Hale and Hale (No.2)
[2009] FMCAfam 873
•21 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALE & HALE (No.2) | [2009] FMCAfam 873 |
| FAMILY LAW – Final arrangements for parenting of children aged 12 and 9 – children currently live in Adelaide with the mother – father lives in country NSW – parties separated in 2002 – orders made in 2004 permitting children to relocate from Adelaide and inaugurating regime for children to spend time with father in NSW during school holidays – arrangements in respect of oldest child broke down in 2007 – mother alleges child unwilling to spend time with father due to concerns about his household – father asserts mother has consistently undermined the children’s level of relationship with him – father asserts only means by which children will have a meaningful relationship with him is if there is a change in residence arrangements – father asserts mother intent on alienating children from him – mother asserts children well settled in Adelaide – best interests – views of children – insight into parental obligations – effect of change of circumstances – possible separation of siblings – equal shared parental responsibility – duty to exchange information – implication of parties’ compromised capacity to communicate. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61B; 61DA; 65DAA; 65DAC; 65DAE; 68LA |
| Hale & Hale CAF1638 of 2002 C & C [2004] Fam CA 708 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MS HALE |
| Respondent: | MR HALE |
| File Number: | ADC 3419 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 6, 7, 8, 28 & 29 May; 29 June & 3 July 2009 |
| Date of Last Submission: | 3 July 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 21 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kane |
| Solicitors for the Applicant: | Erlington Boardman Allport |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Lessli Strong & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Boehm |
| Solicitors for the Independent Children’s Lawyer : | Legal Services Commission |
ORDERS
The parties have equal shared parental responsibility for the children [X] born in 1996, [Y] and [Z] both born in 1999 (hereinafter referred to as “the children”).
The parties are to consult with one another about major long term issues pertaining to the children and are required to make a genuine effort to come to a joint decision about such matters, which include but are not limited to educational and medical issues pertaining to the children; cultural and religious issues pertaining to the children; the changing of the children’s names; changing the school enrolments of any of the children; and the relocation of the residence of the children so as to impinge upon the existing parenting arrangements for the children.
The children live with the mother.
The father spend time with the children as follows:
(a)So far as [Z] and [Y] are concerned for the whole of the three shorter South Australian school holiday in each year term holidays and for one half of the long end of year South Australian school holiday being the first half in each even ending year and the second half in each odd ending year (unless the parents agree otherwise);
(b)So far as [Z] and [Y] are concerned at any reasonable time when the father visits Adelaide subject to him giving two weeks notice of his visit to the mother;
(c)So far as [X] is concerned at any of the times during which [Z] and [Y] are spending time with their father subject to her wishes and upon completion of New South Wales Police investigations regarding allegations raised by her in respect of conduct occurring in her father’s household; and
(d)At any other times and on any other conditions as agreed between the parties from time to time.
The father communicate with the [Z] and [Y] by telephone each Sunday and Tuesday at 7:30pm (South Australian time) with the father to place the call and the mother to ensure that the children are available to receive the call.
The father communicate with the child [X] by telephone at times agreed between the father and [X] and subject to her wishes.
The father may communicate with the children at all reasonable times in writing by letter or email.
That the mother undertake counselling with an approved counselling agency such as Anglicare, Centrecare or Relationships Australia or with a registered Psychologist or Psychiatrist with an aim to address and fully understand the impact of her behaviour, her negative attitude and her negative influence upon the children and directed towards their father and his partner Ms H and her attempts to undermine and sabotage the children continuing any meaningful and ongoing relationship with their father and for the mother to be provided with alternate strategies to better support and promote the children’s continuing relationship with their father and further for the mother to be provided with alternate strategies to assist and redirect the child [X] with respect to her negative attitude towards and her limited relationship with her father.
That the mother undertake such counselling forthwith and provide written notification to the father and the ICL as to the name of the person with whom she is undertaking counselling.
That the mother attend such appointments with the counsellor as may be recommended by the counsellor from time to time.
That the said children [Y] and [Z] undertake confidential and individual counselling to provide support for the children with respect to maintaining a long distance relationship with their father and to provide the children with strategies to deal with any difficulties they may experience in both parents’ households, the high level of conflict between their parent and specifically their mother and their sister [X]’s negative attitude and influence over them with respect to their father and their father’s household and with an aim to promote the children’s ongoing and meaningful relationship with their father.
That the costs of the individual and confidential counselling for the said children [Y] and [Z] be shared equally between the parties.
That each parent shall be at liberty to and encourage to keep in regular contact with any counsellor appointed to assist the children and to provide wherever possible information in relation to living arrangements for the said children without compromising the confidential and individual nature of the said counselling sessions.
That the appointment of the Independent Children's Lawyer (the ICL) be discharged following the expiration of one year from the date of judgment in this matter.
That the ICL be at liberty to consult with the counsellor regarding progress with the mother’s counselling.
That the ICL provide to the mother’s counsellor a copy of the Court’s judgment in this matter and associated orders.
That each party pay one half of the additional costs of the ICL (as advised by the ICL in writing) no later than 28 days following judgment in the matter.
IT IS NOTED that publication of this judgment under the pseudonym Hale & Hale (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3419 of 2007
| MS HALE |
Applicant
And
| MR HALE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a complicated case with a complicated history. Ms Hale “the mother” and Mr Hale “the father” are the parents of [X] in1996 and twins, [Y] and [Z] born in 1999.[1]
[1] The parties married in November of 1989. They have been separated since March of 2002 and are long divorced. In these circumstances the convention of referring to them as husband and wife in these reasons for judgment seems inappropriate.
During their marriage, of around twelve years, the parties lived on the father’s farming property near [D], in South Eastern New South Wales. After their separation, in early 2002, [X], [Y] and [Z] lived predominantly with their mother, who remained in [D].
This was the background to the first major episode of litigation between the parties. The father wished the children to live mainly with him. Later, he argued that there should be a shared care arrangement for the children, with [X], [Y] and [Z] moving between their parents’ respective homes on a week about basis. Necessarily, such an arrangement would have required the mother to remain living in the vicinity of [D].
The mother’s position was that the children should remain living predominantly in her care, as the children were primarily attached to her. Of great controversy, so far as Mr Hale was concerned, was
Ms Hale’s wish to be able to move with the children from [D] to Adelaide.
After some interim proceedings in the Federal Magistrates Court in Canberra, the issues regarding final arrangements for the care of the three children and the mother’s “relocation” application came before Faulks J in the Family Court at Canberra in May of 2004.
By this stage, for a period of around two years, [X], [Y] and [Z] had been living mainly with their mother and seeing their father on alternate weekends and on each Wednesday afternoon. This arrangement being the result of the interim proceedings in the Federal Magistrates Court.
Associated with the parties’ applications regarding issues to do with the care of the children were applications pertaining to the division of matrimonial property, particularly the disposition of the farming property on which the parties and the children had lived prior to separation.
It was Mr Hale’s position that he had brought the farming property into the marriage, at its inception in 2002 and therefore his overall contributions were superior to those of Ms Hale. He wished to retain the properties concerned, as they provided him with his means of livelihood.
Given his longstanding and close connections to [D], both in economic and personal terms, Mr Hale had no intention of moving away from the district. In fact, it was his case that it was not practically possible for him to do so because he was tied to the land in [D].
Ms Hale’s position was that she was unhappy and felt isolated in [D], where she was a long way from her family, who lived in the main in Adelaide. Unlike Mr Hale, she had not grown up in [D]. Rather she had spent her childhood in Adelaide.
Both the property and children’s aspects of the proceedings were bitterly contested. Cases involving the relocation of children invariably are, as they provide no obvious channels for compromise. Whatever the outcome, one party will feel hard done by. At the stage of the first trial, both parties’ positions can be easily summarised.
The mother’s case was that she was the obvious candidate to be the children’s main custodian, particularly as this had been what had occurred since separation. It was her case that she was anxious and depressed living in [D] and these feelings had the potential to impact negatively upon her ability to parent [X], [Y] and [Z] to the maximum extent of her capacity. Essentially, if she continued to be unhappy, she would be a compromised parent.
In these circumstances, she contended that it would be in [X], [Y] and [Z]’s best interests if they continued to live with her and she was able to move with them to Adelaide, where she believed she would be much happier and personally supported. Ms Hale gave evidence, at the trial, that she would support and encourage the children to maintain a relationship with their father, in the event of relocation. The father was and remains deeply sceptical about this evidence.
It was Mr Hale’s case that, if the children moved to live away from [D], it would inevitably result in the diminution of the children’s paternal relationships, to their ultimate emotional detriment. He was fearful that these relationships could not be sustained across the thousand or so kilometres between Adelaide and [D], particularly given that he did not believe that Ms Hale would be inclined to support them.
At the time of the first trial, it was common ground between the parties that they did not communicate well, if at all. It was also the mother’s case that the father was an incompetent and negligent parent, who was incapable of properly supervising or attending to the children. Factors, which she asserted favoured the outcome preferred by her.
The father refuted any suggestion that he was a compromised parent or that he had issues to do with the abuse of alcohol. He was fearful that the mother was likely to have concocted her concerns about him, both to secure her own ends and service her own emotional needs. The picture he painted of the mother was of a highly manipulative person.
As is commonly the case in matters involving relocation, Faulks J had the benefit of receiving expert testimony from a psychiatrist, Dr Rikard-Bell, who had prepared a family report for the court, after interviewing each of the parties and observing them with the children concerned.
Dr Rikard-Bell was well aware of the dilemma which the case presented. He was in favour of the children continuing to reside primarily with their mother because of the quality of emotional nurture which Ms Hale could offer to [X], [Y] and [Z]. In his view, this was important given the tender years of the children at the time.
However, Dr Rikard-Bell was also cognisant of the fact that the mother’s proposed relocation would inevitably dilute the relationship between father and children, particularly as he believed Ms Hale had a propensity to be over protective of the children and thus unduly suspicious of their father.
In these circumstances, Dr Rikard-Bell recommended that [X], [Y] and [Z] remain living with their mother, but Ms Hale be restrained from moving out of the [D] district, so that the children could see their father regularly, on weekends and during the school week.
In his report, Dr Rikard-Bell wrote as follows:
“Should Ms Hale and the children remain living in [D] I have formed the view that Ms Hale may feel more and more isolated and alienated and that there was a risk that she could become more depressed. It would appear that she has lost some of her standing with the local community following the breakdown of the marriage. The advantage for the children would be that they remain able to have close contact with both parents. Ms Hale would prefer to return to Adelaide where she would have more family support. However, she has lived away from Adelaide for many years. Her mother is elderly. She has lived a separate life from her siblings for many years.
Should Ms Hale and the children move to Adelaide, I believe that the children would continue to develop normally as they would if they stayed living in [D]. Ms Hale would have more support from her family and would no longer be a victim of local community circumstances, as she appears to be in [D]. However, the children would be isolated from their father and it would be extremely difficult for the children to see their father on a regular basis. They would be restricted in seeing their father for block periods of time up to several times per year.
The dilemma in this case, is that both parents have a great deal to offer all the children. Both parents are competent and caring parents. The children deserve the opportunity to grow up having a close relationship with both parents. The mother’s alienation and isolation in the local community is extremely distressing and if she were to become depressed it has the potential to adversely affect the children. The father runs a sheep and cattle property and works long hours.
I recommend that the children remain in residence with the mother but they also, remain in the vicinity of the father. I do believe it is important that the children be able to continue having regular contact with the father on a fortnightly basis for the weekend and possibly one afternoon during the week. Their mother appears to have more to offer as a parent from an emotional point of view at their ages. She has a much wider range of emotional resources. The father’s role is restricted and narrow in his emotional repertoire. The mother could at times, run the risk of being overly protective and overly focused on the children. However, I formed the view that she was more in tune with the children’s needs than the father. However, the father still loves the children and his input into the children complements the mother very well.”[2]
[2] See Family Report of Dr Rikard-Bell dated 3 May 2004 being exhibit C100 to father’s affidavit filed 26 September 2007 at pages 10-11
Dr Rikard-Bell’s primary recommendation was highly influenced by his concern that the mother’s proposed move to Adelaide would inevitably result in the children either losing their relationship with their father or it becoming severely compromised. As such, he was not in favour of the children’s relocation, notwithstanding his concerns about the mother’s lack of support and general unhappiness in [D].
If the children moved to Adelaide, Dr Rikard-Bell, in May of 2004 believed that “gradually they would become distanced from their father and their relationship would be diluted severely.” As such, any relocation would come “at great cost to the children and the father.”[3]
[3] Ibid at page 12
Ultimately, Faulks J considered that the children’s interests would be best served if they lived with their mother in Adelaide. From the father’s perspective, what both he and Dr Rikard-Bell feared has come to pass.
It is his position that, as a result of the combination of the distance involved and the mother’s poor motivation, [X] is now alienated from him; [Z] is in the process of being alienated from him; and it is only a matter of time before [Y], in turn, becomes embroiled in this process.
This is the background to the second major series of litigation between the parties. From Mr Hale’s point of view, the court now needs to take urgent action to ensure that all three children, but particularly the twins, have the benefit of having a meaningful relationship with him, as they grow to maturity.
He does not believe that this will occur if the children continue to live in Adelaide. As such, he contends that the court needs to take the dramatic action of changing the children’s principle place of residence from the mother’s home in Adelaide to his home in [D], notwithstanding the short term disruption this will cause the children.
The mother, ostensibly at least, accepts that she has not been as effective as she might have been in ensuring the children maintain their respective relationships with the father and his family. In the course of the second half of these proceedings, after she has been legally represented, Ms Hale has distanced herself from previous stringent criticisms she has made of the father and his household.
It is now Ms Hale’s position that, with some professional assistance – both for herself and the children – she will do better in ensuring that the children travel to [D] for school holidays with their father. As such, she contends it would be too draconian and extreme a step to remove the children from her home and the environment of school and friends, where they are happy, secure and well settled.
The mother and father are not the only parties to these proceedings. On 15 August 2008, I ordered that the three children be independently represented in these proceedings. Their representative is Ms Reed, an experienced family lawyer, employed by the Legal Services Commission of South Australia. She has briefed a barrister, Mr Boehm to appear on [X], [Y] and [Z]’s behalf.
The law requires Ms Reed and Mr Boehm to formulate a position, based on the evidence available to them, which they think will be in the children’s best interests.[4] In his submissions, Mr Boehm advocates that the children continue to live with their mother and the twins spend time with their father in accordance with the orders of Faulks J. So far as [X] is concerned, Mr Boehm proposes that she should spend time with her father in accordance with her wishes.
[4] See Family Law Act at section 68LA
However, Ms Reed would not want to be discharged once orders to this effect have been made. Rather, she would want to see how the mother and children have responded to a process of counselling which she recommends be imposed and whether there has been some improvement in the children’s level of relationship with their father as a result of it.
Accordingly, the independent children’s lawyer is concerned that it may be premature to remove [Y] and [Z] from their mother’s household, particularly because it would be an extreme outcome to separate the twins from their older sibling and may result in [X] being irremediably alienated from her father. As such, the independent children’s lawyer does not endorse the outcome sought by the father, which would involve the alteration of a longstanding arrangement for the children’s care.
However, the independent children’s lawyer finds much of which to be critical in the mother’s behaviour to this stage, particularly Ms Hale’s inability to support the children spending time with their father. As such, if there is no improvement in the situation, Ms Reed wants to be able to revisit the case so that she can advocate to the court that it needs to take a more robust approach, so far as ensuring the children have the prerequisite level of meaning in their relationship with their father.
Ms Hale began the final hearing acting on her own behalf. She ends it being legally represented. It is her case that the first section of the hearing had a sobering effect on her and she has now, with the assistance of her lawyers, seen the error of her ways. Essentially, it is her case that she is fundamentally capable of changing her attitude. As such, she is content to abide the orders proposed by the independent children’s lawyer.
Mr Hale doubts the sincerity of any change of heart on Ms Hale’s part. He doubts that “the leopard can change its spots”. To use the words of his counsel, Ms Lewis “just as the mother can turn it on [her support of children spending time with the father] so she can just as easily turn it off and she will.” Essentially, it is Mr Hale’s case that it is too late to give the mother another chance, so far as ensuring that [Y] and [Z], at least, have the benefit of knowing and loving their father.
No doubt, Ms Reed’s position has been significantly influenced by a series of family assessments prepared by Dr Jeffrey Bollard, a clinical psychologist, in November of 2007; December of 2008; and April of 2009. Dr Bollard first became involved with the family when [X] began to decline to visit her father, after the conclusion of the January 2007 school holiday.
[X] has not spent a holiday with her father since January of 2007. [Z] followed suit just before the December 2008 holiday, declining to get on a plane leaving Adelaide for Canberra. Only [Y] has been attending to spend school holidays with her father, notwithstanding the fact that she was bitten by a snake, at her father’s home, in January of 2009 and was very seriously ill as a result. This misfortune brought the parties’ relationship with one another to a new low.
In this context, Dr Bollard was well aware of a process being in play of the children individually turning against their father over time. This was because in his initial interview with the twins, both were highly enthusiastic about life at the farm in [D].
Dr Bollard thought the mechanics of this process to be complex. He did not rule out the possibility of [X] being the mother’s proxy in it, but certainly he considered that [X], as the twins’ older sister, would herself be highly influential in shaping [Y] and [Z]’s attitude towards their father and what would happen in the period leading up to school holidays.
As such, Dr Bollard was highly concerned at the possibility that [Y] was likely to be left in an untenable position, as the only member of the mother’s household who was enthusiastic about the father and who wanted to spend time with him in [D], in the face of opposition from her two sisters and quite possibly her mother.
Notwithstanding his view of this dynamic and his concerns that it would maintain its momentum and become a self fulfilling prophecy, so far as each child becoming permanently alienated from her father, Dr Bollard has consistently maintained that the children’s best interests will be maintained if they continue to live with their mother. It is his view that each of the children has a close and loving emotional bond with their mother, who provides appropriately for their developmental needs. In addition, it is Dr Bollard’s view that all three children clearly want to live with their mother.
As such, Dr Bollard recommends that all three children continue to remain living with their mother but “that all efforts be made to foster regular contact with their father.”[5] Mr Hale believes Dr Bollard’s recommendation can only be accepted as valid if the children, particularly [Y] and [Z], retain a viable relationship with him.
[5] See Family Assessment report of Dr Bollard dated 28 April 2009 at page 21
If they do not, the premise on which Dr Bollard’s principle recommendation rests will be absent, namely the children should live with their mother only if they are able to spend meaningful time with their father.
These proceedings are directed towards resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their children should live, it is the best interests of the children concerned which are paramount.[6]
[6] See Family Law Act at section 60CA
Background
The father was born in 1961. He is [in the Agricultural Industry] and has been since he left school at seventeen years of age. He has always been on the land in the [D] area, where he has strong connections.
The mother was born in Adelaide in 1961. Her father was Hungarian. He died in 1993. Her mother continues to live in Adelaide. She has four brothers and sisters, who also live in Adelaide.
In the past, Ms Hale has been employed as a [omitted] in Western Australia and the Northern Territory. However, she has not been part of the paid workforce for many years. She has been previously married but has no other children apart from [X], [Y] and [Z].
The parties met because the mother’s first husband was related to the father’s family. They met in the [D] area and married at [C], New South Wales in November 1989. There is no dispute between them that they finally separated in March of 2002.
During the period of their marriage, they lived on the father’s property near [D]. After separation, the mother and children lived in the former family home on the property, whilst the father lived with his mother, before renting his own accommodation nearby.
On 20 May 2002, the Federal Magistrates Court at Canberra ordered, on an interim basis, that the children should continue to live with their mother and spend time with their father on alternate weekends from the conclusion of school on Friday until the commencement of school the following Monday, as well as on each Wednesday from the conclusion of school until 6:30pm, as well as for half of each school holiday period.
The parties’ competing applications were transferred to the Family Court at Canberra and came on for hearing before Faulks J on 25 and 26 May 2004 with judgment being delivered on 27 May 2004. Dr Rikard-Bell’s report was released on 3 May 2004.
The father’s position, before Faulks J, was that the children should live week about with each of their parents and in order to secure this outcome the mother should be restrained from moving her place of residence from outside of a radius of 70 kilometres from Mr Hale’s farming property in [D].
The mother’s position was that she sought permission from the court to relocate with the children to Adelaide and for them to spend periods of each school holiday with their father in [D] and remain in touch with him through a number of supplementary methods during other periods.
As previously indicated, Dr Rikard-Bell recommended that the children spend more frequent periods of time with their father than would be available during school holidays alone. He was particularly concerned at the high probability of the children’s strong relationship with their father being diluted. Necessarily this recommendation involved the mother being prevented from moving the children outside of the [D] district.
Faulks J accepted that the mother was then a more significant source of emotional support for the children than was the father. However, His Honour specifically rejected the proposition that Mr Hale did not have the capacity to provide for the children’s physical needs or that he was in some way deficient in his ability to supervise or care for them.
In particular, Faulks J characterised the mother’s complaints about the father’s alleged deficits in this area as “bordering on the obsessive”[7]. As such, Faulks J was of the view that the mother’s criticism of the father represented “on her part, an inability properly to appreciate the importance of the children’s time with their father ...”[8].
[7] See Hale & Hale CAF1638 of 2002 delivered by Faulks J on 27 May 2004 at paragraph 29
[8] Ibid at paragraph 30
As such, His Honour proposed that both parties undergo a course of counselling to assist them to facilitate an appropriate level of relationship between the children concerned and the other of their parents.
Ultimately, orders were made by the court permitting the mother to relocate with the children, after 24 September 2004. Thereafter, the children were to spend each of the short school holiday periods and one half of the end of year school holiday with their father in [D].
In addition, the father was authorised to have reasonable “contact” with the children, in Adelaide, at any time he was visiting the city, upon him giving a fortnight’s notice to the mother of his intention to visit.
Orders were also made for the father to speak with the children regularly on the telephone. The mother was to ensure that the children telephoned their father, at least once per week and, to this end, the mother was to “facilitate and encourage” the children to be involved with their father’s telephone calls.
Finally, Faulks J referred both parties to a course of counselling, as recommended by the Director of Court Counselling at Canberra, which was intended to secure the following:
“The purpose of such counselling is to try to allow the parents to improve their level of communication with each other about the children. It is also intended to assist the parents with how to cope with their children’s inquiries about the other parent and to enable each parent to avoid circumstances in which the children receive from him or her a negative impression about the other parent or where the children feel that they are obliged to take one parents side against the other or to provide emotional support for that parent.”[9]
[9] See order 18(c) of the orders of Faulks J made 27 May 2004
In terms of the property proceedings, Faulks J ordered that the parties’ matrimonial estate be divided equally between them. In practical terms, this meant Mr Hale retained the various farming properties in [D] and was obliged to pay a sum of just under $600,000.00 to Ms Hale.
It is common ground that the course of counselling recommended and ordered by Faulks J was not as extensive as intended, nor as useful as was hoped. Mr Hale attended one or two appointments, which he did not find helpful. My impression is that he is currently very far from being an enthusiast for counselling or other therapeutic interventions into his and the children’s relationship with one another.
Ms Hale’s attendance at counselling was, at best, desultory. Certainly, her personal involvement with counselling lapsed after she moved to Adelaide. The orders of 27 May 2004 did not envisage any process of review.
Mr Hale was dissatisfied with the decision of 27 May 2004. As a result, he appealed the orders in respect of both the children’s issues and the division of matrimonial property to the Full Court of the Family Court.[10]
[10] See Hale & Hale [2005] FamCA 805
Judgment was delivered on the appeal on 27 July 2005 after the appeal had been heard on 8 November 2004. The appeal was dismissed, so far as the children’s matters were concerned.
The property aspects of the appeal were concluded on 9 June 2006. The father was successful and the amount to be paid to the wife was reduced to $463,373.00, on the basis that the parties’ matrimonial estate should be divided 60/40 percent in the father’s favour.
Pending the disposal of the appeal, the mother and children had remained living in [D]. Ms Hale and the children moved to Adelaide in October of 2005. Accordingly, at the date of the present hearing, [X], [Y] and [Z] have lived in Adelaide for around about three years and nine months. They have lived predominantly with their mother for a little over seven years.
Problems soon presented themselves in respect of the orders. The father conveyed to the mother his intention to spend time with the children, in the third week of October, so that he could see how well the children had settled into their new school in Adelaide. The principal of the school refused the father access to the children, at school, apparently on the direction of the mother.
In early April of 2006, [Y] broken her arm at school. As a result of this injury, Ms Hale determined that it would not be in [Y]’s best interests to travel to [D] for the Easter break. This decision was not acceptable to Mr Hale, particularly as he had scheduled his wedding to Ms H during the holiday in question.
Eventually, after the threat of legal proceedings, it was agreed that [Y] would accompany her sisters to [D] for the holiday in question. Accordingly, all three children were able to attend the marriage of
Mr Hale to Ms H on 22 April 2006.
Ms H (now Mrs H) has been previously married. She has two children from her first marriage, [A] born in 1995 and [B] in 1997. [A] and [B] live with their mother and Mr Hale in [D], although [A] has recently started to attend boarding school.
The children attended [D] for the remainder of the 2006 year, including the end of year school holiday, without apparent incident. On 3 April 2007, or thereabouts, [X] broke her arm, whilst playing on the monkey bars at school. As a result, she required hospitalisation and some orthopaedic surgery.
As a result of this injury, [X] did not travel to [D] to spend time with her father during the end of term 1 school holiday, as required by Faulks J’s order. [Y] and [Z] did travel to [D] as required. [X] has not spent any extended periods of time, in her father’s care, in the period since.
It is Ms Hale’s position that, in addition to her broken arm, there were other reasons why [X] did not want to go to [D]. These matters led to Ms Hale commencing proceedings in this court on 22 June 2007.
She sought the immediate suspension of the orders of 27 May 2004, so far as they related to [X] spending time with her father and that an immediate psychological assessment be undertaken of [X] regarding her “emotional problems associated with spending time and communication with the father.”[11]
[11] See mother’s application filed 22 June 2007 at interim order 2
The mother’s position, at this stage, was that she was becoming increasingly concerned at what the children, particularly [X], were disclosing to her about what happened to them, whilst at Mr and Mrs H’s home in [D]. These matters included:
·The children were left unsupervised or supervised only by [A] for extended periods of time;
·Mr and Mrs H were often at the pub and were frequently intoxicated;
·The children were denied access to the telephone;
·[X] complained that [A] and [B] twisted her arm;
·The children swam unsupervised in the Snowy River;
·Ms H (Mrs H) had screamed at the children and had hit [Z] with a drum stick.
Overall, the impression the mother painted was that the children felt Mrs H was not sympathetic to their needs and behaved in a volatile fashion. One incident was given special prominence. It concerned [X] perceiving that she had been unjustly accused of stealing a pair of
Mrs H’s earrings and been unfairly penalised because of it.
During the April 2007 school holidays, the mother asserts that [X] wrote a letter to police requesting that they grant her a restraining order against her “Dad and Step Mum” to stop them hurting her. [X] had apparently learnt about such things from “The Simpsons”.
Ms Hale was also concerned about [X]’s choice of sentences in her school spelling book. The sentences of note to Ms Hale included the following:
·Ms H abuses me in every way;
·I sincerely did not take Ms H’s earrings;
·I wish the demise of Ms H.
Mr Hale also deposed that [X] had indicated at school that she “hated” holidays and in her school diary had written: “I’m not going to Dad’s”. It is also alleged that she had drawn an escape map in respect of her father’s home.
Of more moment, in the overall scheme of things, Ms Hale revealed in her initial affidavit that [X] had been seeing a school counsellor. He was Mr M. Mr M subsequently gave evidence during the final hearing.
As a result of matters disclosed to him, Mr M had reported [X]’s complaint to the Child Abuse Report Line. He had also reported to the Department of Community Services in New South Wales, as a result of [X] disclosing to him that [A] and [B] had been assaulted by Mrs H with a belt.
Mr Hale responded to this application on 26 September 2007. His final position was that all three children should live with him in [D] and spend time with their mother in Adelaide for all of the mid-year school holiday and one half of the Christmas School Holiday. In the interim, he agreed that an urgent family report be prepared.
Mr Hale denied ever having been drunk in the presence of the children. He denied that either he or Ms H (Mrs H) had been violent or aggressive towards the children. He alluded to an incident involving some earrings but it was his position that this had been sorted out between [X] and Mrs H.
Mr Hale deposed as to his concern arising from the contents of [X]’s spelling book and school diary. He also expressed his concern that he had not been previously advised that [X] was seeing a counsellor. At this stage, he formerly raised his concern that he might lose his relationship with all three children because of the mother’s obstruction of both his school holiday time with them and his telephone communication.
Having outlined the parties’ history with one another to this point, it is readily apparent to me that they have no facility whatsoever to discuss issues arising in respect of their three children. [X]’s behaviour was concerning. It was upsetting that both she and [Y] had broken their arms in separate incidents.
The mother had no capacity to discuss directly with Mr Hale the concerns [X] had apparently raised with her. As had occurred in the earlier proceedings before Faulks J, she apparently accepted the matters raised by [X] without demur. From his perspective, no doubt, Mr Hale regarded it as futile to attempt to reason with the mother, whom he suspected of having an ulterior motive.
On 21 September 2007, the parties agreed to commission Dr Bollard to prepare a family assessment in respect of all three children and a psychological assessment in respect of [X]. At this stage, Mr Hale agreed not to push the issue of [X] attending in New South Wales for the September/October school holiday.
A further order was made that the father have specific times to communicate with the children each week. Sunday and Tuesday at 7:30 pm were the times nominated with the father to place the call to the mother’s home, with Ms Hale to ensure that the children were available to take their father’s call.
This was the background to Dr Bollard’s first report, which was dated 23 November 2007.[12] Again the process of interviews for the report was not without controversy between the parties.
[12] See affidavit of Ross Jeffrey Bollard filed 10 July 2008.
Initially, Dr Bollard was scheduled to meet with all three children on 11 October 2007, whilst [Y] and [Z] were on holidays with their father. Ms Hale complained about the shortness of notice of this appointment and advised that [X] would not be able to attend. Apparently Ms Hale had arranged for her to be in Melbourne attending the Australian Girls’ Choir Performing Arts Holiday Program.
Mr Hale remains aggrieved that he and Mrs H had to return to Adelaide to take part in a further interview process with [Z] on 30 October 2007. It is his position that the mother was intent on making the family report process as difficult as possible for him.
I am not persuaded that this is the case and believe a more likely explanation for the difficulty created is the poor level of communication between the parties concerned and their mutual suspicion and antipathy for one another.
Dr Bollard interviewed [Y] and [Z], whilst they were in the company of their father and Mrs H. Dr Bollard described both as “absolutely delightful children [with] effervescent personalities”. Both children spoke enthusiastically about life in [D]. In fact, both children expressed a preference for country living and indicated that they would readily move back to [D], provided their mother could be with them.
[Y] and [Z] were observed to relate well with their father and Mrs H. In addition, they indicated to Dr Bollard that they had a good network of friends at their primary school, where both were doing well.
In her interview with Dr Bollard, Ms Hale provided a list of concerns regarding Mr Hale and Ms H’s parenting of the children. These concerns related to alcohol use and lack of supervision. In addition, Ms Hale alleged that Ms H had become intoxicated and behaved inappropriately at a New Year’s Eve Party, which the children had observed.
Finally, the mother alluded to concerns that Mr Hale had not respected [X]’s privacy, so far as use of the bathroom was concerned and had been insensitive in respect of the earring incident.
On 30 October 2007, Dr Bollard elected to interview all three children together. He described [X] as being “highly intelligent”. Overall, the three children were described as being relaxed and comfortable in each other’s company.
After a while, it became apparent to Dr Bollard that his strategy of seeing all three children together had miscarried. When the focus of the interview turned to future living arrangements for the children, [Y] apparently stated that when she was at her father’s she wanted to live with him and when she was with her mother, she wanted to live with her. A sentiment which [Z] echoed.
[X] apparently challenged these statements of her younger siblings. At which, to use Dr Bollard’s expression, the interview degenerated into “general uproar”. As such, Dr Bollard elected to see [X] alone.
[X] had apparently come to the interview well prepared with some notes, which contained her various complaints about her father and Mrs H. These complaints included the following:
·Following an argument between [A] and Mr Hale, [A] had attempted to stab Mr Hale with a knife;
·Ms H and Mr Hale had been involved in two car crashes when both were drunk;
·[A] and [B] had twisted her arm, kicked her and karate chopped her;
·[X] had been affronted by a false accusation that she had stolen Ms H’s earrings;
·[X] complained about her father and step-mother’s drinking behaviour and their behaviour at a New Year’s Eve Party;
·[X] complained about household tasks allocated to her and the fact that she was forced to eat vegetables, which she did not like; and
·[X] was aggrieved that Ms H was unwilling to return some of her possessions to her.
Overall, [X] was aggrieved that Ms H was not “nice” to her and she (Ms H) preferred the twins over her. She also complained that [Y] had a propensity to “tell on her” to Ms H. The impression this account leaves me with is, perhaps unfairly, of a somewhat petulant but strong willed pre-adolescent girl, who is not adverse to attention.
At any event, given her litany of complaints about her father’s household, [X] unequivocally indicated to the Dr Bollard that she had no intention of returning to [D] to spend time with her father. It was also her position that she felt disinclined to engage with him on the telephone. Dr Bollard elicited from [X] that she felt “angry at her father” because he prioritised his relationship with Ms H and did not spend sufficient time with her ([X]).
For obvious reasons, Dr Bollard was interested to see [X] interacting directly with her father and Mrs H. No doubt, he was concerned that the motivation given by [X] for wishing to avoid her father was more indicative of her perception of hurt and rejection than related to concerns about her fundamental safety whilst with her father. In these circumstances, an interview was arranged between Dr Bollard, [X],
Mr Hale and Mrs H on 19 November 2007. [X] indicated her willingness to attend.
In the interview, [X] pointedly elected to sit around two metres away from her father. However, Dr Bollard did not regard her as a “shrinking violet” in the interview context. To the contrary, he regarded her as being an assertive child for her age and forthcoming in her complaints about Mr Hale and Ms H.
In this difficult setting, Dr Bollard was impressed with the sensitivity which Mr and Mrs H displayed to [X], particularly given her criticisms of them. Both indicated to [X] that they had not intentionally wanted to upset her. Mrs H acknowledged some “teething problems” in her parenting of the Hale children, particularly whilst they were adapting to sharing a household with [A] and [B].
Mr Hale also acknowledged to [X] that he had experienced difficulty initially in forming a relationship with [A]. During the course of the interview, Mr Hale expressed his love for [X]. However, he and Ms H were also wanting to put the record straight with [X] regarding her claims of inappropriate discipline.
Of some possible moment, in terms of how the case was progressed, was the following comment made by Dr Bollard regarding questions put to [X] by Mr and Mrs H:
“Ms H and Mr Hale asked [X] to consider why the twins were still keen to maintain school holiday contact when they had been subjected to more or less the same experience as [X] but [X] had no answer for this question.”[13]
[13] Ibid at page 18
I have not personally met [X]. Accordingly I have no direct knowledge of her character and personality. However, she is undoubtedly a strong willed person, an attribute which I consider she shares with her mother. In this context, one of the central issues in the case is what influence [X] has had on her two younger siblings, particularly in shaping their attitude towards their father and apparent level of willingness to attend holiday visits with him.
After interviewing each of the children on several occasions and having exhaustively interviewed the parties concerned, Dr Bollard provided the following summary of the family dynamic:
“I formed the view that the children, [X], [Y] and [Z], have a close and loving relationship with their mother and they are developing well in their care.
The twins, [Y] and [Z], also displayed a close and loving relationship with their father and an emerging healthy relationship with their stepmother, Ms H.
[X] also displayed a significant emotional bond with her father but this is being tested by the introduction to her life by the stepmother and her stepmother’s two children, [A] and [B]. Her ability to cope with this adaption has been stalled by her stage of pre adolescent development and the hormonal changes and emotional labiality that is commonly associated with this stage.
With regard to future living arrangements, [Y] was consistently clear that she wanted to continue spending time with her father under the guidelines of the existing Order. [Z] was not as clear in her view as her twin sister, but overall I gained the impression that she too would be happy to continue with the existing arrangement. In any event, I believe it would be in the best interests of [Y] and [Z] to continue spending time with their father according to the present Order.
[X] remained consistent throughout the assessment that she wanted to have no direct contact with her father either in [D] or Adelaide, however she appeared to be confused and to be influenced by other sources in expressing this view.
The mother’s attitude towards future living arrangements is heavily influenced by the issues of safety and protection of the children. I agree that these considerations are very important, but the sources of her concerns about safety and protection of the children, since separation at least, are based largely on information provided to her by [X] and friends in [D] with whom she remains in contact. The father’s view is that the children are much loved by himself and his wife Ms H, and they are safe while in his care and that the major issue at hand is that he is being alienated from the children by their mother. His biggest fear is that if [X] continues to refuse to spend time with him the younger two children will follow suit.
Overall, I believe that both parents have a great deal to offer all three of the children. I agree with the comment made by Dr Rickard-Bell during his initial family assessment that the mother is more in tune with the children’s needs than the father, however the father loves the children and his input into their lives compliments the mother very well. In time, I believe that Ms H and her two children from a previous relationship will add to the life experiences of the Hale girls.”[14]
[14] See paragraphs 19-21 of Report of Dr Jeffrey Bollard attached to Affidavit of Ross Jeffery Bollard filed 10 July 2008
Accordingly, at this stage, Dr Bollard recommended that the three children concerned should remain living predominantly with their mother but every attempt should be made to ensure that all three remained in contact with their father.
To this end, Dr Bollard recommended that [X] not be compelled to visit her father but rather a therapeutic approach be adopted. Accordingly, Dr Bollard recommended that [X] undertake a course of counselling to deal with the “many confusing issues on her mind”.
The matter returned to court on 11 December 2007, by which time Dr Bollard’s report had been released. By this stage, Ms Hale was acting on her own behalf. This remained the position until 1 May 2009.
On 11 December 2007, it was clear to me that there were many areas of controversy between the parties. In particular, Mr Hale was concerned that the longer [X] remained estranged from him, the greater was the likelihood that this situation would become entrenched and so perhaps impact upon his relationship with the twins. As such, I thought it appropriate to fix a final hearing date for the matter, which was in June of 2008.
Prior to that hearing taking place, the parties were in dispute as to what form, if any, the counselling recommended by Dr Bollard for [X], should take. The determination of this issue was deferred until the new year, so that each party could file affidavit evidence in respect of it.
It is common ground that [Y] and [Z] left for [D] on 15 December 2007 and spent time with their father over the Christmas period. [X] remained in Adelaide, as the order in respect of her attendance at [D] had been suspended.
The father’s preference was that [X] should attend upon a qualified child psychologist in Adelaide to give effect to the recommendation of Dr Bollard. His preference was either for Ms E or Ms T, both well regarded child psychologists. He was willing to pay for the costs involved in this counselling.
The mother was open to the idea of counselling for [X] but wished it to be provided by a counsellor associated with the Child and Adolescent Mental Health Service (CAMHS). This is an organisation funded and staffed by the South Australian Government. It was the mother’s position that this form of counselling would be more appropriate for [X]. Ms Hale was suspicious of the psychologists proposed by Mr Hale.
Ultimately I determined that the father’s option should be preferred. I reached this conclusion because of the experience of both Ms T and Ms E in the field of family breakdown, particularly in terms of children who were apparently estranged from one parent.
Accordingly, on 29 February 2008, I ordered that the parties do all things necessary to enable [X] to undertake a course of therapeutic counselling to be provided by either Ms E or Ms T, provided Mr Hale paid the necessary costs involved.
Ultimately, Ms T was engaged to be [X]’s counsellor. Ms T is not a witness in these proceedings and has provided no information to the court. I understand that [X] has had a number of sessions with Ms T, but that these are no longer ongoing.
From Mr Hale’s point of view, the involvement of Ms T has been singularly unproductive. [X] has remained apparently unwilling to see her father and the two have exchanged only perfunctory and unhappy words on the telephone in the past few months.
I suspect that Mr Hale has always had significant misgivings about the utility of counselling, particularly in the context of his own circumstances with [X] and the twins. In such circumstances, it is hardly surprising that his attitude has hardened, given Ms T’s apparent inability to bring [X] around to him.
On 29 May 2008, less than a month prior to the date scheduled for the final hearing, Ms Hale applied to vacate the hearing date and for the three children concerned to be independently represented. This application was listed at short notice on 2 June 2008.
Mr Hale, I suspect with some reluctance, was persuaded to see the utility of postponing the final hearing. The counselling between [X] and Ms T was in its early stages and no doubt Mr Hale hoped that it would bear fruit. In addition, the twins were spending time with him as envisaged by the orders of 2004.
Accordingly, with the consent of each of the parties, on 2 June 2008, I refixed the matter for final hearing on 10 and 11 February 2009. In addition, I made some further orders regarding [X] attending on Ms T for counselling, which was to include [Y] and [Z], if Ms T thought it expedient. A further order was made allowing Mr Hale to spend time with [Y] and [Z], in Adelaide, for three days towards the end of June.
At this stage, Mr Hale was opposed to the children being independently represented, primarily because of the level of expense involved. It was his position that the views of the children were best canvassed through a family assessment process.
In addition, as the case was focussed mainly on [X], Mr Hale could not see much point in having all three children independently represented. Accordingly, the issue of whether the children should be independently represented was deferred until mid-August of 2008.
Ms Hale continued to press for the children to be independently represented. The issue was finely balanced. As matters have turned out, I am glad I made the order for [X], [Y] and [Z] to be independently represented. However, I was not 100 percent sure, one way or the other, in August of 2008.
Ultimately, the factors which influenced me in favour of the independent representation of the children were the following: there seemed a significant risk of [X] becoming permanently alienated from her father; there were potentially issues raised about the separation of the siblings; [X] was expressing strong views and appeared to be a child of mature intellect; and Ms Hale was unrepresented.[15]
[15] See re K (1994) FLC 92-461
In addition to the order appointing an independent children’s lawyer, on 15 August 2008, I directed that Dr Bollard prepare an addendum to his November 2007 report. In particular I directed that the parties authorise Ms T, [X]’s therapist, to liaise directly with Dr Bollard regarding the process of [X]’s counselling.
Once again, [Y] and [Z] attended at [D] in the September/October 2008 school holiday as usual. From Mr Hale’s point of view, there was no progress so far as the repair of his relationship with [X] was concerned.
On Father’s Day of 2008, [X] came onto the phone after Mr Hale had finished speaking with the twins. [X] said to him “Dad I do have something to say to you. I hate you” and then she hung up.[16]
[16] See paragraph 3(b) of the father’s affidavit filed 27 February 2009
This was the background to Dr Bollard revisiting the children, in October and December of 2008, prior to him releasing his second family assessment report on 10 December 2008.
In October, [Y] and [Z] described to Dr Bollard having had an idyllic bush holiday, with their father, in the pervious school holiday. They had mustered cattle; been swimming in the Snowy River; and been camping. Both children reported having got on well with [A] and [B].
[X] was present during this interview, when the twins expressed considerable enthusiasm about their life in [D]. However, unlike the previous occasion, she kept her silence. No doubt this silence can be attributed to the presence of Mr and Mrs H who were sitting in on the interview.
When asked about whether they would want to change their current living arrangements, [Y] and [Z] were ambivalent about the issue with Dr Bollard. At one stage, [Y] indicated she would be receptive to a change. [Z] indicated that she would like to keep things as they were. [Y] also apparently said that she would like to stay with her father for longer periods of time. Later, both twins indicated that any potential change in their living arrangements “didn’t bother them either way”.
After Mr and Mrs H had left, Dr Bollard took the opportunity to speak with all three children again. In this later interview [X] radically changed her behaviour and, in Dr Bollard’s phraseology “came to life”. In the presence of her sisters, she indicated to Dr Bollard that she “hated her father and Ms H”. She also reiterated many of her previous complaints about them.
In his second report, Dr Bollard had the following observation to make about his session with the children:
“One of the most significant features of this session I thought was [X]’s behaviour towards her younger sisters and the influence she exerted over them. Thus, whereas [Y] and [Z] had both talked effusively and positively about their recent holiday contact with their father and Ms H, whenever the twins said anything positive about this time, [X] would immediately put a negative “spin” on the experiences related to me by the twins; eg: that Mr Hale and Ms H had gone out of their way to make the twins’ holiday as good as possible to make them want to continue with this practice.”[17]
[17] See Dr Bollard’s reported dated 10 December 2008 at page 10 annexed to the affidavit of Ms B filed 12 January 2009
At the end of this particular session and necessarily as a result of the involvement of [X], [Y] and [Z] abandoned to Dr Bollard any interest in living predominantly with their father in [D]. The twins however did indicate to Dr Bollard that they liked their “father and Ms H lots”. [X] also said to them “stay with mum and you can play with me”.
Dr Bollard elected to see the children again in the early part of December, in order to contrast [Y] and [Z]’s presentation after having spent a holiday period with their father and a school term with their mother. Once again, he saw all three children together and was able to observe the inter-sibling dynamic.
[X] was described as presenting as cheerful and bubbly. In particular, it was obvious that there was a close rapport between her and the twins. Of great significance, as matters subsequently transpired, was Dr Bollard’s observation that [X] was able to influence the mood of the twins, during the progress of the interview.
Dr Bollard described [X] as being able to “dominate” the session and being prone to influence and control the views expressed by the twins. In particular, as the interview progressed, [Z] was observed to become “sombre and intense”.
Throughout the interview, [X] maintained her negative view of her father and Mrs H. The dynamic of the interview was interesting. [Y] leapt to the defence of her father and Ms H. On the other hand, [Z] was reported as displaying a distinct change in attitude towards spending time with her father in [D]. However, [Z] was unable to give any specific reason for this change of heart.
The clear import of Dr Bollard’s observation was that [X] was able to exert an influence upon [Z], but not on [Y]. In this regard, Dr Bollard reported as follows:
“… [X] became more direct in instructing [Z] what to say and [Z] in turn expressed more negative sentiments about her father and Ms H. [X] and [Z] developed an “alliance” as this session ensued and [Y] was ostracised for maintaining her position of wanting to spend more time with her father and Ms H than is available at present.”[18]
[18] Ibid at page 13
Once again, Dr Bollard interviewed the mother. He described her as “a conscientious parent who was highly focussed on the safety and welfare of her three children.” Her antipathy for Mr Hale and his current wife was readily apparent to Dr Bollard.
Ms Hale once again utilised the interview to list her concerns about the children being in the care of their father and Mrs H. Her concerns culminated in the mother stating her view that Mr and Mrs H were both mentally unstable and, as such, should be examined by a forensic psychiatrist. No doubt the desired purpose of this proposed examination was to assess the degree of threat Mr and Mrs H allegedly posed to the three children concerned.
Many of the mother’s concerns related to events that that must have occurred years before, certainly prior to [X] ceasing her contact with the father. These included concerns that [X] had been sexually assaulted by [A] and that Mr and Mrs H had shown no respect for the personal privacy of the children.
In Dr Bollard’s assessment, many of Ms Hale’s concerns were based on relayed information, particularly from [X], who was to be regarded as a biased source. As such, Dr Bollard considered much of the information, on which the concerns were based, to be generally unreliable.
One incident relayed to him, which caused Dr Bollard some concern was that the twins had been left unsupervised by their father, in a cabin during their previous camping holiday and a rifle had been left with them. Mr Hale, for his part, denied that any firearms had been taken on the camping trip.
Around the time of the preparation of his second report, Dr Bollard consulted Ms T about the progress of [X]’s counselling. At the time, [X] and Ms T were meeting about once per month and Ms T considered that she had a good rapport with [X].
The emphasis in the counselling concerned was apparently on how [X] could develop strategies to be able to communicate more effectively with her father. [X] apparently complained to Ms T that she felt that her father did not listen to her concerns.
Overall, events between November 2007 and December 2008 did not cause Dr Bollard to change his overall recommendations about care arrangements for the three children concerned. He remained of the view that [X], [Y] and [Z] were well settled in Adelaide and had a good relationship with their mother and each other.
At the same time, he was also of the view that the children, particularly [Y] and [Z], had much to gain by spending as much time as possible with their father and stepmother in [D]. Dr Bollard remained hopeful that a therapeutic approach, so far as [X] was concerned, remained the best course to assist her resuming contact with her father and having a more beneficial level of relationship with him.
However, in his second report, Dr Bollard issued a clarion call of warning about the family dynamic in the mother’s household in terms of its amenability to support an appropriate level of relationship between the children and their father. He was particularly concerned about [Z] in the short term and [Y] in the longer term. He wrote as follows:
“… I strongly believe that the parents and other significant people in the children’s lives do all things possible to maintain [Z]’s ongoing participation in the present contact arrangement with her father. [Z] recently has indicated that she does not wish to join her twin sister in spending time with her father for the latter half of the current school vacation, however I believe this would be a retrograde step and the forerunner to the same process that led to [X] ceasing to see her father. I believe that [Z] has been placed under pressure overtly and covertly by influences other than the behaviour of her father and stepmother and her experiences during contact periods. I believe she ought to be strongly urged to attend the next period of contact because if this does not occur, it would be the first step in breaking the “cord” between herself and her father and stepmother (as was the case with [X]) and, could lead to the same process developing in the case of [Y].”[19]
[19] Ibid at page 18
The “other influences”, to which Dr Bollard alludes can only be [X] and Ms Hale. My impression of [X] is of a headstrong and somewhat manipulative pre-adolescent, who currently bears a significant level of animosity towards her father and Mrs H in particular.
In such circumstances, she is hardly likely to sit back quietly as the twins happily depart for [D], leaving her isolated in Adelaide for the long vacation. To the contrary, she seems more than capable of both lobbying and possibly bullying the twins to her preferred outcome.
Ms Hale, over many years, has advocated a view that Mr Hale is a lax and negligent parent and the environment in [D] one which is inherently hazardous for children. Certainly, this was her stance in the earlier proceedings before Faulks J and the tenor of her interview with Dr Bollard.
As such, there appears to be much scope for the mother to either actively or tacitly signal to [X] that she ([X]) is free to do whatever she wishes to derail contact arrangements pertaining to the children with her (Ms Hale’s) apparent acquiescence.
These comments, are made with the benefit of hindsight of what actually occurred in the January 2009 school holidays. Dr Bollard did not have that hindsight in December 2008. Accordingly, he must be credited with a significant level of prescience so far as this family is concerned.
As such, his admonitions regarding the durability of the relationship between both [Y] and [Z], with their father, must be given significant weight, particularly given the uninhibited enthusiasm both children had initially expressed for holidays spent with their father in [D].
It is common ground that [Z] did not board the plane as scheduled at Adelaide airport on 4 January 2009, in order to spend time with her father over the summer vacation. Mr Hale was informed of this fact by a terse telephone call from Ms Hale made on the day in question. [Y] however travelled to [D] as usual.
On 7 January 2009, whilst swimming in the Snowy River, with a number of other children, [Y] was bitten by a snake. It became immediately obvious that she was very seriously ill and needed urgent medical attention.
Mr Hale and other adults were present in the immediate vicinity and an ambulance was called. Mr and Mrs H were driven with [Y] to [omitted], where they met the ambulance. The ambulance conveyed [Y] to the [C] Hospital, where she was met by an emergency helicopter, which conveyed her to the Canberra Hospital.
At the Canberra Hospital, antivenene medication was administered to [Y]. Unfortunately, she experienced a severe allergic reaction to it, which affected her respiratory system. Her life hung in the balance. Given the critical nature of her condition, she was evacuated by air to the [W] Hospital in Sydney.
At [W], [Y] was admitted to the intensive care unit, where she was placed into an artificially induced coma and put on a ventilator. It was uncertain whether she would survive. Against this background, word was got to Ms Hale, who urgently flew to Sydney with [X] and [Z].
In my view, it cannot be said that what befell [Y] was anything other than an unfortunate accident. The place where she was bitten was a popular and well frequented swimming hole. Mr Hale was close by. He was not under the influence of alcohol at the time. [Y] got prompt and appropriate medical attention.
[Y] was in [W] Hospital until 11 February 2009, when she was transferred to hospital in Adelaide. During much of this period, she remained critically ill. Both her parents, Mrs H and indeed [X] and [Z] were present during this period.
For obvious reasons, it was a difficult and tense period for all concerned. The hospital authorities were alerted to the fact that the family concerned was one which was subject to a high level of conflict. As such, a regime was inaugurated to prevent the mother and father coming into direct contact with one another around [Y]’s bedside.
Given [Y]’s serious condition, the circumstances at the hospital precipitated extreme emotional reactions in both parties. It is Mr Hale’s case that, although he was deeply worried about [Y], he behaved appropriately at all times and remained focussed on [Y]’s best interests.
It is Mr Hale’s case that the same cannot be said for Ms Hale. It is his case that she behaved poorly and the notes kept by various hospital officials reveal her as she actually is – irrational, manipulative and disingenuous.
Mr Hale contends that the mother’s behaviour cannot be explained by the critical nature of [Y]’s condition alone. Rather, it is his case that her extreme behaviour, throughout this period, is more readily explicable by her extraordinary level of animosity towards him and her determination to sever the children’s relationship with him, at all costs.
What occurred at [W] Hospital is one of the central evidentiary issues in this case. The father subpoenaed Ms F, the senior social worker attached to the intensive care unit at [W] to give evidence in the proceedings on 7 May 2009. I will return to these matters later in the judgment.
Due to [Y]’s serious illness, it became apparent to all concerned that the final hearing scheduled for 10 and 11 February 2009 could not proceed. Accordingly, the trial was vacated.
[Z]’s apparent refusal to attend [D] and the circumstances surrounding [Y]’s admission to hospital brought the relationship between the parties to a new level of discord and suspicion. Mr Hale became convinced that something urgently needed to be done to rescue his relationship with the children concerned. It was against this background that he brought an urgent application, to the court, on 27 February 2009, which was listed on 17 March 2009.
In his application, Mr Hale sought orders that would result in both parties being urgently psychiatrically examined. More importantly, as matters ultimately transpired, he wished orders to be made that would result in [X], [Y] and [Z] coming to live immediately with him, in [D], until the time allocated for the final hearing.
In his affidavit, filed in support of the application, Mr Hale deposed that he had formally indicated to Ms Hale that he wanted to spend time with the children, in Adelaide, between 16 and 18 March 2009, in accordance with the provisions of the orders of 27 May 2004. He proposed collecting the children from their school to avoid direct personal involvement between him and Ms Hale.
It is common ground between the parties that Mr Hale was not able to collect either [Y] or [Z] from their school on the afternoon of 16 March 2009, as he had proposed to Ms Hale, because neither child was at school at the time in question. From Mr Hale’s perspective, this added yet more urgency to his interim application.
Ms Hale was served with the application on 3 March 2009. She had not formally responded by the return date. It was her position that both [Y] and [Z] were highly resistant to spending time with their father and she did not know what to do to persuade them otherwise.
On 17 March, Mr Hale pressed his application to spend time with [Y] and [Z], particularly as he had travelled to Adelaide for that purpose and had given the prerequisite notice of his intention to Ms Hale.
Ms Hale indicated to me that she did not know how she could facilitate such an arrangement, given the children’s apparently firm views in opposition to it. In those circumstances, I decided to engage a neutral and expert intermediary to facilitate the exchange of the children between the parties and report back to me. The other interim issues were deferred to 26 March 2009 and the mother was given more time to file her necessary answering material.
Accordingly, on 17 March 2009, I made the following orders:
“The mother deliver the children [Y] and [Z] both born in 1999 to Mr Trevaskis, family consultant on the first floor of the Commonwealth Law Courts, 3 Angas Street, Adelaide at 9:00am on 18 March 2009.
Pursuant to section 65L of the Family Law Act Mr Trevaskis assist the parties and children concerned to give effect to order 5 hereof and Mr Trevaskis prepare a brief report regarding his involvement with the family in respect of facilitating these orders by 20 March 2009.
The father spend time with the said children on Wednesday, 18 March 2009 from 9:00am until 6:30pm with the father to return the children to the mother’s home at the completion of the period after collecting the children from Mr Trevaskis.”
Section 65L(1) reads as follows:
“Family consultants may be required to supervise or assist compliance with parenting orders
(1) If a court makes a parenting order in relation to a child, the court may also, subject to subsection (2), make either or both of the following orders:
(a)an order requiring compliance with the parenting order, as far as practicable, to be supervised by a family consultant;
(b)an order requiring a family consultant to give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order.”
I had been earlier told that Mr Hale planned to spend the day with [Y] and [Z] at the Monarto Zoo. Ms Hale was also aware of this fact, as it was discussed in court on 17 March 2009. Mr Trevaskis reported back to the court as follows:
“Ms Hale delivered the children to the writer as ordered. It was clarified by Ms Hale in the presence of the girls that they knew that they were to be spending the day with their father. Both children said in front of their mother that they did not want to go to their father. This was said with little conviction. They did not resist accompanying the writer to a private room.
[Y] explained that she did not want to go, citing an incident in the past in which she was critical of her father’s partner. Her account of this alleged incident was brief, somewhat garbled, and was presented with little conviction. Her account had a rehearsed or prepared air to it.
The writer advised the girls that “the judge” had made a decision, and that “we all have to do what the judge says”. They offered no resistance or reluctance. They were told they were going to Monarto Zoo for the day, and both engaged in a brief and positive chat about the Zoo, lions and giraffes.
The girls accompanied the writer with no apparent reluctance to “let’s go and find dad”. Both girls greeted their father and his partner spontaneously, affectionately and warmly, with hugs and kisses being exchanged. There were no indications of reticence, reluctance, discomfort or fear.
The girls left the premises with their father and his partner without incident, giving the writer a soft toy and two small handbags to “give back to mum”, as they would not need them for the day.”[20]
[20] See report of Mr Trevaskis dated 18 March 2009
As perhaps can be readily anticipated, Ms Hale was vehemently opposed to the orders sought by Mr Hale. She took particular exception to the suggestion that she should undergo a psychiatric examination. She placed particular emphasis on the fact that the three children concerned had been in her predominant care since the parties separated.
I formed the view, based on the available evidence, particularly Dr Bollard’s recommendations, that it would be premature to change the residential arrangements for the children at the interim stage. I considered that if there was to be such a significant change, it should occur only after the court had had a proper opportunity to conduct an extensive evaluation of all the evidence available.
However, at the same time, I considered that there was considerable merit to Mr Hale’s concerns that the court needed to take urgent action to ensure that his relationship with both [Y] and [Z] could be preserved. Balancing these competing considerations, I came to the view that there should be an expedited hearing of the matter. The earliest available dates were on 6, 7 and 8 May 2009.
Given what had transpired to [Y] since Dr Bollard had seen the family, the independent children’s lawyer considered that it was appropriate that he (Dr Bollard) should revisit the family. In addition, formal orders were made to ensure that [Y] and [Z] spend some time with their father in the forthcoming Easter school holiday.
Given that Mr Trevaskis had been able to facilitate the exchange of [Y] and [Z] between the parties, it was proposed that Dr Bollard perform this function, after he had completed his interviews with the children. To this end, the following order was made:
“The children [X] born in 1996, [Y] and [Z] both born in 1999 shall spend time with the father from the conclusion of their interview with Dr Bollard on 6 April 2009 until the last Saturday of the April school holiday period 2009 noting that the father shall ensure the children’s attendance at school.”
Ms Hale remained legally unrepresented at this time. This had been the position prior to the aborted trial date in February. On 26 March 2009, I enquired of her as to the number and identity of the witnesses she proposed to call at the final hearing. I was given to understand that she would be continuing to act on her own behalf.
Ms Hale told me that she intended to call numerous witnesses, including a number of the children’s school teachers over several years. I was concerned that Ms Hale might be unduly ambitious in the witnesses she wanted to call, and in any event, these witnesses might not be particularly useful in the resolution of the overall issues between the parties, particularly why first [X] and then [Z] had expressed reluctance to spend time with their father.
For that reason, the proceedings were adjourned to 9 April 2009 and the following order was made:
“Further consideration of this matter is adjourned to 9 April 2009 at 9:30am for consideration as to the number of witnesses each party intends to call at trial noting that the mother and father will provide a precis of evidence on behalf of each of their proposed witnesses to the mother, the father’s solicitor and the independent children’s lawyer by close of business on 2 April 2009.”
This was the background of escalating difficulty, which confronted Dr Bollard, when he interviewed the various family members concerned on 6 and 7 April 2009, prior to the preparation of his third family assessment report. The release of the report to the parties was delayed.
The reason for the delay was that Ms Hale wished to tape record her interview with Dr Bollard. Dr Bollard was not prepared to release his report until he had received a copy of the recording concerned. He was prepared to have this transcribed at his own expense. No doubt he was concerned at the possibility of being misrepresented, in such a high conflict situation.
I have already made reference to my finding that Ms Hale finds it difficult to resist the impulse to expose the children to her negative views of Mrs H. This behaviour has the potential to be emotionally damaging to the children and does nothing to enhance their paternal relationships.
It is my finding that Mr Hale would dearly want to play as comprehensive a role as possible in the parenting of the three children concerned. He has been a regular and reliable payer of child support for the children. Accordingly, I do not think that it can be said that Mr Hale has been in any way derelict in respect of the discharge of his responsibilities towards the children, other than, like the mother, he has been unable to resist the impulse to share his negative views of Ms Hale with them on a few occasions.
d) The likely affect on the children of any changes in their circumstances
From the mother’s perspective, this is one of the most important considerations in the case. It is her position that [X], [Y] and [Z] are well settled in her care and have been for many years. As such, it would be an unwarranted experiment and likely to be contrary to their best interests if this longstanding arrangement is changed.
The father concedes that his preferred outcome would represent a significant change for the children. However, it is his position that the children have a well established relationship with him and know [D] well. In particular, they have attended school in the [D] area and have many friends there.
As such, it is Mr Hale’s position that the children will adapt well, if the court makes an order changing their principle place of residence, particularly as he and Mrs H are likely to be sensitive towards and supportive of the children as they adapt to such a change of circumstances.
Central to Mr Hale’s position is his contention that any short term detriment to the children is far outweighed by the fact that such a change of residence will ensure that the children continue to have a viable paternal relationship with him. Something which cannot be guaranteed if the current status quo is maintained, given Ms Hale’s longstanding animosity towards him and her impaired level of insight into the responsibilities of being a parent.
I agree with Mr Hale that his household and [D] cannot be regarded as an unknown quantity for any of the children. However, since late 2005, the children’s experience of living in [D] has been confined to periods during the holiday.
In addition, in my view, it would constitute a considerable adjustment for the children to accommodate living in a household where Mrs H fulfilled a significant maternal role and one which included [A] and [B].
As I have already indicated, I am satisfied that none of the children concerned has as yet established an easy and relaxed relationship with Mrs H. It is also clear that there have been tensions, from time to time, between the Hale girls and the Cox boys.
It was Dr Rikard-Bell’s finding, prior to the first hearing which provided the underpinning of the orders made by Faulks J, that
Ms Hale had a wider emotional range than Mr Hale and was more closely in tune with the children’s emotions than he. It is my finding that this continues to be the case. Given this state of affairs, on any view, the change proposed by Mr Hale would be a major and disruptive one for each of the children concerned.
The reality of [X], [Y] and [Z]’s lives, from late 2005 onwards, is that they have lived and attended school in Adelaide. From Mr M’s evidence each of them appears to be a popular and successful student. Necessarily, each of them has a cohort of friends at school. The children play tennis in their local area. They are also engaged in various musical activities. Their various connections to their mother’s household and the suburb in which she lives are myriad.
Although Mr Hale’s ostensible position is that the court should make an order for all three children to live predominantly with him, he recognises that such an outcome is unlikely in respect of [X]. Given her level of intransigence towards her father currently, in my view,
Mr Hale is realistic in his appraisal of the situation and it would be essentially unworkable for the court to order [X] to live with her father, in the face of such staunch opposition from her.
Accordingly, the outcome which Mr Hale puts in alternative raises the possibility of [X] and the twins living in separate households. In my view, such an outcome has possibly serious implications for each of the children concerned.
Firstly, [X] is likely to feel aggrieved at being separated from her younger twin siblings. This may harden rather than lessen her feelings of resentment towards her father, whom she will obviously recognise as the instigator of her separation from [Y] and [Z]. In such circumstances, the prospects of there being any rapprochement between [X] and her father would appear to be considerably reduced.
In addition, [X] on the one hand and [Y] and [Z] on the other will have less opportunity to engage with one another. They will be attending different schools and will have a different experience of life. In such circumstances, it seems likely to me that the level of intimacy between the siblings will be much reduced.
Dr Bollard was not greatly concerned at such an outcome, pointing to the fact that many children attend different schools and have different living experiences to their siblings. In addition, Dr Bollard pointed out that, in his view, it was viable for children to maintain sibling relationships during periods of school holiday contact.
I agree with these observations. But the fact remains that, up to this stage, the children have regarded themselves as a unit and have grown up together, sharing the same lifestyle and experiences. In addition, it seems likely that [X] and [Z] share many personality traits and interests. As such, in my view, it would be a significant thing to separate the siblings from one another and such an outcome should only be considered as a matter of last resort.
Undoubtedly, all three children have significant ties of loyalty and love to their mother. It is not beyond the bounds of possibility that, in the eventuality that [Y] and [Z] move to live with their father, they will each feel that they have let down their mother. This in turn may lead them to feel resentful towards their father and step-mother.
Mr and Mrs H assert that they will be able to deal appropriately and sensitively with the children’s adjustment to such a state of affairs. However, in my view, it cannot be guaranteed that the children will achieve this transition without experiencing some level of difficulty and quite possibly some serious oppositional behaviour. As such, in my view, there is an experimental or provisional aspect to the outcome proposed by Mr Hale, which is not without its difficulties.
e) The practical difficulties and expense of the children spending time and communicating with each of their parents
It would seem to be the case that each of the children are well accustomed to travelling between Adelaide and Canberra by air. It would also seem to be the case that Mr Hale has been primarily responsible for the travel costs involved, although the orders of Faulks J envisaged the creation of a fund for the payment of the children’s necessary travel expenses.
Accordingly, whatever difficulties which arise in respect of the children’s future travel arrangements, whatever is the ultimate outcome, I believe that these difficulties are more likely to relate to the parties’ poor relationship with one another rather than to purely financial matters.
Ms Hale has claimed that she is not in a position to compel the children to do anything, which is against their will. As such, it is her position that she was powerless to get [Z] onto the aeroplane, to Canberra, in January of 2009, in the face of [Z]’s refusal to do so.
She has maintained the same position in respect of Mr Hale’s subsequent visit to Adelaide in March of this year, when his initial request to spend time with the children was unfulfilled. This apparent difficulty lead me to engage an intermediary in place of Ms Hale.
In the light of Mr Trevaskis’ experiences with [Y] and [Z], I do not accept that the difficulties experienced by Ms Hale exist to the extent which she asserts. It is my finding that she either wants these difficulties to exist or has fanned some ember of concern which exists in the children’s minds to create the difficulties of which she complains. [Y] and [Z] are basically well behaved children, whom one would expect would respond to adult or parental direction.
Ms Hale speaks of the need for the children to pass through “emotional airlocks” in order for them to embark upon an aeroplane to Canberra successfully. The need for such an airlock can only rest on the necessity to remove the children either from the mother’s emotional neediness or her direct manipulation of them.
A more logical solution to the problem is that Ms Hale should direct the children to get on the plane and brook no opposition from them. Although Ms Hale may believe my attitude is harsh, I expect her to be able to win any battle of wills with a ten year old child. That she should direct the children to spend time with their father is an integral part of her responsibilities as a parent.
[X] is in a different category, as her near to hysterical behaviour outside the mother’s home recently demonstrates. She is also older and her attitude has become more entrenched. For reasons already provided, I am satisfied that both parties have played a role in creating this state of affairs and it is difficult to see how it could be turned around by court order alone.
Ms Hale has deposed that she believes that she will be able to talk [X] around in time. I hope that this is so. I have not been advised what occurred during the recent mid-year school holidays. I am acting on the assumption that “no news is good news”.
In short, if the mother’s self professed change of heart is genuine, there should be few practical problems impeding certainly [Y] and [Z] from being able to spend time with their father. If the change of heart is not genuine, there will be problems and any orders may have to be revisited at the instigation of either the independent children’s lawyer or the father.
One of the significant planks of the father’s case is that, if the boot is on the other foot and the children live with him, there will be no problems with them visiting their mother regularly. I accept that this is likely to be so. However, this is but one factor which must be considered within the overall complexities of the case. I suspect that although it may be easy to get the children to Adelaide, it may not be so easy to secure their return.
At the end of the day, one of the consequences of changing the children’s principle place of residence is that it will intensify the mother’s hostility and suspicion of the father, which is already unacceptably high. In the past, Ms Hale has demonstrated some facility and willingness to thwart the father.
I have described Ms Hale as a strong willed person. That remains my view. For Ms Hale, the three children concerned are her life. In all these circumstances, it is difficult to see that if the children live predominantly in [D], there will not be issues arising regarding their future interaction with their mother.
f) The capacity of the parties to provide for the children’s emotional and educational needs
All three children are doing well at school and are well regarded students. They engage in a variety of musical and sporting activities. The impression I have is that [X] and [Z], in particular, have an academic bent.
Accordingly, I have no doubt that Ms Hale is able to supply the children’s educational needs. I am equally confident that Mr Hale too aspires to each of the children being able to achieve their full educational potential.
My impression of Ms Hale is that she is emotionally in tune with the children. Certainly she loves them and is able to demonstrate this love to [X], [Y] and [Z], who are secure in this level of affection.
However, her relationship with the children is complex. She is highly protective of the children. She has demonstrated herself as being willing to enlist the children in her struggle with Mr Hale.
In this sense, I am concerned that Ms Hale is somewhat insecure and, as such, liable to regard the children as quasi-adult confidants, particularly in her portrayal of the father to them. Given the nature of the children’s relationship with their father, which until recently was close and secure, this has the potential to cause them emotional damage.
Accordingly, although I accept Dr Rikard-Bell’s assessment that the mother has a wide and appropriate range of emotional repertoire, she also has a number of significant emotional deficits, the major one of which is an inability to foster a proper level of relationship between the children and their father and her propensity to speak negatively of the father to the children.
The reasons for this are likely to be complex. Although the parties have been separated for many years, Ms Hale indicated in her evidence that she still feels hurt and abandoned by Mr Hale. In these circumstances, I suspect that she has some level of resentment against Mrs H.
Accordingly, I believe that the mother’s household is a happy one for the children other than for the fact that they are not free to talk about their father and he is not an active or positive presence within it.
Mr Hale’s love and devotion for the children cannot be underestimated. During his evidence, he was at pains to point out to me the significant amount of money he has spent in his attempts to secure his relationship with the three children concerned. It is also to his great credit that he has been willing to fund [X]’s consultations with Ms T, in the hope that this will lead to some improvement in his level of relationship with her.
The impression I have is that Mr Hale is perplexed by the current state of affairs. He also continues to remain very angry with Ms Hale, whom he believes can be the only reason for the present difficulties, which he is experiencing with the children.
If it be true that Mr Hale has complained to [X] about the mother’s behaviour and the cost of these proceedings and the earlier property proceedings, as Mr M’s notes disclose, this shows an impaired ability to supply the children’s emotional needs. In my view, the father’s animosity towards Ms Hale, stemming over many years, is also part of the dynamic in this case, which impacts upon the children’s emotional functioning.
g) The children’ maturity, sex, lifestyle and background
The parties’ respective households offer quite different lifestyles for the children concerned. Mr Hale is able to offer the children a rural and outdoor lifestyle. Ms Hale’s household is suburban in nature. I suspect that both environments have appeal for the children, although perhaps in differing degrees.
In my view, given the children’s background, it is likely to be important to them to be able to spend time with their father in the environment which he loves. [Y] in particular is a great enthusiast for the outdoor life, an enthusiasm which was also shared by [Z] until recently.
In my view, in the absence of a strong view from any child concerned, it becomes more difficult to transplant an older child from an environment in which he or she is well established. [X] is now twelve and the twins will shortly be ten. They have a network of friends in Adelaide. In these circumstances, it is my view that the implementation of the radical solution proposed by Mr Hale becomes increasingly liable to be fraught with more difficulty, as the children grow older.
h) Aboriginality
This is not a relevant consideration in this case.
i) The attitude that each party has demonstrated to the responsibilities of being a parent
I am satisfied that each of the parties take their responsibilities as parents very seriously indeed. Their major deficits in this area stem from their poor relationship with one another, particularly the mother’s inability to ensure that [X], [Y] and [Z] benefit from having their father meaningfully involved in the children’s lives [section 60B(1)(a)].
Otherwise, I have no doubt that both Mr and Mrs H are capable of ensuring that the children receive adequate and proper parenting, which will assist the children to achieve their full potential as adults, emotionally, academically and otherwise [section 60B(1)(c)].
j) Family violence
k) Any family violence order
Family violence is not a significant consideration in this case. There are no relevant family violence orders applicable to the parties in this case.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The position advocated by the independent children's lawyer is based on the assumption that there will continue to be a significant level of difficulty between the parties and, as a consequence, a significant possibility that there will be further proceedings between them.
Ms Reed is not in favour of changing the children’s predominant place of residence. However, she would want, in effect, to place the mother on probation and see if her change of attitude is real and long lasting. If it is not, Ms Reed would want the opportunity to revisit her position, which is likely to involve further litigation.
As I am at pains to point out to all concerned, this is a difficult case, which provides no ready or obvious solution. The parties’ parenting relationship with one another is poor and likely to remain so. This is not a good harbinger for the avoidance of further litigation, whatever is the outcome.
It would be presumptuous of me if I thought I could predict the future of the family in this case. However, the father’s proposal is, in my view, a significant experiment. Such experiments very often have unforseen consequences.
The mother’s proposal entails what the children know and the maintenance of the current status quo. In my view, the more likely means of the family avoiding the deleterious consequences of litigation is if the children remain where they are and the mother is successful in implementing her intention to do better so far as the children spending time with their father in future is concerned.
The presumption of equal shared care responsibility
The orders of Faulks J did not formally allocate any level of parental responsibility for [X], [Y] and [Z] between the parties. His Honour’s orders were made prior to the inauguration of the Family Law Amendment (Shared Parental Responsibility) Act 2006, particularly the inauguration of section 61DA.
Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children [section 61B]. Pursuant to section 65DAE parents who share parental responsibility for their children, do not have to consult with one another about implementing decisions pertaining to their children, which are not major.
In essence, when [X], [Y] and [Z] are in their mother and father’s household, Mr Hale and Ms Hale respectively are each free to assume responsibility for day to day issues pertaining to the children untrammelled by the other. In the difficult circumstances which prevail in this case, it seems axiomatic that each of the parents should continue to parent the children, as he or she thinks fit, in terms of day to day management.
It is Mr Hale’s position that he feels excluded from being involved in significant issues to do with the children’s care, particularly so far as issues to do with health and education are concerned. The most concrete examples of this arise in respect of [Y]’s ongoing medical treatment and Mr Hale’s lack of knowledge regarding the children’s musical education and activities.
Before making any parenting order, I am required to presume that it is in the best interests of the child affected by such an order for his or her parents to have equal shared parental responsibility for that child. This is the legislatively mandated optimal outcome for any child.
It is my apprehension that none of the parties involved in this case have closely considered the application of the presumption in this case. Necessarily they have each concentrated on where and with whom [X], [Y] and [Z] should live and how they should spend time with the other parent concerned.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Given the parties conflicted history with one another, it would be naïve for me to believe that Mr Hale and Ms Hale could easily consult one another and reach a state of consensus about major issues to do with their children. Indeed, Mr Hale would say that his experience of
Ms Hale to date is that he is not consulted whatsoever about issues to do with the children’s education and health.
An essential prerequisite to any consultation between parents, about an issue to do with their child, is that both parents have knowledge about the issue concerned. In this case, regardless of the outcome, it seems clear that both parties, at the very least, would want and would feel entitled to know about [X], [Y] and [Z]’s medical and educational lives and have some input into shaping the salient decisions relating to them.
In my view, Mr Hale is entitled to feel aggrieved that he was not informed about the children’s musical education and details to do with [Y]’s treatment following her discharge from [W] Hospital. Is the fact that the parties are likely to experience significant difficulty in agreeing about very many issues to do with their children sufficient reason to absolve them of the responsibility to at least inform the other about these issues and attempt some form of consultation about them?
After all, it would appear to be grossly unfair to Mr Hale if he is excluded from having any form of parental responsibility for [X], when in his mind it is clear that it is the mother who has been instrumental in excluding him from [X]’s life, contrary to the ethos and provisions of the Family Law Act.
As I have already indicated, it is my view that both parties aspire to the optimal discharge of the responsibilities of being a parent. Each of them want to be a fully involved parent in the lives of [X], [Y] and [Z] and assist each of them to be fully resolved adults. In all the circumstances of this case, I think it would be unwarranted to place responsibility for making long term parental responsibility with one parent alone.
Accordingly, I have reached the view that the parties should have equal shared parental responsibility for [X], [Y] and [Z]. However, it is self apparent that it is neither likely to be in the children’s best interests nor reasonably practicable that the children should live in either an equal time or substantial and significant time arrangement.
Barring unforseen circumstances, the parties will continue to live in separate states separated by many hundreds of kilometres. Their ability to communicate with one another will remain compromised. In these circumstances, the court must make a decision about with whom of the parties the children should predominantly live.
Conclusions
I have come to the conclusion that the best interests of the children will be served if they continue to live predominantly with their mother in Adelaide. This has been a longstanding arrangement in which the children are well settled. In addition, this outcome will not involve the potential separation of [X] from her two younger siblings.
As these lengthy reasons for judgment show, I have found this to be a difficult and finely balanced case. As such, I have tried to consider and balance the various factors applicable arising under section 60CC to arrive at the result which I consider to be the most appropriate one in terms of the children’s best interests.
It is right that precedence should be given to the children having a meaningful relationship with their father but that consideration should not cause the court to disregard or down play the application of the other factors arising under the section.
In particular, I do not think an outcome which saw the children, particularly [Y] and [Z], living with their father in [D] would be one in accordance with their wishes. The children are close to their mother, who is their major source of emotional succour and has been for the vast majority of their lives to date. As a result, I consider that the children would suffer a significant level of emotional discomfort and quite possibly resentment at living separately and apart from her.
In my view, the children are not of an age when they could easily be transplanted from one parent’s home environment to another. I acknowledge that all three of the children know the father’s household in [D] well. However, the day to day bedrock of their lives is in Adelaide, where they attend school; have friends; and engage in a variety of extra mural activities.
It is my assessment that the mother has behaved improperly in respect of the discharge of her parental obligations towards [X], [Y] and [Z] in that she has consistently failed to provide the required level of nurture and support towards the maintenance of the children’s important relationship with their father.
These relationships would have been necessarily strained as a result of the satisfaction of the mother’s wish to move with them from [D] to Adelaide. In these circumstances, the mother’s obligations to the children was increased rather than lessened in its significance.
The mother’s behaviour has come about as a result of a combination of factors including: her pig headedness; her anger at the father; her dogged belief in the veracity of all complaints made by the children about their father’s household; her hypervigilance of the children; her fear of ultimately losing the children to the attractions of [D]; and not the least her inability to have an effective mode of communication with Mr Hale, to diffuse difficulties arising from the inevitable differences in their respective households.
However, the fault is not all with Ms Hale. There have been other factors at play, particularly involving [X] and her reaction to a number of incidents, which occurred at [D] and which could have been better handled.
It is clear to me that all three children, but particularly [X], have had some issues with adapting to the presence of Mrs H, [B] and [A] in their father’s household. This has been a major contributor to the impasse regarding the facilitation of the children’s holiday arrangements.
In any event, the purpose of these proceeding is not to punish or stigmatise Ms Hale for her past failings. Rather, it remains focussed on the children’s best interests.
In my view, it would represent too high a price for the children to pay, in order that they have the most meaningful relationship possible with their father, that they are removed from an environment in which they are essentially happy and doing well, particularly if there exist other, as yet untested mechanisms, by which their paternal relationships may be maintained.
I acknowledge that Ms Hale’s change of attitude is self professed and currently there is a surfeit of any extraneous evidence which demonstrates that it is both likely to be genuine and long lasting. Only the naïve would think it has not come about for any other reason than that Ms Hale has realised that her previous attitude and behaviour, both in and out of court, was likely to have the same result as the maiden voyage of the Titanic.[46]
[46] See Irish & Michelle (supra) at paragraph 204
I do not know if the mother has as yet succeeded in turning her own personal Titanic around. She needs to bear in mind that she is the captain of that particular ship and she alone can put it about. In this regard, she is being watched.
The mother is right to think that the court has closely considered changing [Y] and [Z]’s principal residence to their father’s household in [D], not withstanding the likely disruption such an outcome would constitute to the children. During the initial portion of the case, this seemed to be the only realistic option to ensure that [Y] and [Z], at least, had a meaningful relationship with their father given Ms Hale’s intransigence and the passive and active antipathy she demonstrated towards Mr Hale.
In my view, there are now other options available, which it is incumbent upon the court to explore to ensure that the children have an appropriate level of relationship with their father. These options have the endorsement of the independent children’s lawyer, Ms Reed and she advocates her continuing involvement with the family to oversee their implementation and hopefully success.
In addition, after his significant involvement with the family and being well aware of the difficulties arising for [Z] and particularly [Y], Dr Bollard, whose evidence I accept, is not in favour of a change of living arrangements for the children. Given his significant involvement with the family and level of experience, I believe that I would be imprudent to disregard Dr Bollard’s opinion.
Ms Hale is an intelligent person, who, in my assessment, remains capable of a change of attitude, notwithstanding her blinkered attitudes in the past. She has indicated a willingness to undergo counselling to assist her in shifting her attitude towards the children spending time with their father and to avoid them being contaminated by her powerful feelings. I acknowledge such counselling has being both recommended and ordered in the past, without success.
However, in my view, such an intervention is the most likely means of changing Ms Hale’s view. In addition, unlike in the past, Ms Reed will remain engaged and will oversee any process of such counselling.
Given my view about Ms Hale’s personality, which is steely and determined, I have grave reservations that a change in residence for the children, at this stage, will lead to an escalation in the level of conflict between the parties and, as a consequence, a greater enmeshment of all three children in this conflict. In my view, the overwhelming probability is that such an outcome will mean that [X] will never reach any level of rapprochement with her father, certainly not before she becomes an adult.
I can understand why Mr Hale has no great faith in counselling. After all, it has assisted him not one jot in terms of salvaging his relationship with [X]. However, in the case of [Y] and [Z], I do not share his pessimism. In my view, there is a greater degree of resilience, in their relationships with their father, than is the case with [X].
The counselling will be expensive but not prohibitively so, particularly if the mother is able is able to access the currently available medicare rebate. The mother must bear in mind that I do not regard such counselling as being extraneous window dressing. I will view seriously any suggestion that the counselling has not occurred, as envisaged or has been subverted in any way.
The impression I have is that Ms Reed will diligently pursue any obligation placed on her by the court. Certainly, this has been my experience to date and I am grateful for the assistance both she and
Mr Boehm have provided me.
I will accept her submission that she should remain involved in the case for a further period of 12 months. She has an important role of oversight. In particular keeping the mother to her word about her change in attitude.
For all these reasons, I do not propose to significantly change the order Faulks J, which where made in 2004 regarding the children’s living and school holiday arrangements. However, in order to ensure there proper implementation, I will make the additional orders proposed by the independent children’s lawyer, which have the mother’s ostensible approval.
I will also make an order that the parties have equal shared parental responsibility for [X], [Y] and [Z] to underline to each of the parties that they are entitled to have knowledge about and so oversight major decision making in respect of all three children.
No formal submissions were made about who of the parties should bear the costs of the children’s travel between Adelaide and Canberra. The impression I have is that the father is better resourced financially than the mother and it is he who has primarily paid for the children’s travel in recent times. In these circumstances, I do not propose to make a specific order about the issue.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding six hundred and eight (608) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 21 August 2009
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