Harvey and Harvey (No 2)
[2018] FamCA 1178
FAMILY COURT OF AUSTRALIA
| HARVEY & HARVEY (NO. 2) | [2018] FamCA 1178 |
| FAMILY LAW – CONTRAVENTION – Variation of parenting order consequent on contravention of a parenting order having been proved (four counts) – best interests of children – parents to attend upon experienced and privately funded psychologist for behaviour change therapy – children to be required to attend a psychologist if (and only if) father makes a fundamental change to his attitude to the mother and children |
| APPLICANT: | Mr Harvey |
| RESPONDENT: | Ms Harvey |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Marchetti |
| FILE NUMBER: | MLC | 2362 | of | 2014 |
| DATE DELIVERED: | 1 August 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 1 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cash |
| SOLICITOR FOR THE APPLICANT: | F D Mapleston |
| COUNSEL FOR THE RESPONDENT: | Mr Moisidis |
| SOLICITOR FOR THE RESPONDENT: | Berger Kordos |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Marchetti |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Altavilla Family Law |
Orders
IT IS ORDERED THAT:
1.All previous parenting Orders with respect to the children D HARVEY, born … 2003 (“D”), E HARVEY, born … 2005 (“E”), and F HARVEY, born … 2008 (“F”) (together “the children”) be discharged.
IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:
2.The mother have sole parental responsibility for the children.
3.For the purposes of order 2 herein before any long term decision is made in respect of the children (or any of them):
a. the mother shall advise the father by email of her proposal relating to the children (or any of them); and
b. if the father wishes to comment on the mother’s proposal (or if the father has any alternative proposal he wishes to make relating to the children (or any of them) on this issue) he shall, within seven (7) days after the date of the mother’s email, advise the mother by email (to the email address from which the mother sent her communication) of his views;
c. if the father does not respond by email as provided by order 3(b) herein, the mother shall be entitled to presume that the father does not wish to be further involved and she may decide the issue;
d. upon receipt of any comment or proposal by the father, the mother shall give consideration to the father’s views; and
e. after the mother has considered the father’s comments, she shall make a decision and advise the father by email or SMS of the outcome immediately after making that decision.
4.The children live with the mother.
IT IS FURTHER ORDERED BY THE COURT:
5.a. The father be at liberty to send letters, cards, and gifts to the children on the occasion of each of their birthdays, at Christmas, on other special days, and otherwise not more than once per month, AND for such purpose the mother shall facilitate delivery of such items to the addressee;
b. The children D and E spend time and communicate with the father at such times and on such conditions as may be agreed with the father, with such communication to be initiated by D and/or E.
6.The child F spend time and communicate with the father as follows:-
a. During school term periods:
(i)each alternate Thursday from the conclusion of school (or from after school care) until the commencement of school on Friday (or 3.30pm in the event such Friday is a non-school day);
(ii)each alternate weekend from the conclusion of school (or 3.30pm in the event such Friday is a non-school day) until the commencement of school on Monday (or the commencement of school (or 9.00am) on Tuesday in the event the Monday is a non-school day);
b. For one half of each of the school term holidays (being the Term 1, 2, and 3 holidays) and the long summer holidays as may be agreed in writing and failing agreement for the first half in even numbered years (AND it is noted that the 2018/2019 long summer holidays are deemed to fall within even numbered years) and for the second half in odd numbered years (AND it is noted that the 2019/2020 long summer holidays are deemed to fall within odd numbered years);
c. At Christmas from 4.00pm on Christmas Day until 5.00pm on Boxing Day in 2018;
d. From 10.00am on Father’s Day until 4.00pm on Father’s Day;
e. On Melbourne Cup Day from 9.00am until the commencement of school on Wednesday;
f. On the father’s birthday for a period of 4 hours as may be agreed between the parents in writing; and
g. At such further or other times as may be agreed between the parents in writing (including via SMS text message).
7.Notwithstanding any other provision within these Orders, the child F shall be in the mother’s care as follows:
a. For one half of each of the school term holidays (being the Term 1, 2, and 3 holidays) and the long summer holidays as may be agreed in writing and failing agreement for the second half in even numbered years (AND it is noted that the 2018/2019 long summer holidays are deemed to fall within even numbered years) and for the first half in odd numbered years (AND it is noted that the 2019/2020 long summer holidays are deemed to fall within odd numbered years);
b. At Christmas from 5.00pm on Christmas Eve until 4.00pm on Christmas Day in 2018;
c. From 10.00am on Mother’s Day until 4.00pm on Mother’s Day;
d. At such further or other times as may be agreed between the parents in writing (including via SMS text message).
8.That unless otherwise agreed in writing between the parents, the father be restrained from attending at the children’s school (or schools as the case may be) and/or any extra-curricular activities, SAVE that the father be permitted to attend F’s school for the purpose of parent / teacher interviews subject to:
a. the father providing not less than 48 hours written notice to the mother of his intention to attend at the school for such purpose; and
b. the school’s policy with respect to parent’s attendance.
IT IS FURTHER ORDERED BY CONSENT:
9.That for the purpose of F’s attendance at the community group, the mother be and is hereby restrained from attending at the community group during any period when F is otherwise in the care of his father pursuant to these Orders.
10.In relation to changeover pursuant to Order 6 above, save as otherwise agreed in writing between the parents:
a. where changeover at the commencement and conclusion of school, then it shall occur at F’s school; and
b. where changeover does not occur at the commencement or conclusion of school, the parents shall collect and deliver the child to the McDonalds Restaurant at Suburb Y, unless otherwise agreed in writing between the parents.
UPON THE FINDINGS OF CONTRAVENTION IT IS ORDERED:
10.That pursuant to sec. 70NED of the Family Law Act, each of the father and the mother forthwith attend participate and complete the Post Separation Program as recommended by Ms L, family consultant, AND each parent forthwith provide to solicitors for the other parent and to the ICL evidence as to the completion of such program or course.
IT IS FURTHER ORDERED BY CONSENT:
11.That each of the father and the mother forthwith obtain a referral from their treating General Practitioner pursuant to a mental health treatment plan for them to attend upon Mr HH (psychologist) for the purpose of therapeutic counselling and aimed at gaining greater insight and understanding with respect to their behaviours and the consequential effects, AND for such purpose the ICL be at liberty to forward to Mr HH copies of the following:
a. these Orders;
b. the Reasons for Decision dated 16 July 2018;
c. the Reasons for Decision of this day; and
d. the Family Report by Ms L (family consultant) dated 30 July 2018.
12.That for the purpose of Mr HH’s involvement with the parents, as provided in Order 11 above:
a. each parent be responsible and pay for any gap or out of pocket expense relating to their respective sessions with Mr HH; and
b. the ICL be at liberty to directly communicate and obtain information from Mr HH with respect to the parent’s attendance, participation, and progress in the therapeutic counselling.
13.That, subject to the father making a fundamental change to his attitude towards both the mother and the children, as discussed at paragraph 105 of the Family Report, each of the parents enable and facilitate the children’s attendance as directed by the independent children’s lawyer upon Mr HH (or such other psychologist or counsellor as may be nominated and directed by the independent children’s lawyer) for the purpose of family therapy sessions, AND for such purpose the father be responsible and pay for the cost of such therapy sessions.
PROCEDURAL ORDERS:
14.That each of the parents attend and participate in a Family Dispute Resolution Service mediation as may be arranged by the independent children’s lawyer (not before 30 April 2019) through Victoria Legal Aid.
15.That the father make file and serve an Application with respect to the parenting arrangements on or before 4 February 2019.
16.That the mother make file and serve a Response with respect to parenting arrangements on or before 18 February 2019.
17.That all extant applications be adjourned for mention immediately following the Family Dispute Resolution Service mediation event.
18.The independent children’s lawyer explain to the children the outcome of these interim proceedings as soon as practicable.
19.Certify for advocacy.
20.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
21.This matter otherwise be listed to a date to be fixed until such time as the Court is notified of the Family Dispute Resolution Service mediation date and the matter be listed to follow immediately upon conclusion of that event as arranged with my Associate.
IT IS DIRECTED:
22.That the report of Ms K dated 20 March 2015 be marked Exhibit “C1” and remain on the Court file in the section reserved for family reports.
23.That the report of Ms K dated 20 June 2014 be marked Exhibit “C2” and remain on the Court file in the section reserved for family reports.
24.That my reasons for decision be transcribed and when settled placed on the court file and a copy provided to the parties.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harvey & Harvey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2362 of 2014
| MR HARVEY |
Applicant
And
| MS HARVEY |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
EX-TEMPORE
This matter comes before me from another judicial duty list when, on 6 June 2018, I heard the father’s application to have the mother dealt with for 24 alleged contraventions of parenting orders. My findings in that respect are set out in the reasons for decision delivered on 16 July 2018 the case neutral citation for which is Harvey & Harvey [2018] FamCA 516.
The father filed two contravention applications, the first on 7 May 2018 and the second on 23 May 2018. For the purpose of the hearing of the contravention applications I consolidated the applications and the counts were listed sequentially, numbered and became Exhibit “C1” of the proceedings to which all parties received a copy. The contraventions as numbered were:
1.The respondent without reasonable excuse refused to allow the applicant to spend time with the children D, E and F Harvey;
2.The respondent refused to allow the applicant to spend time with the child D;
3.The respondent refused to allow the applicant to spend time with the child E;
4.The respondent refused to allow the applicant to spend time with the child D;
5.The respondent refused to allow the applicant to spend time with the child E;
6.The respondent refused to allow the applicant to spend time with the child E;
7.The respondent refused to allow the applicant to spend time with the child E;
8.The respondent refused to allow the applicant to spend time with the children;
9.The respondent refused to allow the applicant to spend time with the child D;
10.The respondent refused to allow the applicant to spend time with the child D;
11.The respondent attended an extra-curricular activity during the Husband’s time with the children without consent;
12.The respondent attended an extra-curricular activity during the Husband’s time with the children without consent;
13.The respondent attended an extra-curricular activity during the Husband’s time with the children without consent;
14.The respondent attended an extra-curricular activity during the Husband’s time with the children without consent;
15.The respondent attended an extra-curricular activity during the Husband’s time with the children without consent;
16.The respondent refused to allow the applicant to spend time with the child E;
16A.The respondent without reasonable excuse refused to allow the applicant to spend time with the children D and E Harvey;
17.The respondent attended an extra-curricular activity of the children without agreement;
18.The respondent refused to allow the applicant to spend time with the child D;
19.The respondent refused to allow the applicant to spend time with the child E;
20.The respondent refused to allow the applicant to spend time with the child E;
21.The respondent refused to allow the applicant to spend time with the child D;
22.The respondent attended an extra-curricular activity of the children without agreement;
I have found the alleged contraventions proved in terms of counts 15, 16A, 17 and 22. In the face of an order prohibiting her attendance at activities of the children (or on of them) which fall in the father’s time, the mother assumed a position as a senior member of a community group of which F is member and on three occasions attended in that capacity during the father’s time. Otherwise, the mother allowed D and E to go skating in preference to returning to the care of the father when they should have done so.
All of the other counts were dismissed.
The mother has not previously been found to have contravened an order. Therefore, this is the first occasion.
Part VII – Division 13A of the Family Law Act 1975 (“the Act”) distinguishes between serious and less serious contraventions. I would regard these as less serious contraventions. That said, it is a serious case for the children and for the parents because it focusses attention on a high degree of dysfunction and a toxic level of parental conflict. However, in terms of the contraventions, I could not regard the mother’s behaviour as showing “a serious disregard for her obligations under the primary order” within the meaning of s 70NAE(4) of the Act.
Section 70NEA(2) of the Act provides that if the mother has not previously been found to have contravened an order, as is the case here, the court may impose all or any of a number consequences which are enumerated in s.70NEB. These include:-
(a)Make an order requiring either or both parents to attend a post separation parenting program;
(b)Adjourn the proceedings to allow either or both to make a parenting application to discharge, vary or suspend the primary order or other order;
(c)Require the mother to enter into a bond in accordance with s.70NEC;
(d)Impose a fine;
(e)Order that the mother pay the father’s costs.
In this case a bond or a fine would pour fuel on the fire and do nothing to benefit the three children. In fact, either would be likely to distance D, E and F from the father.
It was an error of judgement by the mother to join F’s community group in a leadership role. The girls were already not attending all of the time they were required to spend with the father so the impact of the mother’s presence at F’s extra-curricular activity was extremely provocative. To the extent that the mother relied upon the father having once taken the girls to a skating venue as consent to their involvement in skating as an extra-curricular activity was disingenuous. The most significant aspect of the contravention, however, was to shine a light on the highly dysfunctional relationship that E and D have with the father and how that is best addressed.
The Court has had the benefit not only of a report of Ms L dated 30 July 2018, but also of her input and views of the matters to which the parties were able to agree and those matters for which the independent children’s lawyer advocated but one or other of the parties did not agree.
Ms L’s report is forthright, clear, well-reasoned. Her written and oral evidence has been of assistance to me and I accept it.
Ms L’s report has enabled the court to receive the views of the children as to outcomes. The earlier social science reports gave insights into the problems within the family but Ms L was able to invite the children to express views which have been demonstrably taken into account by the parents, a valuable exercise for these children who are, after all, the people upon whom the parenting orders impact upon most.
As far as the contravention proceedings are concerned, the most appropriate consequence for the mother is one which will educate her and provide her with insights into her parenting.
I earlier indicated that I thought that the father was in significant need of education and behaviour change therapy in relation to the children. I am pleased to say that the father came to that conclusion himself and that was communicated through his representative very early today. The parties have agreed to the terms and identity of the person to be the therapist for the mother, the father and, if any therapy is to be done for the children, for the children in due course. I will say something about the timing of therapy for the children in a moment.
Section 70NBA of the Act provides that, where a contravention application is brought in respect of an order, the court may vary that order. The parties have drawn a minute of “consent order” as between the mother and the independent children’s lawyer to which the father agrees save for in two respects which I will outline below.
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). In varying a parenting order:-
a)The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
b)When making parenting orders, the Court is to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
c)For the avoidance of doubt, s 70NBA(2) does not apply because I do not regard this as a more serious contravention.
Section 61DA of the Act provides a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents. Section 61DA is engaged whenever the court considers making a parenting order. Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE). Here the parents have agreed to the mother having sole parental responsibility.
Section 60CC(2)(a): the primary consideration of the benefit to the children of having a meaningful relationship with both parents
The children have a meaningful relationship with the mother.
The father and F have a viable relationship which F enjoys. It is meaningful.
The relationship between the father and his daughters is negative and tenuous. It does not support the regular and frequent spend time and communication provisions of the primary order. Section 60CC(2)(a) requires a prospective evaluation of the extent to which an ongoing relationship between the girls and the father will be of benefit to the girls. Without significant change on the part of the father and some subsequent softening of the girls’ attitude to him, a meaningful relationship between the girls would not, on balance, be beneficial. The parents have, sensibly, come to the realisation that the girls cannot be forced to see the father and that any meaningful relationship has now to be built from the ground up.
Section 60CC(2)(b): the primary consideration of protecting the children from harm
I assess the conflict between the parents as toxic and deleterious to the emotional wellbeing of the children. I include F in those affected because, notwithstanding his meaningful and workable relationship with the father, he is aware of how the father has treated his sisters, that he is treated differently and the stresses under which his mother parents.
Through the family consultant’s report, the mother and the girls are expressing a clear fear of physical or other reprisals from the father, even in the context of being relieved from seeing the father regularly. That is not my sense of him but my experience is brief. I make no finding about the reasonableness of the fears but the tenor of the family report indicates that the fears are genuinely held. The fears of the mother and each of the girls must be taken into account and respected as being genuine; they cannot be discounted.
Section 60CC(3) – additional considerations
Given that disposition of the matter is largely agreed and the parties have drawn minutes of orders, few of the features prescribed as “additional considerations” under s 60CC(3) of the Act are influential in my determination of what will promote the children’s best interests over and above what I have already stated. The girls desire not to see their father at this time but there is evidence from the family consultant that there is some positive foundation upon which to build and, if handled carefully, their attitude may well change. The steps which the father has already taken are significant and, hopefully, the girls will be led to recognise this is so.
The Disputed Aspects of the Proposed Orders
Turning now to the two aspects upon which the father does not agree in the orders proposed by the other parties.
The first relates to the ability for him to contact D and E pursuant to these interim orders. The father wants to be able to contact the girls and invite them to see him. I accept that the father is motivated by a desire to show the girls that he is interested in them and wants to disabuse them of any feelings that he may have rejected them. However, the evidence of the family consultant, as to the views of the girls, satisfies me that the girls should have, and will appreciate, having some autonomy over when they, or either of them, see the father. Accordingly, the orders that I make are 5(a) and (b):-
5.a. The father be at liberty to send letters, cards, and gifts to the children on the occasion of each of their birthdays, at Christmas, on other special days, and otherwise not more than once per month, AND for such purpose the mother shall facilitate delivery of such items to the addressee;
b. The children D and E spend time and communicate with the father at such times and on such conditions as may be agreed with the father, with such communication to be initiated by D and/or E.
The scheme is that the father is not to contact the children unless provided in these orders, other than by cards, letters or gifts. In relation to D and E, he is to wait for them to initiate any other form of contact with him. That is, he is not to send texts or emails or make telephone calls to them. It is very important that he not pass messages through the child, F. It would be unfair on all children to do so. He is to wait until D and E want to see him and make that known to him in some way. They are aged 13 and 15 respectively. I have no doubt that the girls will be able to contact the father as and when they choose to do so. However, if they do not then he does not contact them for the life of this interim order. This accords with the evidence of the family consultant, Ms L:
In relation to that proposal, Mr Harvey has concerns about the prohibition on him initiating communication with D and/or E. Would you think it might be in the children’s best interests if he were able to initiate communication with D and/or E provided it was reasonable communication, perhaps, in terms of volume of communication. Do you think that that could be in the best interests of the children that he be able to, in a prescribed way, communicate with them to initiate communication?‑‑‑I think it – in – on an interim level, probably not. From what I’ve seen with his communication with the children, that is quite authoritative – authoritarian. He is quite direct. And there is pressure on the children or of him telling them that they’re doing the wrong thing. I would be concerned that he may not, I guess, in the heat of the moment, know exactly what to say and that could – could create pressure and – and, I guess, halt the process. So I think the communication should come from the children on an interim basis ‑ ‑ ‑
Right. And ‑ ‑ until he has had appropriate therapy.
The next matter that the father does not agree to is his attendance at the children’s schools. The children attend three different schools. Paragraph 8 provides that the father can go to F’s school for the purpose of parent-teacher interviews, subject to providing the mother with notice of his intention to attend and observing the school’s policy with respect to parents’ attendances. It may be that the school has a policy in cases of conflictual parental relations that there be two interviews. The operation of the order in relation to E and D is that the father is prohibited from attending their respective schools or places of extra-curricular activity “unless agreed in writing between the parents”. On questioning by me, counsel for the father recognised that the father could attend at the girls’ school with the mother’s written consent. That seems to me to be appropriate. I would not, on the evidence before me, consider it to be in the girls’ best interests for the father to attend the school over the objection of the mother or without her prior written consent. I am satisfied that the order sought by the other parties is in the best interests of the girls, at this interim stage, and will make it.
Now, if I could address the context within which the interim orders are made. These proceedings comprise financial and parenting matters. The financial matters are in abeyance, pending a special leave application to the High Court, which is apparently set down for hearing on 10 August 2018.
One of the aspects of these orders is that the parents have accepted, to a certain extent, the family consultant’s recommendation that the children, E and D, get some respite from what has been a most upsetting and conflictual 12 months or more between them and the father.
The parents have secured treatment for themselves with Mr HH, psychologist, and that, I understand, can start in the next fortnight. I do not know how regular that treatment will be. There will be an expense involved. Expense might be something which impacts upon the mother’s ability to attend. She is paying the children’s school fees.
The involvement of D and E in Family Therapy
Paragraph 13 of the minute of proposed order provides that “subject to the father making a fundamental change to both his attitude towards the children and their mother (as discussed paragraph 105 of Ms L’s report) each of the parents enable and facilitate the children’s attendance as directed by the independent children’s lawyer upon Mr HH (or such other psychologist or counsellor as may be nominated and directed by the independent children’s lawyer) for the purpose of family therapy sessions and for such purpose the father be responsible for and pay for the cost of such therapy sessions.”
I want to congratulate the parties and those who advised them on the agreed outcome at this stage of the proceedings. I do not want to diminish their effort and accomplishment and I recognise the endorsement of Ms L of the father’s preparedness to participate in behaviour change therapy as an extremely positive step. However, I do want to record some of my impressions in the case and, in particular, aspects of the father’s behaviour which I have identified must change before the children or any of them are required to undertake any family therapy with the father or at all. It is not appropriate for the Court or the parents to pathologise the children and say it is the children who require treatment. The children may require some counselling support, but those who have to change their behaviour are the parents and, of both parents, it is the father most of all.
It is important to bear in mind the girls’ experience up until recently.
When the father perceived that the girls would not see him, he blamed the mother. There was nothing he could do to the mother directly, but I am satisfied that he took out his ire on the children which, indirectly, punished the mother and was directly and unreasonably punitive to his daughters. Because of the father’s actions, the children and the mother were prevented from entering Country H for a family Christmas holiday at the end of last year. When the contravention proceedings ran before me on 6 June 2018 that was still a fresh wound for the family. There was also an incidence where I am satisfied that the father sought to punish the children in some way by not permitting their mother to take them to an international sporting event. However, that did not eventuate.
The father’s punitive actions in relation to D included trying to withdraw her from N School and to withdraw her from participation in her swimming squad in retaliation for her not wanting to see the father. In relation to E, in retaliation for her not wanting to see him he refused to pay for her New Zealand school tour and made the mother reasonably apprehend that he would refuse to allow E to travel outside of Australia and this necessitated a further application by the mother to the Court. The father’s conduct went well beyond seeking to express disapproval or impose limits on the actions of the children and/or the mother of which he disapproves. The father was deliberate and considered in his imposition of sanctions against the children. He selected sanctions which he considered would have the effect of causing utmost distress to the child. But those sanctions also diminished the opportunities available to the child to exploit her potential, which the father knew had been identified and was being nurtured and developed.
He did so in circumstances that the affected daughter could not help but appreciate that the father was stunting her development in a field in which she was regarded as talented. The family consultant characterised the father’s action as indicative of lacking insight. I would, with respect, characterise the father’s actions as callous, vindictive and cruel. I accept that he may now have some insight into his actions. If it be the case that the father was at the time attempting to exact revenge on the mother through the children and the children’s anguish was an unintended consequence of him giving the mother a lesson, it is even worse.
Finally, I have referred to the father’s actions vis a vis the daughters. The son, F, is much less affected. By sparing F, the father also potentially drives a wedge between F and his sisters. Behaviour which unduly distinguishes between the brother and the sisters is not helpful for anyone concerned.
One of the most vexing aspects of this case is at what stage the girls should be required to attend any therapy. They are now aged 13 and 15. They are getting to the age when it may not be appropriate for the Court to be ordering them to undergo therapy.
As the orders were currently drawn, I apprehended that the therapy might occur some time before the end of this year and that seemed far too soon. Ms L, family consultant, gave the following evidence:-
I agree that the girls do need some respite. I think underneath they do love their father and they’re open to a relationship with him so long is that is not pressured. So it – it’s really fundamentally up to the father and how – how his – his therapy goes. So it’s – it is difficult to give that a time in terms of the children without knowing how his therapy is going. He may make good progress by November but he may not have, so ‑ ‑ ‑
Well, how likely is it in your experience that people’s behaviour changes?‑‑‑That, again, is difficult. The fact that the father, by my understanding, has acknowledged a willingness to participate in therapy, I think that is a good sign. Not many parents do acknowledge that. I think that is a – an extremely positive step. Whether that continues through the therapy process is difficult to determine. But behaviours can be ingrained and – and if he – and if he ultimately doesn’t perceive that the issue lies with him then there may be limited scope for change. But that’s difficult to determine and each individual can be different.
[…]
So what sort of timeframe would you be expecting? I know you can’t define it but it just seems to me that four months is nothing?‑‑‑I think you would be looking at minimum six months, your Honour, to allow some – some time – unless the girls initiate their own communication with him. But I think there has been a significant amount of pressure on them that they need to feel comfortable that that’s not going to re-emerge any time soon. But I think, on the other side, something like 12 months to 15 months may be too long for them and that may hinder that relationship or reunification.
[…]
MR CASH: Ms L, in relation to that issue that’s alive in this case as to when it might be appropriate for the two girls to engage in therapeutic counselling, you mentioned that a period – I can’t recall the amount of months you said but a period of over 12 months to 15 months may hinder reunification; have I paraphrased ‑ ‑ ‑
HER HONOUR: That’s right. More than – about six months or more would be all right but less than 12 to 15 months.
MR CASH: Thank you, your Honour. I apologise for not – for misstating that.
Is your concern in relation to that – what is it, in your mind, that may hinder reunification if there’s a period of over 12 months between the father engaging in counselling and the children engaging in family therapy?‑‑‑I guess the difficulty there is the issues are quite significant for the girls and if they feel that their life has settled significantly and there are no issues, would that then – and that – and that they’re getting on with their life and that they’re happy – would they be conducive of wanting to reintroduce the father because their history of – or currently of him is that he is unsettling, that he – that he does create difficulty. So I guess my concern would be, the longer you leave it, the more they could distance themselves enough to say I don’t want anything to do with him ever again. That would be my concern but that’s contingent on the father’s therapy being successful as well.
I note that the evidence of the family consultant was that something in excess of six months would be appropriate, but my suggestion of something in the vicinity of 12 to 15 months would not be appropriate.
The family consultant was concerned that a gap of appreciably more than six months or anything approximating 12 to 15 months might provide E and D with too much respite and leave them disinclined to approach the father again or become engaged with him. I accept the views of the family consultant.
The orders, as currently made, do not prescribe a time for the girls to be introduced to any therapy. The precondition is, obviously, that the father would by then be assessed by Mr HH and the independent children’s lawyer as having made a fundamental change to both his attitude towards the children and their mother, as discussed in Ms L’s report. If that does not occur, the girls will not be undergoing any form of therapy. If it does occur, then they will be invited to the therapy and their father will pay for it. It seems to me, though, that that will not be prior to the expiration of six months from today.
Future Direction of this Case
To the extent that it is necessary to do so, I give the parties leave to make oral applications for these orders. I do not want them to spend any more money putting them in the form required by the rules. The orders provide that on or before 4 February 2019 the father file and serve an amended application or response (as the case may be) setting out with precision the parenting orders he seeks. The mother is to do likewise by 18 February 2019. The independent children’s lawyer will arrange for an FDRS event to occur in April 2019. I otherwise adjourn the matter for mention before me to follow immediately upon the conclusion of the FDRS event. If that is not convenient, my associate will arrange for another day, but I make provision for it to be on the same day in the hope that the parties will minimise their legal costs of attending before me.
Otherwise, the independent children’s lawyer is tasked with explaining the outcome of these interim proceedings to the children. In so doing, I hope that the independent children’s lawyer takes the opportunity to tell the children that these are orders and a resolution of the matter to which both of their parents largely agreed, rather than have imposed upon them because that is a very beneficial aspect of the outcome.
In his written application, the father sought that the mother to pay his costs and to compensate him for allegedly wasted airfares. However, costs were not pressed so I make no order in that regard.
I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 1 August 2018.
Associate:
Date: 27 August 2018
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