Herriot & Howes
[2022] FedCFamC2F 1113
Federal Circuit and Family Court of Australia
(DIVISION 2)
Herriot & Howes [2022] FedCFamC2F 1113
File number(s): BRC 32 of 2014 Judgment of: JUDGE LAPTHORN Date of judgment: 25 August 2022 Catchwords: FAMILY LAW - Parenting – Application to spend time with teenage children - Children not wanting to spend time with their father – lengthy litigation Legislation: Family Law Act 1975 (Cth), ss 4; 60B; 60CA; 60CC; 61B; 61C; 61DA; 65DAA; 65DAC
Evidence Act 1995 (Cth) s 140
Cases cited: Goode v Goode (2007) 36 Fam LR 422; (2006) FLC 93-286
MRR v GR [2010] HCA 4
Rice & Asplund (1979) FLC 90-725
Division: Division 2 Family Law Number of paragraphs: 35 Date of last submission/s: 15 May 2022 Date of hearing: 11 April 2022 Place: Brisbane Solicitor for the Applicant: HCM Legal Counsel for the Applicant: Mr Galloway Solicitor for the Respondent: Hofstee Lawyers Counsel for the Respondent: Mr Baston Solicitor for the Independent Children’s Lawyer: Barbara Fox Solicitor Counsel for the Independent Children’s Lawyer Mr Bunning ORDERS
BRC 32 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HERRIOT
Applicant
AND: MS HOWES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE LAPTHORN
DATE OF ORDER:
25 August 2022
THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The children, X born in 2005 and Y born in 2007 live with the mother.
3.The mother have sole parental responsibility for the children.
4.The children spend time with and communicate with the father at all times as agreed between the parents or as expressly requested by either child.
5.In the event the children or either of them express a request to spend time or communicate with the father the mother is to do all things necessary to arrange such with the father.
6.Upon the child, Y turning 16 years of age, the mother provide each child the father's contact details and they be at liberty to make their own arrangements with the father in accordance with their wishes.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Herriot & Howes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE LAPTHORN
Introduction
The parents of 17 year old X and 15 year old Y have been embroiled in ongoing litigation for a number of years. Although final parenting orders were made on 12 July 2019 the litigation has continued. Those orders provided for the children to live primarily with their mother and for her to have sole parental responsibility for them. Y was to live with the parents in a shared care arrangement until 20 January 2020 when she was to spend time with the father on alternate weekends Friday to Sunday. X was to spend no time with the father until certain counselling had been undertaken. The children’s relationship with their father has completely broken down. The evidence was not entirely clear when the father last spent time with either child but there appeared to be no dispute that it is approaching three years.
The father, who represented himself for much of these current proceedings, filed an Application in a Case on 9 February 2021 which was deemed by me to be an Initiating Application on 22 March 2021. He subsequently amended this application on 30 March 2021. In the amended application the father sought inter alia orders that would provide:
(a)For the discharge of the final orders made 12 July 2019;
(b)The children live with the father;
(c)The father have sole parental responsibility;
(d)The children attend a Christian school; and
(e)The children spend supervised time with the mother.
The mother’s application to have this application summarily dismissed on the basis of the principle set out in Rice & Asplund[1] was dismissed on 20 December 2021.
[1] (1979) FLC 90-725
The father filed an affidavit on 15 March 2022 altering his position considerably. In that affidavit he set out the orders he sought as follows:
(a)The provision to him by the mother of the children's telephone numbers and email addresses;
(b)Time with the children, “at least on Christmas day and their birthdays and further days as they wish";
(c)The current address of the children, so that he might write to them; and
(d)That neither child be vaccinated against the Covid 19 virus as they are presently "healthy young adults".
The father’s case at the hearing was set out in his Outline of Case Document filed 5 April 2022. He sought orders that would provide for:
(a)The children to live with the Mother and spend time with him for a few hours on Christmas Day, on the children's birthdays, his birthday, Father's Day and in accordance with the children's wishes;
(b)The mother to provide to the father the children’s mobile phone numbers and email addresses;
(c)That the mother and father:
(i)Keep each other informed at all times of their residential address and a mobile contact telephone number which mobile number is only to be used to communicate in the event of an emergency;
(ii)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child; and
(iii)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This order authorises any treating medical practitioner to release the child's medical information to the other parent;
(iv)That the parents authorise, the schools attended by the children to give each parent information about the children's educational progress and other school related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent's cost); and
(v)That the children are not to be administered with a Covid-19 Vaccination.
In her Outline of Case filed 5 April 2022, the mother sought orders discharging all previous parenting orders; that the children live with her; that she have sole parental responsibility for the children; and that the children spend no time with the father.
The position of the Independent Children's Lawyer (“ICL”) was that orders should be made providing for:
(a)The discharge of all previous parenting orders;
(b)The children to live with the mother;
(c)The mother to have sole parental responsibility; and
(d)For the children to spend time with and communicate with the father at all times as agreed between the parents or as expressed by either X or Y.
The mother adopted the ICL’s proposed orders at the final hearing. She also accepted the position that when the youngest child, Y turns 16 years of age next year, she will provide both children with the father's contact details. She did not object to this position being reflected in the final orders of the court either as an order or as a notation.
The father did not personally attend court on the day set down for final hearing having informed his legal representatives that he was ill and unable to appear even by electronic means. I did not adjourn the proceedings given the ages of the children and the need for the matter to be finalised. It was agreed that the hearing could proceed on the papers and through written submissions. I have had regard to the documents set out in the written submissions and Outline of Case Documents filed by each of the parties and the ICL.
The Evidence
Given the issues between the parties narrowed considerably the matter proceeded without the testing of any evidence. I am satisfied that it was appropriate to do so in light of the limited dispute. For that reason I will not set out in any great detail the evidence before the court other than to provide a background summary.
The father is 50 years of age and the mother 48. They commenced a relationship in 1998 and were married the following year. X was born in 2005 and Y in 2007. The parties separated in late 2012 and a divorce order was made on 19 April 2014. A family violence protection order was made in 2016 naming the mother as the aggrieved and the father as the respondent. In 2018 the father brought defamation proceedings against the mother and also commenced family law proceedings. Since that time there have been numerous applications in a case or proceeding as well as for contravention of orders and contempt. There have also been appeals lodged. These applications were brought both before and after final orders were made on 12 July 2019.
As indicated earlier in this judgment the children have not spent time with the father for around three years. Their relationships with him have completely broken down and he is frustrated with this turn of events. He lays blame for this solely on the mother.
In April 2021 the children and parents attended upon a family consultant for the purpose of a Child Inclusive Conference. A Memorandum from the family consultant was before the court. X, who was 15 years and 8 months at the time, presented as a polite, intelligent and delightful young person who engaged well in the interview. X was reported as being fearful of the father due to his propensity to become angry. The reporter observed her to cry when referring to the somatic reaction she experiences when seeing the father. Y who was 13 years and 9 months at the time of the interviews presented as a polite, thoughtful and somewhat reserved young person. She was noted to have impressed as experiencing a level of ambivalence about spending time with the father. She said that she would like to see him but is scared that he will become angry. She did not want any specific amount of time with him and wanted to feel safe. She was open to supervised time but wanted to be assured that he would not get angry if she wanted to leave. She also wanted the father to refrain from speaking badly about X.
The family consultant came to the view from the children’s presentation that they had not been influenced by their mother into forming negative views of the father. The consultant recommended that X be able to self-determine what if any time she was to have with her father and that Y commence spending supervised time with the father.
The ICL filed an affidavit from Ms F, Psychologist and Clinical Family Therapist who enabled a Zoom meeting between the two girls and the ICL on 25 May 2021. She gave evidence that when the ICL asked the girls what they wanted their parents and the Judge to know and what they each wished for, both X and Y clearly and adamantly said they wanted no contact with their father. The girls also expressed that they did not want to attend further counselling sessions, individually or jointly with the father. Ms F, who had conducted therapy sessions with X, indicated that her expressed wishes were consistent with her previous discussions in therapy. Y had not been seen previously by Ms F.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[2] and must consider the best interests of each child as the paramount consideration.[3]
[2] Section 60B
[3] Section 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children's lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child's best interests the principles are:
(a)Children have a right to know and be cared for by both their parents;
(b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)Parents should agree about the future parenting of their children; and
(e)Children have a right to enjoy their culture.
[4] Section 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[5] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[6] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child's best interests for it to apply.[7]
[5] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[6] Section 61DA
[7] Section 61DA(2) and (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8] Unless there is a court order to the contrary each of a child's parents has parental responsibility for that child until they reach the age of 18 years.[9] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[10] A major long-term issue in relation to a child means an issue:
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.[11]
[8] Section 61B
[9] Section 61C
[10] Section 65DAC
[11] Section 4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the children's best interests and reasonably practicable.[12] If the court finds that equal time is not in the children's best interests or that it is not reasonably practicable then the court must consider the children spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the children's best interests and reasonably practicable.[13]
[12] Section 65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[13] Section 65DAA(2)(c) & (d)
Determining the best interests of the children - the s.60CC considerations
The court is required to determine a child's best interests by considering a number of factors set out in s.60CC. Given the dispute between the parties had somewhat narrowed by the time of the hearing I will primarily address the more significant factors being the nature of the children’s relationships, especially with the father and their wishes.
The children's relationships[14]
[14] Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
There is no dispute the children have their primary relationship with their mother and do not currently have a relationship with their father. Acknowledging this, the father has significantly moderated his position asking the court for very limited periods of time with the children. He proposed that they spend time with him for a few hours on Christmas Day, on the children's birthdays, his birthday, Father's day and in accordance with their wishes. The ICL and the mother sought an order that would see the children spend time with the father in accordance with their wishes.
The father argued that without some specific time ordered to occur the children would be at risk of losing him from their lives completely. His request was for very modest time on special occasions and other times in accordance with their wishes. He does not trust the mother to support the father/daughter relationships and believes that she has in fact undermined them. In his view the children have totally aligned with the mother. In the written submissions filed on behalf of the father I was taken to the Child Inclusive Conference Memorandum of 20 July 2020 prepared by Dr D. This report was prepared for earlier proceedings and related solely to Y. I was directed in those submissions to the following quote from that report:
However, of note, the mother’s attitudes and approach to facilitating Court ordered time between the child and father impressed as protective but rather inflexible and oversimplified. An important aspect of parental responsibility includes the active encouragement and provision of direction to a child’s behaviour and choices, even in times when the child cannot fully see the reasons for what is being advocated. The parent’s chosen approach to such situations can certainly contribute and perpetuate the child’s feelings and behaviours to the situation, in this case, spending time with the father.
Further, there was also a strong indication that the mother has not adequately responded to the child’s needs in relation to identifying and communicating with the child about their feelings towards the father. This could also be contributing to the child’s difficulties in navigating this significant and emotional dilemma.
I was not however taken to the paragraph appearing immediately prior to the above quote where the family consultant had this to say:
There was nothing obtained from the information available during the interviews that substantiate the father’s allegations that the mother has engaged in parental alienation with both children. The child’s views and feelings in particular appeared to be genuinely and independently held. There were no indications that the child has experienced negative influence from either parent about how to feel about the other parent.
Ms Edwards in the later Memorandum referred to earlier in this judgment, also came to the view that the children had not been influenced by their mother into forming negative views of the father.
No matter how the children’s views were formed, that is the reality for them and it has been longstanding. They do not at this point in their lives want to spend any time with their father. Whilst I have sympathy for the father’s desire to ensure a relationship is maintained, forcing the children to spend time with him against their wishes, given their level of maturity, risks an even greater long term severance of a relationship. This cannot be in the children’s best interests.
The children's views[15]
[15] Section 60CC(3)(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 views.
Ordinarily I would address risk of harm issues before addressing the views or wishes of children however in this case their views are central to the dispute. It was argued on behalf of the father that their views should not be determinative notwithstanding the ages and maturity of the children. It was submitted that their views have been formed in the context of the lengthy litigation and conflict between the parents. The father’s case was in part predicated on a finding that the mother had influenced the children such that they are now aligned with her narrative over that of his.
Even if the father was correct in that assumption I am satisfied that given the ages of the children their views should still be respected. To do otherwise risks the children becoming even further alienated from their father and risks undermining their mental health. To go against their stated wishes is not in their best interests.
Risk of harm[16]
[16] Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Although there has been a history of allegations of violence the primary concern would be the risk of harm to the children’s mental health if they were to spend time with their father against their wishes. They have both expressed a fear of their father’s anger. No child should have to experience fear. These children are in fact young women approaching their senior high school years. There is a real risk of emotional harm if they are forced to spend time with a parent whilst feeling fearful. This is not in their best interests.
Limiting further proceedings[17]
[17] Section 60CC(3)(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.
There have been a number of applications contravention filed over the years. To make specific spend time with orders heightens the risk of further litigation although I note the approach taken by the father in limiting the ambit of these proceedings did see some positive shift in that regard. Nonetheless orders that made provision for the children to spend time with their father in accordance with their wishes is least likely to lead to further litigation.
Presumption of Equal Shared Parental Responsibility
The father did not press for a parental responsibility order. Given the history of family violence and the inability of the parents to communicate effectively I am satisfied that the presumption of equal shared parental responsibility does not apply and that it would not be in the children’s best interests to make such an order. The children live with the mother and an order that she have sole parental responsibility should remain.
Consideration of Equal Time or Substantial and Significant Time
In light of my finding as to parental responsibility I am not required to consider an equal time or significant and substantial time arrangement as my starting point. In any event no party sought such an order.
Discussion
This is a particularly sad case in that the two teenage girls do not currently want a relationship with their father. Although I do not have a crystal ball, the relationship difficulties are not likely to change in the foreseeable future. The father’s proposal, although well meaning, would only make things worse for a father/daughter relationship in the future. The girls need to have their views respected and they should be given the opportunity to make contact with their father in the future when they are ready to do so. The mother, in her written submissions, indicated that she would be prepared to be bound by an order requiring her to provide both children with the father’s contact details once Y turns 16 next year. When I take into account all of the above considerations I am satisfied the orders sought by the ICL are the most appropriate at this point in time and are in the best interests of each of the girls.
The father also sought an order that the children not receive a COVID-19 vaccine. He did not put any evidence before the court that would enable me to consider the basis for such relief. As the mother has sole parental responsibility any decision to have the girls immunised will be a matter for her.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lapthorn. Associate:
Dated: 25 August 2022
Section 60CC(3)(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).
Section 60CC(3)(c): The extent to which each of the child’s parents 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.
Section 60CC(3)(d): The likely effect of any changes in the child’s circumstance, 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.
Section 60CC(3)(j): Any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.
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