HERMANN & VICTOR
[2009] FamCA 1266
•18 DECEMBER 2009
FAMILY COURT OF AUSTRALIA
| HERMANN & VICTOR | [2009] FamCA 1266 |
| FAMILY LAW – CHILDREN – with whom a child spends time – long running proceedings – where the parties have an intensely acrimonious relationship – whether the father’s time should be increased from four nights to six nights per fortnight – how Easter periods are to be shared by the parties – where the parties were able to reach agreement with respect to all other parenting issues – consideration of s 60CC factors – where the parties have agreed to equal shared parental responsibility – where the evidence does not support the children spending equal time with each parent – current regime to continue with the addition of occasional individual times – orders made as to time with the children at Easter | |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA & 65DAA | |
| APPLICANT: | Mr Hermann |
| RESPONDENT: | Ms Victor |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
| FILE NUMBER: | ADF | 3753 | of | 1999 |
| DATE DELIVERED: | 18 DECEMBER 2009 |
| PLACE DELIVERED: | ADELAIDE |
| PLACE HEARD: | ADELAIDE |
| JUDGMENT OF: | BURR J |
| HEARING DATE: | 9 APRIL 2009, 19, 20 & 21 OCTOBER 2009 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Tinning |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Reed Legal Services Commission |
Orders
That save and except for the Orders made herein by consent on 21 October 2009, all previous current parenting Orders in relation to the children J born … July 1998 and P born … March 1999 be and the same are hereby discharged.
That in addition to the aforesaid consent Orders made on 21 October 2009, the said children spend time with the father as follows:-
(a)each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (extending to the commencement of school on Tuesday in the event that the preceding Monday is a public holiday);
(b)each intervening Wednesday from the conclusion of school until the commencement of school on the immediately following Thursday;
(c)with J, from 4.00 pm on the middle Saturday during each of the Term 1 and Term III school holidays until 4.00 pm on the immediately following Sunday;
(d)with P:-
(i) during the Term II school holidays, from 4.00 pm on the middle Saturday until 4.00 pm on the immediately following Sunday; and
(ii) during the Christmas school holiday period, from 4.00 pm on 17 January until 4.00 pm on 18 January.
That paragraph 2(a) and (b) of these Orders be suspended during all school holiday periods and shall recommence on the first weekend of the new school term.
That on the Easter long weekend where such weekend does not form part of any school holiday period, the said children shall spend time in the care of the parties as follows:-
(a)with the father, from 10.00 am Maundy Thursday until 4.00 pm Easter Monday on the first such occasion and each alternate occasion thereafter; and
(b)with the mother, from 10.00 am Maundy Thursday until 4.00 pm Easter Monday on the second such occasion and each alternate occasion thereafter.
That leave be granted to the Independent Children’s Lawyer to provide a copy of these Reasons for Judgment to Mrs A.
That the appointment of the Independent Children’s Lawyer be discharged.
That all applications be removed from the current pending list.
IT IS NOTED that publication of this judgment under the pseudonym Hermann & Victor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 3753 of 1999
| MR HERMANN |
Applicant
And
| MS VICTOR |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The applications
The parties met in 1995 when the father was some 41 years of age and the mother 18 years of age. They formed an intimate relationship from which two children were born, namely J born in July 1998 and P born in March 1999. Thus J is a little over 11 years of age and P 10 years of age.
The parties separated for the first time in June 1999, shortly after P’s birth and have effectively been in disputation over their children ever since. These two children have been forced to endure an intensely acrimonious relationship between their parents for essentially the whole of their lives. At various points in time since proceedings were first initiated in this Court in July 1999, Orders have been made, including final Orders. Invariably those arrangements suffered a very short life span and the parties again became embroiled in bitterly contested proceedings.
The dispute which they are now unable to resolve as between themselves, and which I have therefore been asked to determine, is as to whether or not the father’s time should be increased from spending four nights per fortnight with his children, to six nights. That is the father’s application. The mother is opposed.
Chronology
The father is now some 55 years of age and the mother 32 years of age. The most recent Orders made by the Court specifying with which party the children are to live and at which times, were those Orders made by Senior Registrar Kelly (as she then was) on 27 July 2006. They provide, inter alia, that the children are to live with the mother and spend time with the father from Friday after school until the commencement of school Monday (or Tuesday in the event that the Monday is a public holiday) in each alternate week and on the Wednesday night in the intervening week. Thus the children spend four nights per fortnight with their father. Whilst not made by consent, those Orders were not opposed by the parties and were to operate until further Order.
Approximately a year later though the father filed an amended Application seeking that the children live with the parties on a week about basis. The mother responded by seeking Orders that the children spend time with the father on alternate weekends only. Various other Orders were sought by the parties in relation to school holidays, special occasions and for injunctions.
The parties’ enthusiasm for litigation continued unabated and they included contravention proceedings in this Court taken by the father and assault proceedings instigated by the mother in the Adelaide Magistrates Court.
Thanks to their parents and the disputation between them, the children have had to suffer a number of interviews by Child Protection authorities, police, expert psychologist Ms T, Child and Adolescent Mental Health Services (“CAMHS”), the Department of Child Youth and Family Services (“Families SA”) and psychologist Ms S. I may even have missed a few.
In October 2008 the father was found not guilty of an assault upon the mother’s partner, Mr D, but guilty of one count of assault upon the mother. However, the learned Special Magistrate considered that the offence had been committed within the context of an acrimonious family dispute, that the assault itself constituted no more than one push and on that basis recorded no conviction and fined the father $200.
The criminal proceedings thus having been concluded in the Adelaide Magistrates Court, the parties continued to conduct their acrimonious and non-child focussed dispute in this Court.
In October 2008 the father again amended his Initiating Application to now seek Orders that both children live with him four nights per fortnight and then each of the children for one additional night per fortnight without the other child being present. Thus his application is that each child spend five nights per fortnight in his care to the effect that he would have the care of both or one of the children for a total of six nights per fortnight. The mother remains opposed to any alteration to the Orders made in July 2006.
It has not been possible to resolve the proceedings in this Court at an earlier time due to the criminal assault proceedings needing first to be resolved. For that reason three attempts were made by me to conduct a 1st Day of hearing namely on 27 October 2008, 3 December 2008 and 10 March 2009. Finally the 1st Day of hearing was concluded on 9 April 2009 and the Conclusion hearing was conducted on 19, 20 and 21 October 2009.
Whilst they failed to seize every earlier opportunity to achieve some resolution of their dispute, it is of some credit to the parties that they were able to resolve all other parenting issues between them save as to:-
12.1.how many nights the children are to spend with the father; and
12.2.how the children’s time during Easter periods is to be divided between their parents.
The balance of the matters, whilst at the eleventh hour, were agreed between them on the last day of hearing, namely 21 October 2009, and on that date I made comprehensive Orders by consent in the following terms:-
1.That paragraphs 1, 2, 3(iii), (v) [sic], (v), (vi), (vii), (viii) and (ix), order 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Orders made 27 July 2006 be hereby discharged.
2.That paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Orders made 30 June 2003 be hereby discharged.
3.That the parties have equal shared parental responsibility for the children [J] born […] July 1998 and [P] born […] March 2000.
4.That in the second week of each new school term and in the last week of Term IV each year the parties use their best endeavours to arrange either a telephone conference or exchange of email communication regarding the progress of the children and any issues or concerns that may present regarding the children.
5.That the children shall spend time in the care of the parties as follows:-
(a)during each of the end of Term I, II and III school holidays:-
(i) with the father, from the conclusion of school on the last day of the school term until 4pm on the middle Saturday of the holidays;
(ii) with the mother, from 4pm on the middle Saturday of the holidays until the commencement of school on the first day of the new school term;
(b)during each Christmas school holiday period:-
(i) with the father from 11am on 25 December until 4pm on 17 January;
(ii) with the mother at all other times;
(iii) at such varied times on 25 December as is agreed between the parties in writing;
(c)on the child [J’s] birthday on […] July each year in the event same falls on either a Saturday or Sunday or a non-school day and provided that the children are not absent interstate, then the children shall spend time with the parent who does not ordinarily have the care of the child on that day between 3pm and 7pm;
(d)on the child [P’s] birthday on […] March each year in the event same falls on either a Saturday or Sunday, then the children shall spend time with the parent who does not ordinarily have the care of the child on that day between 3pm and 7pm;
(e)on Father’s Day, with the father from 10am until 5pm;
(f)on Mother’s Day, with the mother from 10 am until 5pm.
6.That the parties each be at liberty to contact the children via the children’s mobile telephone at all reasonable times provided that such calls do not occur after 8pm.
7.That the parties use their best endeavours to ensure that the children’s mobile telephones are charged and that the children are in possession of same.
8.That the parties do facilitate the children telephoning the other parent or any member of the other parent’s extended family should they express a wish to do so provided such calls are not made later than 8pm.
9.That each party use their best endeavours to facilitate the children spending time in the care of the other parent for the purpose of attending any significant family celebration or event.
10.That the parties use their best endeavours to facilitate the children’s attendance at any extracurricular activities such as music lessons and sporting commitments.
11.That all handovers that cannot take place at the children’s school shall occur inside the [S] Police Station with the mother to be at liberty to have her partner Mr [D] attend or such other representative.
12.That the party delivering the children remain inside the Police Station for at least five minutes after the other party or their agent departs with the children at such handovers.
13.That the mother be and is hereby restrained by injunction:-
(a)from being present at the children’s school at handover times until such time as her eldest child to Mr [D] commences attending school;
(b)permitting the children to spend time with the maternal grandfather unless supervised by her;
(c)from changing the children’s enrolment from [S] Primary School for the balance of the children’s primary school education without the consent of the father or further order of this Honourable Court;
(d)allowing or permitting Mr [D] to approach or attempt to communicate with the father on school premises or at any school function unless expressly invited by the father to do so.
14.That the father be at liberty to obtain information from any school at which the children are enrolled as to the children’s academic, social, musical and sporting progress, including but not limited to school reports, parent teacher newsletters and school notices provided any such information is obtained at the father’s sole expense.
15.That the mother do authorise any school at which the children are enrolled to facilitate the release of the information referred to in paragraph 14 aforesaid to the father.
16.That both parties be at liberty to attend school events to which parents are ordinarily invited provided that the parties endeavour to arrange separate appointments with the children’s teachers on parent / teacher night.
17.That the parties be restrained and an injunction be granted restraining each of them from:-
(a)criticising, denigrating or abusing the other party directly or in the presence or hearing of the children;
(b)physically disciplining the children or allowing any other person to do so;
(c)approaching or attempting to communicate with the other party on school premises or at any school function unless expressly invited by the other party to do so;
(d)changing the children’s principle [sic] place of residence from the Adelaide Metropolitan Area without the written consent of the other party or further order of this Honourable Court.
18.That the parties do advise the other as to their current residential address and telephone numbers and do advise within twenty four hours of any change thereto.
19.That the parties be at liberty to communicate with each other regarding issues concerning the children by SMS text message or email between 9am and 8pm.
20.That in the event of either party intending to travel interstate with the children, they do provide to the other party not less than twenty eight days prior written notice of their intentions to so travel, with such notice to provide the date of departure and date of intended return, the addresses at which the children will be residing and telephone numbers at which the other party is able to telephone the children at all times during the course of intended travel.
21.That the Order made on 9 October 2009 be varied such that the father be the parent authorised to attend to the enrolment of the children at the [S] High School.
The evidence
Each of the parties referred me to the Affidavits upon which they relied and gave oral evidence in support of their respective positions. Neither called evidence from any other witness. The Independent Children’s Lawyer called only one witness namely Ms A, an expert psychologist. Ms A’s two reports of 20 July 2006 (“first report”) and 21 April 2008 (“second report”), were also acknowledged as being in evidence before me.
Both parties represented themselves. Consequently, as is the case in matters where the parties are self represented, I had a far greater opportunity to assess the parties than would ordinarily be the case if they were represented. The evidence of neither party was satisfactory. Their respective versions of events were clearly coloured by the intensity of their ill-feeling for one another and the keen desire to establish to the Court’s satisfaction that in most respects they were blameless and that the problems visited upon the children and the problems with their relationship, were the fault of the other party. Consequently I am unable, as a matter of general observation, to prefer the evidence of one over the other. I thus identify any relevant issues of credit within my consideration of the specific issues requiring my determination.
The law
The findings that I make in this matter must reflect the best interests of J and P as the paramount consideration (Section 60CA of the Family Law Act 1975). In making that determination I am guided to the provisions of Section 60CC which is divided into “primary” and “additional” considerations.
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Despite the intense bitterness of their dispute and the clear antipathy which each bears to the other, neither party suggested that the children should not enjoy the opportunity of having a meaningful relationship with both parents. It is the mother’s case that such a meaningful relationship can be maintained by a continuation of the existing regime whereas the father takes the view that a meaningful relationship can only be enjoyed by the children with him if he has a greater opportunity to spend time with them and a greater opportunity to be engaged in their school lives and their educational and social development.
Perhaps somewhat surprisingly, despite having to be both unwilling spectators and participants in the outrageous dispute between their parents, both children have professed and indeed appear to enjoy, a meaningful relationship with each of the parents. Each child has expressed a love for both of their parents and each has indicated that they want to spend time in the care of each parent. However, they have indicated a clear preference to spend more time at their mother’s home than at their father’s. Such was made clear by the evidence of Ms A. I explore the nature of the relevant relationships later in these reasons when dealing with the additional considerations set out below.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
This is the issue which requires most of my attention. The children have known no other relationship between their parents other than one characterised by acrimonious communication, bitter disputation, serial allegations, deliberate or unwitting conduct which has had an undermining influence upon the children’s relationships with their parents, criminal assault proceedings, contravention proceedings, a number of interviews with a variety of experts, unwelcome intrusion into their school lives, inappropriate remarks made by one parent as against the other parent in their presence, ill-advised intervention by the mother’s partner Mr D, inappropriate discipline by the father and overt displays of a lack of respect for the important role of the other parent in their lives.
All of the evidence suggests that it will be impossible to frame any Orders that can shield the children from such continuing conduct by their parents into the future. It would seem that the best I can do is to endeavour to minimise the harm, rather than eliminate it. Excising one parent from the lives of the children is not the answer. The children love each of their parents. They just wish that their parents would stop fighting thereby enabling the children to enjoy full and uncomplicated relationships with each of their parents and realize their own full potential.
As I said earlier, it is of some credit to the parties that they were able to agree essentially all other parenting issues between themselves which resulted in me being able to make consent Orders on those matters on 21 October 2009. However, my optimism that the parties finally understood the serious impact of their acrimonious relationship upon their children, was somewhat short lived as their final addresses indicated a continuing intensity of ill-feeling that suggests that the children are set to endure a good deal of suffering yet.
Additional considerations
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
The children are opposed to any change in their present care arrangements. They wish to retain their present routines. They do not wish to spend any further nights per fortnight at their father’s household. Their views have remained consistent in that regard over a lengthy period of time. These views emerge clearly from the two Family Reports and the oral evidence of Ms A.
By way of example, at pages 14 and 15 of her first report, Ms A records in relation to J:-
“When asked, stated that she was unsure as to whether she wanted any changes to the current contact arrangements. She then spontaneously added, ‘I just think it should be even.’ However, she also indicated that, if she had to make a choice, she would ‘choose Mum’. In relation to this, she said, ‘Mum has had me a long time and she knows what to do.’
When asked, she reported that she felt ‘mostly safe’ when with her mother. She spontaneously added, ‘I feel a bit more safe at Mum’s house – I think’.”
P was recorded as expressing similar views (page 16 of Ms A’s first report):-
“When asked, [P] indicated that he did not want any changes to the current contact arrangements. When asked if he wanted more time with his father, he said, ‘About the same’.”
At that time, the children were 8 years and 7 years of age respectively. Almost two years later the children are recorded as expressing similar views, namely to the effect that they did not want any change in the living arrangements. In her second report, at page 3, Ms A records:-
“[J] was asked what she understood was the reason for attending the interview. She commented, ‘My Dad wants to see a lot of us’. She added, ‘He always tells us – and he wants to change us back to [E] or [B]’(schools). When asked how she felt about this, she said, ‘Not really sure, but I like it how it is’ (referring to the current living arrangements). She added, ‘Dad gets to see a fair lot of us and Mum takes good care of us, and we get to see [X] (referring to her one and a half year old brother). [J] also referred to her mother having another baby, who was due in mid-2008.”
At page 5 of her second report, Ms A records:-
“When asked about the reason for coming today, he said, ‘Not really sure’. When asked if he believed this was about the father wanting to spend more time with the children, [P] said, ‘No thankyou’, in a definite tone (indicating his response to this possibility). He added, ‘It’s boring at his house – most of the time he just watches telly on channels we don’t like, like boring cricket’. He added, ‘Or he makes us play on the Playstation for too long, like 24 hours a day or something like that’. He spontaneously added, ‘I like it how it is’ (referring to the current living arrangements).”
The children are now 11 and 10 years of age and Ms A is satisfied that the children’s expressed views in relation to their living arrangements have been properly and maturely formed and represent their genuine beliefs, despite the occasional spectre of parental influence. On the occasion of her interviews to prepare her first report, Ms A records this in relation to J (page 13):-
“In interview at both houses, [J] presented as confident and expressive as well as cooperative and open in her responses to questions. She expressed her views clearly and without any signs of apprehension.”
In relation to P, she records (at page 15):-
“In interview [P] presented as confident and expressive.”
By the time of the interviews conducted by Ms A for the preparation of her second report, little had changed in terms of the children’s presentation and confident expression of their views. J is recorded (at page 2) in the following terms:-
“In interview [J] presented as confident and expressive as well as cooperative, clear and open in her responses to questions.”
At page 5, Ms A notes in relation to P:-
“In interview [P] presented as confident, clear and expressive.”
In fact [P] obviously felt no reluctance to express to Ms A that “interviews are boring”.
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
There is ample evidence to indicate that the parents love their children and that each of the children loves both parents. The mother’s partner Mr D is also an important figure in the children’s lives to whom they relate with affection.
At page 14 of her first report, Ms A records:-
“When asked who she loved, [J] reported that she loved both of her parents as well as [Mr D]. She also reported that she loved her brother ‘sometimes’. In relation to [P], she said, ‘Sometimes he’s annoying’. [J] further reported that she felt loved by all of these people.”
P was a little more ambivalent in relation to his father. Ms A records at page 16:-
“When asked who he loved, [P] said, ‘Mum and Dad – sort of.’ He also reported that he liked [Mr D]. He further reported that he believed that his mother loved him and added, I‘m not sure about Dad’.”
J remained of a similar view by the time of the second interview. At page 5 of her second report Ms A notes:-
“When asked if she loved both of her parents, [J] said, ‘I do, but I’ve started to like Mum more ‘cos sometimes Dad is really weird’.
P remained at least ambivalent about his relationship with his father and is recorded by Ms A at page 6 of her second report as indicating the following:-
“when asked if he believed that both parents loved him, [P] said, ‘I think just Mum. She reminds me about the stuff that’s important so I keep healthy’. He referred to things such as cleaning his teeth and wearing sunscreen.”
A little later in the same report (at page 7) Ms A records:-
“When asked if he loved both of his parents, [P] said, ‘Just my Mum’. He added, ‘She’s a lot nicer to me’.”
In her oral evidence though, Ms A noted that she was confident that the children loved both of their parents but clearly had a preference for their mother and for living with their mother for the majority of the time.
I am satisfied too that the children clearly enjoy having two younger siblings in the mother’s household. They are obviously emotionally attached to them and it may well provide yet a further reason why it is that the children would prefer to spend the majority of their time in the more extended family environment of the mother’s household.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
On this issue, the conduct of the parties provides a number of mixed messages. In most respects there has been compliance with the Court Orders and hence a visible support of the relationship the children enjoy with the other parent. The contravention proceedings taken by the father were essentially directed to issues other than whether or not the mother was delivering up the children to the father as she should pursuant to the Orders. For some years now the children have been spending regular time with the father. However, whilst there has been a practical and physical application and attention to the parenting arrangements, both parents have on many occasions demonstrated an inability to facilitate and support a close and continuing emotional and psychological relationship with the other parent. Many of their words and actions have acted contrary to the children’s best interests in this regard. Examples of the children’s exposure on a regular basis to the bitter and dysfunctional relationship between their parents, are many fold.
Numerous agencies and authorities have been engaged in the dispute by the parents which has had a clear direct and incidental impact upon the children. To December 2005, 33 separate child protection notifications had been made to Families SA in relation to the children. In this context it is worth quoting two paragraphs from Ms A’s first report (page 19):-
“It is worth noting that, in her report of 16/12/2002, Ms [T], Psychologist, wrote: ….inconsistent parenting practices across households. It is therefore essential that both parents seek appropriate support to address their interpersonal relationship and thereby allow them to prioritise the children’s future needs. Developing their own parenting skills and managing their own anger and stress through attendance at appropriate counselling will further demonstrate this intention. One of the recommendations of Ms [T’s] report was that: both parents attend an appropriate anger management course or alternatively for individual counselling in relation to their interpersonal conflict, given this is impacting considerably on both parties’ ability to be child focused.
To December 2005, there had been 33 child protection notifications to CYFS in relation to the children. In August 2005, Ms [Y] of […] CYFS, wrote in her Notification Closure Text: This is a very acrimonious FLC matter in which […] DC have concerns about the Children’s knowledge of the paternal conflict. It has been difficult in the past to make an accurate assessment of the parenting ability of either parent. It is also difficult to know whether the children are being physically abused and/or whether they feel pressured into making statements about each parent to please/appease each parent. … Careful consideration needs to be given to the environment in which the children are interviewed and […] DC would strongly recommend school interviews or interviews away from parental care as interviewing them in the care of either parent may bias their statements in this particular case. … […] DC would also be concerned about the children being ‘over assessed’ by parents, particularly the father, taking the children to various agencies (& sometimes various offices within same agency) to be heard/spoken to.”
Despite the consistent alarm expressed by numerous authorities and experts as to the impact that the bitter interpersonal relationship between the parents is having upon the children, nothing appears to have changed. The proceedings before me were conducted in the same intransigent, bitter and conflicted manner. Not just by their evidence given in the trial proceedings before me but also by the manner in which they conducted their own case, an observation of their demeanour and presentation provided clear further evidence that their battle of some 10 years continues to rage to the detriment of their children. Confident that they are essentially blameless in their children’s suffering and that it was clearly the fault of the other parent, they continued to demonstrate their ill-tempered and unrelenting antipathy toward the other right to the end of the proceedings even during, and perhaps especially during, their final addresses. Each paid lip service to the notion that they understood the impact their acrimonious relationship was having upon their children. They demonstrated little insight or indeed capacity to recognise the impact their own behaviour was having in contributing to that situation or in finding any level or means by which that could be addressed or corrected.
The spectre of influence, or attempted influence, of the children’s views arises in relation to each of the parents. There are a number of outrageous, and indeed scurrilous, examples of such conduct.
Ms A provides one stark and alarming example of the mother’s behaviour in that regard. At page 14 of her first report she records this:-
“When asked, [J] reported that her father had never hit her. She spontaneously added, ‘But he forgets about [P] all the time’. When asked more about this, she said, ‘He grabbed me and didn’t even say, ‘C’mon [P] – if there was a fire he may not grab [P]. She also said, ‘I would go back for [P].”
P affirms the mother’s outrageous conduct in that regard as recorded at page 16 of Ms A’s first report:-
“When asked about the incident at the school (in February 2006) [P] said, ‘I didn’t really see it’. He added, ‘My Mum told me’. He then spontaneously added, ‘Actually we did see it – My Dad strangling [Mr D]. When asked, [P] reported that he had felt scared about this. He further commented, ‘Also he took [J’s] hand and not mine – Mum said, ‘What if there was a fire – he might take [J] and leave you behind’.”
Ms A also observes at page 18 of her second report the following as to each of the children respectively:-
“…. However, the writer believes that there are indicators that her responses in relation to the conflict between her parents at school are partially based on discussion with the mother, rather than complete first hand observation. ….”
“…. As with his sister [J], it is clear that his reporting of the events of the school incident are based on conversations with his mother. …”
Some of the father’s conduct has been little better. At the bottom of page 4 of her second report, Ms A states:-
“When asked what her mother thought of her father, [J] said, ‘Not really sure. She never really talks about him’. When asked if her mother said mean things about her father, she said, ‘Not that I hear’. When asked what her father thought of her mother, [J] said, ‘I don’t think he really likes her’. When asked if the father said mean things about the mother, she said, ‘Sometimes he says, ‘I hate her guts’ or something’. When asked how she felt about this, she said, ‘Weird inside, ‘cos I like my Mum and I’m not sure what is wrong with her’. …”
In his evidence the father admitted that he had said the words “I hate her guts” in relation to the mother but said that it was a muttered remark prompted by severe provocation from the mother. However, he acknowledged that the children, and certainly J, had most probably overheard that remark.
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The two reports and the oral evidence of Ms A make it clear that the children want no change in the living arrangements which they have experienced now for a number of years. She sees any further changes as being contrary to the children’s best interests and indeed detrimental to them. The only change which she anticipates would offer some benefit to the children would be to provide 3 or 4 occasions per annum when each of the children could spend one on one time with their father. She saw no benefit to them though in effecting such an arrangement during the school terms, as sought by the father, but rather during school holiday periods or an occasional weekend.
Surprisingly to Ms A, and indeed to this Court, the children have demonstrated significant resilience to the fact that their lives have essentially been dominated by the intensely bitter conflict between their parents. Neither has said that they wish to spend any less time with either of their parents but nor do they promote nor want any change of any sort.
Ms A said that it was not necessarily a healthy indicator in the children. She had the view that the children may well have “compartmentalised” their experiences at the hands of their bitterly antipathetic parents in order to just get on with their lives as best they can. She said it was their means of coping but that it did not provide a good model for their adult lives. There was an underlying tension that would continue to detrimentally impact upon their development and their happiness. She said that for years they had been showing the considerable strain of the divided loyalties imposed upon them by their parents.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
No matters of relevance emerge for my consideration pursuant to this sub-section.
(f)the capacity of:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;
I have, in dealing with the earlier sub-sections, dealt with most of the issues pertinent to the capacity of the parents to provide for the children’s emotional needs. Due to their visibly dysfunctional and highly acrimonious relationship, in many respects it could rather be more appropriately described as the parties’ incapacity to provide for the children’s emotional needs.
However, looming large in the presentation of the father’s case, was his wish, desire and expressed need to be involved in a more fulsome and relevant sense with the children’s schooling and general educational experience.
The father has a number of relevant and valuable tertiary qualifications in that regard. Whilst his actual formal educational experience met with a somewhat scornful dismissal by the mother, I accept that he does possess and has exercised educational experience relevant to his children’s needs. However, there is substantial evidence to support a finding that his intentions in that regard amount to mere words and not actions. Since at least the Orders of 27 July 2006 the father has been able to and indeed encouraged to participate in the children’s school activities and educational opportunities. Paragraph 5 of those Orders states:-
“5.That the father be at liberty to contact the children’s school and the mother do authorise the school to provide to the father copies of all school reports, newsletters and the like and the father be at liberty to attend all school functions to which parents are normally entitled to attend PROVIDED THAT the father attend at a separate time than the mother.”
Despite that, the father acknowledged in his evidence that he had not arranged, nor attended, one single parent / teacher interview, sports day or speech day (bar one when J asked him to attend to hear her deliver a speech) or any other formally or informally organised school event or activity. In fact, in relation to the children’s present school, the husband has been utterly inactive. He has not pursued school reports, newsletters or any other information or material. His contact with the children’s schools appears to have been confined to occasional conversations with the children’s teachers at times when he either collected or returned the children after their periods of time spent with him. These are not the actions of a man committed to a greater involvement in the children’s education or development.
The father maintained that the mother had generated a “poisonous” atmosphere at each of the children’s schools and that he received unwelcoming and indeed, at times, hostile receptions from teachers and principals. The evidence though does not support that fact. I accept that the father may well have felt uncomfortable in those situations and felt that the schools, teachers and principals were aligned with the mother, but he did little if anything to test his feelings in that regard. He did not provide the schools with an opportunity to either confirm or debunk his views in that regard.
By agreement, Ms A spoke to Mr F who is P’s teacher this year and was J’s teacher last year. He confirmed that the father had not attended a single parent / teacher interview and that he had seen him once or twice only. He indicated though that he had always been perfectly happy to talk to the father and continued to be happy to talk to the father, now about P. Ms A said that she gleaned no impression that the teacher had a negative perception of the father. The evidence in relation to the mother’s involvement in the intellectual development and education of the children, was significantly different. She had engaged in discussion with school teachers to develop additional programmes and approaches to the children’s indicated educational needs. At times she had also developed her own unique approaches to overcoming problems demonstrated by the children. Up until the time she had needed to devote some of her time to the care of the two young children born of her relationship with Mr D, she was a regular attendee at the children’s parent / teacher interviews and school events. She demonstrated thoughtful and insightful approaches to the children’s intellectual needs.
I accept that the father has, certainly of recent times, devoted his attention to the children’s need to complete their assigned school tasks and homework on the Wednesday nights that they are with him and indeed attended on numerous occasions to the fuller homework load that they had acquired for the balance of the week. He will continue to be able to make that important contribution to his children’s intellectual needs even if there is no increase in the amount of time that he gets to spend with his children. There is no question that he loves them and that he would dearly love to see them succeed and thrive in all aspects of their lives.
In a general and overall sense though, neither party appears able to provide fully for their children’s emotional needs. They seem unable to develop an effective and child focussed method of communication with each other. They have agreed to and adopted in the consent Orders I made on 21 October 2009, a number of processes by which each expressed the hope that their relationship and communication skills could be improved for the benefit of their children. I am left in no doubt that each is deeply concerned about the impact that their own conflict is having upon their children. They struggle however to identify ways and means of overcoming that situation, given their staunch adherence to the view that the other parent is to blame for that situation.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
There are no matters or relevance which emerge for my consideration pursuant to this sub-section.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
The father identifies himself as Aboriginal. The mother acknowledges that he does and that he is. Interestingly though, the father raised this cultural issue within the context of the identification of the children as being Aboriginal as being in some circumstances a disadvantage to them. He was concerned that if the mother identified the children as Aboriginal in various Government forms, their educational and general life opportunities might be compromised. The mother indicated her confusion as to how it was that the father wanted her to approach the question of the children’s cultural background. In the end the parties appeared to reach an accommodation that they would consult with each other as each occasion arose to determine whether or not there was any benefit or indeed detriment to the children in being identified as Aboriginal in certain circumstances. Neither of them made it an issue for any further consideration within the context of these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
No additional matters of relevance emerge for my consideration pursuant to this sub-section which have not already been dealt with by me in my treatment of the earlier relevant sub-sections.
(j)any family violence involving the child or a member of the child's family;
and
(k)any family violence order that applies to the child or a member of the child's family; if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Despite the acrimonious nature of the parties’ relationship and the significant emotional pain they have inflicted upon their children, neither has been guilty of any violence involving either of the children or extended members of the children’s families, save on two stark occasions.
The first related to an alleged assault upon the mother and Mr D by the father. The matter was dealt with by Mr F R Field SM in October 2008. He found the father not guilty of any assault upon Mr D but guilty of an assault upon the mother which the learned Magistrate described as “very much at the lower end of the scale”.
The more significant incident of violence was that committed by the father in relation to P. P had developed a habit of biting people, including his sister J. Nothing that the parties had tried had been effective in correcting this habit. It was the father’s evidence that he consulted his own mother on the topic and that the advice he received was to bite P to show him what it felt like. The father said that the next occasion that he encountered P biting J, he took P aside, placed his own mouth and teeth on P’s back in a firm but not a biting action. He said that P pulled away instinctively and in the process suffered a “bite like” bruise on his back. Photographs of P’s injury are annexure “G” to the mother’s Affidavit filed on 6 October 2009. Those photographs indicate that P’s injury was significant. It naturally raised the mother’s concern.
The father’s continuing explanation was to the effect that when he told his own mother what he had done, she explained that he had completely misunderstood her instructions and that she had recommended a far more harmless process of taking P’s finger in his mouth, looking him in the eye and instilling in him a concern as to how unpleasant the process of biting might be.
The father’s explanation is somewhat implausible and I am more inclined to the view that the father, in pursuing either misunderstood or misguided advice, thought that P ought to be “taught a lesson” and fully comprehend just how painful a bite could be, by biting P. Whatever the truth of the circumstances at the time, the father inflicted a significant injury upon P.
The father’s regret in relation to that incident was palpable and real. I am satisfied that his extreme remorse and subsequent apology to P was not borne of a concern as to the impact it might have upon his application before the Court, but rather because he was generally alarmed that he had caused such pain and injury to his son. He acknowledged that it was foolish. I accept that it will not happen again.
Whilst concerned at his actions on that occasion, neither the mother nor the Independent Children’s Lawyer suggested that it indicated a propensity to violence by the father. I was not asked to treat issues of violence as being of significance or relevance in the determination of these proceedings.
The children themselves appear to have no concerns as to their safety in the care of either parent. Indeed the position seems to have significantly improved. In her first interview with Ms A in July 2006, J indicated some ambivalence about her safety in her father’s care. At page 13 Ms A records:-
“[J] was asked to rate her feelings of safety when at her father’s house (with the options ‘little bit safe’, ‘big bit safe’, or ‘somewhere in between’. In relation to this, she said, ‘I’m not really sure’.”
By the time of her second interview with Ms A in March 2008, this is what was recorded (at page 4):-
“When asked if her father had ever smacked or hit her, [J] said, ‘No not really – only for play’. When asked if her Mother had ever done this, [J] said, ‘Only when she was stressed out – not very hard’. When asked if she was scared of her mother, she said, ‘Not really’. When asked if she was a little bit scared, she said, ‘No, because she’s nice’. When asked if she was scared of her father, she said, ‘Not really’. She spontaneously added, in a matter of fact tone, ‘Sometimes they (the parents) yell at us when we’ve done something naughty, or we’ve forgot to do something. Dad’s scarier ‘cos his voice is deeper’.
[J] was asked to rate her feelings of safety in relation to her parents and [Mr D] (the mother’s partner) on a scale of 1-10, where 10 equals really safe. She gave both parents a rating of 9 and a half and commented, ‘Sometimes they’re scary when they yell, but it’s okay – most parents do that’. [J] also gave [Mr D] a rating of 9 and a half and commented, ‘He doesn’t really yell’. When asked if [Mr D] was nice to her or mean to her, she said, ‘Nice to me. He takes us for a treat every second weekend – his pay day’. She referred to having treats such as frozen raspberry and coke, as well as having a meal at [a local venue].”
On the occasion of his first interview with Ms A in July 2006, P indicated a far greater sense of safety in his father’s care. At page 15 Ms A records:-
“[P] was asked to rate his feelings of safety when at his father’s house (with the options ‘little bit safe’, ‘big bit safe’, or ‘somewhere in between’. In relation to this, he said, ‘Really safe’. When asked, [P] reported that his father had never hit him.”
Nothing much had changed for P by the time of the second interview in 2008. Ms A has this to say at page 6 of her second report:-
“When asked, [P] claimed that neither parent had ever smacked or hit him. He also stated that he was not scared of his mother. In relation to his father, he said, ‘Just a little bit scared though, when he yells, if we’re naughty. Or if for no real reason, when we are doing little things’. When asked, he stated that his mother would yell, ‘Only sometimes when we do really naughty stuff’.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This sub-paragraph sets a significant challenge for the Court. Given the history of lengthy and acrimonious disputation between the parties for some 10 years, I find it difficult to be optimistic that there is any Order that I can frame which will prevent the parties from continuing their litigation and its consequent deleterious effects upon the children. Litigation has become a significant part of the children’s lives.
However, perhaps my cynicism in that regard is misplaced. Certainly at the eleventh hour the parties reached an accommodation and agreement in relation to all other parenting issues surrounding school holidays, schooling and the like. Each expressed a desire to be rid of the stress and strain of constant Court proceedings. Each indicated, and particularly the father, that whatever the outcome of this trial and whatever determination I reached, they would accept it and bring to an end the litigation between them.
I accept their sincerity at the time those views and intentions were expressed to me. I particularly accept the father’s sincerity in that regard. It is to be hoped that their future experiences of each other and frustrations with each other will not weaken their resolve in that regard.
(m)any other fact or circumstance that the court thinks is relevant.
No other matters of relevance emerge for my consideration here.
Section 60CC(4)
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Essentially all issues of relevance which emerge for my consideration pursuant to this sub-section, have been dealt with above. Each parent has at times inhibited the opportunity of the other parent to enjoy in a relaxed, unrestrained and unhindered manner, their time with their children and their significant roles in the children’s lives. As I indicated earlier, I am also satisfied that the mother has more fully embraced her opportunities to participate in the children’s educational activities than has the father.
Parental responsibility
Given that the parties have agreed to equal shared parental responsibility in relation to the children, it is necessary for me to consider the provisions of Section 65DAA of the Act. Sub-paragraph (1) is expressed in the following terms:-
Equal time
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
At one stage in the proceedings it was the father’s application before the Court that he enjoy equal time with the children. Subsequently he amended his application to request the equivalent of six nights per fortnight with the children, although one of those nights was to be spent with one child only.
The evidence does not support an Order requiring the children to spend equal time with each of their parents or indeed more time with the father than is presently the case, save and except with respect to one or two minor changes. It was Ms A’s evidence that if the father’s time with the children was to be increased as he requested then:-
77.1.the quality of the parties’ communication became significant;
77.2.there would need to be a high degree of trust between the parties and open communications;
77.3.they would need to trust that the information being provided by the other was honest;
77.4.they would otherwise perceive that they were being subjected to manipulation by the other;
77.5.this in turn would give rise to suspicion that they were being “set up”;
77.6.the parties would then engage in “second guessing”;
77.7.they would need to receive the information and use it for the benefit of the children and not use it is a self serving or opportunistic way;
77.8.it would require some flexibility and the need to be open to the other’s suggestions;
77.9.it would require a willingness on the part of both parents to support an increasingly shared care arrangement;
77.10.there would need to be consistency as between the households in relation to a number of issues including discipline, homework, household responsibilities, television viewing, extra curricular activities and the like;
77.11.if the parties were unable to cooperate and communicate in this way that there would be a potentially severe detrimental impact upon the children.
For some ten years there has been little, if any, evidence of a relationship of trust and cooperation between the parties in relation to their parenting responsibilities. Their capacity to communicate is extremely poor and in many senses totally absent. They have been unable to shield the children from their acrimonious dispute and at times have seemingly actively engaged the children in the dispute. They have sought at times to influence the children’s attitudes to the other parent, and not in a constructive or child focussed way. They have paid significant regard to their own needs within the dispute in ignorance at times of their children’s needs.
In her second report Ms A summarises the children’s appalling dilemma in this way (page 10):-
“The writer notes that both children have expressed some frustration and sadness about the continuation of the dispute between their parents in relation to court matters, with [J’s] responses suggesting that the father is more preoccupied with the continued conflict between the parties. However, [P’s] responses also suggest that both parents may be expressing their own sense of frustration about the court matters directly to the children at times. In general, the writer believes that the children are losing patience with the continued conflict and associated court related matters, and wish to put these issues behind them and get on with their lives. It is the opinion of the writer that this is a normal response for children of their age, especially in the context of lack of resolution of issues over a number of years. The writer believes that the parents should pay heed to their children’s opinion in this area and make a decision to bring an end to the conflict in the best interests of the children’s long-term emotional well-being. It is further noted that the writer strongly suggested this in the last report. However, this does not seem to have occurred as reflected in the tone of the documentation provided to the writer as well as the apparent lack of ability by either of the parties to cooperate and negotiate over matters relating to the children.”
The relationship between the parties bears none of the positive hallmarks that are required to support a shared care arrangement or any increased time with the father, save for a minor exception as to occasional periods of individual one on one time for each of the children with the father.
The Orders sought by the father are not supported by the evidence, do not represent the children’s best interests and fly in the face of comprehensive and detailed research and published literature. To grant the father’s application would reflect the father’s needs, not the children’s needs.
I have a further obligation though to consider substantial and significant time. That arises in Section 65DAA(2) which states:-
Substantial and significant time
If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
I am satisfied that the father already enjoys substantial and significant time with his children within the context of this relationship and the children’s needs and has done for a number of years, a fact acknowledged by the father in his final address. The children’s best interests are advanced by a continuation of that regime, with the addition of occasional individual times. Such an outcome is supported by the Independent Children’s Lawyer.
Discussion re Easter
It is the father’s proposal that Easter holiday periods which do not constitute part of the first term school holidays should be alternated between the parties so that each party would alternately enjoy an uninterrupted period with the children. It was the mother’s view that each such Easter should be shared equally.
I am satisfied that the father’s proposal better represents the interests of the children. It will reduce the possibility of further acrimonious disputation at mid point handovers and enable more fulsome leisure activities or holidays away to be planned. The Independent Children’s Lawyer too supported the father’s proposal on this issue.
Mediation
In evidence it was mooted as to whether or not mediation would assist the parties in developing their communication skills and their relationship for the sake of the children. A suggestion was that each be ordered to attend individual sessions and then joint sessions only with the consent of each of them.
However, I am of the view that such an order would be pointless. There was discernible animosity between the parties even at the conclusion of the trial and for mediation to work, significant goodwill would need to be demonstrated by each of the parties. If such goodwill is ever developed, they can undertake mediation voluntarily.
I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
Associate:
Date: 18 December 2009
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
-
Remedies
-
Procedural Fairness
0
0
2