed to fix a parenting problem and that has not happened; and
(b)even if the court made some orders to overcome the allegations made by the mother, the father would manipulate the orders anyway.
It is important to immediately reaffirm that this evidence was never tested.
It is not necessary to be as elaborate about the father’s descriptions of the situation but it is important to show, in a similar vein to that of the mother, how orders have failed or would seem to have little prospect of success in the future.
Apart from denying the mother’s allegations, the father told Ms E a number of things which Ms E said mirrored the views of the children. In so far as one of the children alleged that the father had acted in a sexually inappropriate way, that issue (according to the father) was resolved by the child admitting that her mother and aunt “put her up to it”.
Ms E went on to put the father’s perception as follows:
· The behaviour of the children described as disruptive, abusive, anti-authoritarian and acting out was the “start of the sabotage” by the mother [50];
· The father said he had adjusted to caring for the children within his working life including working from home and restricting his travel [51];
· The mother had created the problem at the time that he took over and that he inherited “a mess” and that he was doing his best. He described the mother’s negligence in relation to the children as “evil”. He said that he thought that the mother was doing a good job but he realised that she lied consistently and even to the point of providing fake report cards. He said that he found that the children had been exposed to negative comments from the mother including that he was violent and abusive [55];
· The mother’s level of alcohol consumption was a concern and that she had “substance abuse issues” including the regular use of cocaine [56];
· The children did not want to be “pulled back into their former life with their mother” and until the mother modified her behaviour, the children would resist of limit their time with her [60]; and
· The mother had no insight into her behaviour and he was worried she had no capacity to comprehend the ramifications of her conduct including that she continues to emotionally blackmail the children offering them inducements such as by turning a blind eye to what they were doing [62].
It is immediately apparent from reading the evidence of Ms E that she saw the father as not holding the children accountable for any of their own conduct but she also noted that despite the allegations that the father made about the mother’s drug usage, the mother denied those allegations.
With all of that said however, if the allegations of the father were true, the mother’s role should be limited in respect of the future care of these children. A fair reading of Ms E’s evidence would indicate that she was not quite so excited about the father’s parenting either. It is comforting that the critical issues of decisions about health and education are no longer contentious. The remaining parental responsibility issues of a major long term nature fall to be shared. Again, the word “proper” is contextually important. Bearing in mind the parties’ positions as reported to Ms E, could they seriously be expected to communicate with each other about any such decision making issues. Section 65DAC provides:
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
It ought to be apparent from not just the proposals of the parties but also some of the assertions each has made that it is unsurprising that I would find it highly unlikely that there will be any genuine approach by these parents towards each other to solve any issues associated with their children. I am particularly disconcerted by the mother’s absence on the last day of the hearing because that reaffirms that she maintains the position she stated to Ms E.
Each party however still maintains that the orders they propose should be made.
The first question therefore is should an order be made. That should only be answered in the positive if the court is satisfied that it is proper. Before determining that however, the court must be satisfied that it is in the best interests of the children for such an order to be made. Section 60CC mandates that the matters to be considered by the court are there set out but it is now well settled that the extent of the consideration of those statutory matters depends upon the particular circumstances of the case including the nature and breadth of the issues to be determined (see Doherty & Doherty [2016] FamCAFC 182 at 65).
An examination of the considerations in s 60CC enables the following findings to be made. Whilst there is the benefit to the children in having a meaningful relationship with both parents, it is unclear just what sort of a relationship each child has with either parent. The relationship of the parent with their mother is flawed by antipathy. The relationship with their father is more akin to a parent who provides the necessary physical means of support but he relies on other people to assist him including nannies. Many of the complaints of the mother including sexualised behaviour, consumption of alcohol, inappropriate social media usage and attendance with inappropriate people at licensed venues, would seem to have occurred on the father’s watch. It is difficult therefore to determine whether these children benefit from having a meaningful relationship with either of the parents.
A further primary consideration is the need to protect the children from both physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. These children have been subjected to watching their parents misbehave. It is part of the mother’s case that the father intimidates her and she has made allegations of assault against him which are denied. The children’s perception as described to Ms E was unflattering of either parent.
Section 60CC(3) also has some other considerations including the views of the children. They do not want to return to live with their mother in Melbourne but appear to have developed a rapport with Mr D and in very recent days, have seen a future. They have expressed unpleasant things about their mother to Ms E and there is the acknowledgement by the mother’s counsel that there is antipathy. Their views about any relationship with their mother must be treated cautiously.
Section 60CC(3) requires the court to look at the nature of the relationship of the children with each of the parents and that is covered by reference to the matters above.
In respect of a consideration of the extent to which the parents have failed to fulfil their obligations to maintain these children, there can be no doubt that with the affluence of the father, their physical needs are being met.
There are practical difficulties in carrying out any form of a relationship between mother and children here bearing in mind the substantial distance but there are other problems too. The mother espouses she has no finances and in part, her true financial position is in a state of flux. It may be, depending upon the determination as to jurisdiction, she may not be able to seek any relief. Undoubtedly therefore, there are practical difficulties in her attending to spend time with the children even with the offer of financial assistance from the father because she has to live out of a hotel room for the limited period of time that she attends. It is quite clear that the children resist spending time with her in Melbourne.
One significant consideration for the court is an assessment of the capacity of each of the parties to provide for the needs of the children including their emotional and intellectual needs. If the matters to which I have referred above as described to Ms E are true, a report card for both parents is not good. The same must be said of the attitude of the parents in terms of their responsibilities as parents.
Family violence is a serious issue in the community and it has been raised by the mother but I am not in a position to make any findings one way or the other. As there was a consensus in relation to the question of parental responsibility, it is not necessary for me to consider s 61DA and s 65DAA because not all parental responsibility issues of a major long term nature are to be dealt with by the parents jointly.
Importantly, notwithstanding what on the face of it is an offer of goodwill to try and assist the future resolution, I could have no confidence that the parents have any intention of facilitating a meaningful relationship.
It is also important to observe that the parties have reached agreement in relation to issues of health and in respect of B who is 16 years of age, one wonders whether that is necessary. Notwithstanding that B is a child who needs some guidance (according to Ms E) the prospect of parental consultation is pointless. In any event, as she approaches adulthood, there is clearly a conflict between her capacity to make her own decisions about her health (see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 and Secretary, Department of Health and Community Services v JWB and SMV (1992) 175 CLR 218) and parental responsibility. C is a different child and still hopefully capable of some guidance but on the basis of the mother’s own evidence, particularly in relation to the absence of the father, that might be difficult.
Contact orders?
Trying to regulate or encourage time and communication so that a relationship can be fostered “as agreed” is unrealistic but importantly, unnecessary. There is a temptation to put something into an order which encourages parents to make an effort to sort this out but surely that is what the court did in October 2015. As late as May 2017, each of the parents was still accusing the other of sabotaging not just the relationship between them and the children but significantly putting the children’s lives and health at risk.
If there is to be agreement, one wonders what the point of orders will be. I refer back to the reference earlier to U v U (supra).
Section 63B is in Division 4 of Part VII of the Act relating to “parenting plans”. The main reason why parents might want an order rather than an agreed plan is the absence of trust but if that was the case, the court would need to be satisfied that its orders were proper. Section 63B provides:
The parents of a child are encouraged:
(a) to agree about matters concerning the child; and
(b)to take responsibility for their parenting arrangements and for resolving parental conflict; and
(c)to use the legal system as a last resort rather than a first resort; and
(d)to minimise the possibility of present and future conflict by using or reaching an agreement; and
(e)in reaching their agreement, to regard the best interests of the child as the paramount consideration.
Note: Parents are encouraged to reach an informal agreement between themselves about matters concerning their children by entering into a parenting plan. Parents who seek enforceable arrangements require court orders. These can be obtained by consent.
Whilst the parents are encouraged by the law to agree upon matters and they have said they will make that endeavour, I have little confidence that things will change.
The appropriate, and therefore proper course of action for the court, is to say to the parties that their agreement (or lack of carrying out any agreement) may be the foundation for future proceedings if there is a repetition of what occurred between October 2015 and May 2017.
I find in the circumstances that an order for equal shared parental responsibility should be made only because of the fact that the parties want to formally reaffirm what the law already provides but which in reality, they have not fulfilled. As there is consensus in relation to health and education decisions, the court should reflect that in an order. It is a matter entirely for the father as to whether or not he communicates those matters to the mother but if he fails to do so, leaving aside the question of any order, the mother will not be in a position to know what is happening in the lives of the children. That goes beyond courtesy, as she is entitled to know at least until the children turn 18, what is happening to their health and education.
There is no doubt that the children have developed some form of relationship with Mr D and importantly, he also provides guidance to the father. There is no suggestion that the father will withdraw from that arrangement but because both parties want that enshrined for the protection of the children, I think the order should be made.
Mr D should not only have a copy of the family report of Ms E to understand the allegations and the fact that he was the subject of discussion referred to but also a copy of these reasons to show how concerned the court is that whatever path these children are currently on, it must improve.
The father also sought an order under s 65Y of the Act that he be permitted to leave Australia on holidays with the children. Both parties have signed a passport application and there seems to me to be no reason why these children should not enjoy some of the benefits of the affluence that their father has. There is no suggestion that they would go with their mother overseas anyway. There is also no suggestion that they would be placed in a situation of risk in a country where they would not be returned to Australia. On that basis, an order under s 65Y should be made to ensure that the mother does not thwart those plans.
There should also be orders made in relation to the non-denigration as I have described only from the point of view of indicating that if the parties were seriously concerned about the welfare of the children, they would not speak ill of each other but work with Mr D to endeavour to show themselves as responsible parents to their own children.
I decline to make any specific orders in relation to the mother’s time with the children but will give her liberty to apply in the event that there is a complete breakdown of any negotiations towards an agreement. That will overcome the problems of what is sometimes described as the “rule in Rice v Asplund (1979) FLC 90-725”).
For the reasons I have outlined, I decline to make any notations on the orders at all. Those notations or proposed agreements of the parties can be seen reflected in these reasons.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 June 2017.
Associate:
Date: 26 June 2017
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