HONUA & SKILTON

FAMILY COURT OF AUSTRALIA

HONUA & SKILTON

[2013] FamCA 731

FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the presumption is rebutted – Where the Court finds it is not in the children’s best interests for the presumption to apply – Where the Court requires the mother to consult with the father in the exercise of sole parental responsibility – With whom a child lives – Where the parents have never lived together – Where the children have always lived with the mother – With whom a child spends time – Child’s views – Family violence – Where the older child is 17 years old – Where the younger child is 11 years old – Meaningful relationship – With whom a child communicates.

FAMILY LAW – ORDERS – Contravention – Where the mother is found to have contravened an Order of the Court – Where the mother is found to have had a reasonable excuse for contravening an Order of the Court.

Family Law Act 1975 (Cth) s 60CC, s 70NAE

M & M (1988) 166 CLR 69

APPLICANT:

Ms Honua

RESPONDENT:

Mr Skilton

INDEPENDENT CHILDREN’S LAWYER:

Deborah Awyzio

FILE NUMBER:

BRC

11887

2010

DATE DELIVERED:

20 September 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

30 and 31 May 2012

REPRESENTATION

FOR THE APPLICANT:

Ms Honua in Person

FOR THE RESPONDENT:

Mr Skilton in Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Awyzio
DA Family Lawyers

Orders

All existing parenting orders are discharged.

The mother has sole parental responsibility for the children, B born … 1996 and C (“the children”) but when she is exercising that parental responsibility by making decisions about a “major long-term issue” (as that term is defined in the Family Law Act) in respect of either child she shall:
(a)Notify the father in writing of the major long-term issue about which she is required to make a decision;
(b)Inform the father in writing of the decision she is considering making and the reasons why she is considering making that decision;
(c)Request the father to put to her in writing any views he has about how the decision should be made, what decision should be made and the reasons why he proposes that; and
(d)Give reasonable consideration to any of the views the father has put to her, any decision he proposes should be made and any reasons he has given for that proposal;
(e)After having given reasonable consideration to anything the father has put to her in writing, make the decision that she considers is in the best interests of the child and then inform the father in writing of the decision she has made and the reasons why she has made it.

The children shall live with the mother.

Within three weeks of the date of these orders, the Independent Children’s Lawyer shall provide a list of four appropriately qualified family therapists to the father and the father shall choose one from that list who he shall commence to attend upon for therapeutic counselling, at his expense, on at least one occasion per month until such time as the family therapist determines that such therapy is of no further use and advises the father of that determination in writing.

The father shall advise the Independent Children’s Lawyer of the family therapist he chooses from that list and the date of his first session with the therapist in advance of that session taking place.

The Independent Children’s Lawyer shall provide the family therapist chosen by the father pursuant to these orders with copies of Dr D’s 2007 and 2012 affidavits in these proceedings, Ms E’s 2011 affidavit in these proceedings, Ms F’s 2007 affidavit in these proceedings and my reasons for judgment in these proceedings prior to the father’s first session of therapy.

The father is permitted to write letters and/or cards to the child B at the mother’s postal address once per month and the mother shall ensure that any such letters and/or cards addressed to the child B are given to B unopened.

The father is permitted to include in any such letter or card his own email address and/or telephone number with an invitation to B to communicate with him by either or both of those means if he so wishes.

Should the child B and the father commence email and/or telephone communication at any point in time pursuant to these orders, the father shall respect any subsequent request by B for him to cease and desist from such email and/or telephone contact with B and he shall then refrain from making any such email and/or telephone contact with B until B again initiates and requests such contact.

Conditioned on the father providing the mother and the Independent Children’s Lawyer with written notice that he has commenced therapy with a family therapist pursuant to these orders, the child, C, shall commence spending time with the father as follows:
(a)for three consecutive calendar months, for two hours on the fourth Sunday of each calendar month supervised at a children’s contact centre on Region G;
(b)for the next three consecutive calendar months thereafter, for two hours on the fourth Sunday of each calendar month, unsupervised, at the children’s contact centre on Region G;
(c)for the next four consecutive calendar months thereafter, for four hours on the fourth Sunday of each calendar month, unsupervised, with changeovers of care between the mother and the father being required to take place at the children’s contact centre on Region G;
(d)thereafter, for eight hours on the fourth Sunday of each calendar month, unsupervised, with changeovers of care between the mother and the father being required to take place at the children’s contact centre on Region G;
(e)otherwise, as agreed between the mother and the father in writing or by further order of this Court.

All costs charged by the children’s contact centre for the use of the centre pursuant to these orders shall be met by the father.

The father is permitted to write letters and/or cards to the child C at the mother’s postal address once per month and the mother shall ensure that any such letters and/or cards addressed to the child C are given to C unopened.

The father is permitted to include in any such letter or card his own email address and/or telephone number with an invitation to C to communicate with him by either or both of those means if she so wishes.

Should the child C and the father commence email and/or telephone communication at any point in time pursuant to these orders, the father shall respect any subsequent request by C for him to cease and desist from such email and/or telephone contact with C and he shall then refrain from making any such email and/or telephone contact with C until C again initiates and requests such contact.

By these orders, the mother authorises any school that either of the children attends from time to time to provide the father, at his expense, if any, with copies of reports or any other information in written or oral form that the school lawfully may provide to a parent of a child attending that school as the father may request.

The mother shall keep the father informed as to any significant ill health or injury suffered by either of the children from time to time and as to any treatment that child receives for that ill health or injury.

The children’s names shall be removed from the Airport Watch List PACE Alert system maintained by the Australian Federal Police at all points of entry or departure from Australia.

The mother is permitted to take either or both of the children from the Commonwealth of Australia for the purposes of overseas travel to the extent that such travel does not interfere with the obligations these orders otherwise place upon her to make the child C available to spend time with the father.

The mother shall retain possession of the children’s passports and should the father receive a request from the mother to sign an application for renewal of the passport of either or both of the children and return it to the mother then he shall sign such an application and return it to the mother forthwith.

By no later than 28 days prior to departure from Australia with either or both of the children, the mother shall provide notice in writing to the father of any overseas travel that is planned for either or both of the children including details as to the country or countries it is intended the child or children will be travelling to, the length of time the child or children will be out of Australia, the dates of intended departure from and return to Australia and she shall also provide the father with a copy or copies of the return tickets for the child or the children evidencing details of the airline upon which the child or children will be travelling and departure and return details.

The Independent Children’s Lawyer shall inform the children of the outcome of these proceedings and the effect of these orders that impact upon them, and that shall be done, at her discretion, with or without the assistance of the family consultant, Mr H.

The Independent Children’s Lawyer shall be discharged upon compliance with paragraphs 4, 6 and 21 of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Honua & Skilton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11887 of 2010

Ms Honua

Applicant

And

Mr Skilton

Respondent

REASONS FOR JUDGMENT

The father in this case, Mr Skilton, and the mother, Ms Honua, have two children. Their son, B, is now 17 years old. Their daughter, C, is now 11 years old. The two children live with their mother. They always have. Their father has never lived with their mother. The parents have a highly conflictual relationship. Since the first weekend in December 2010, the two children have not spent any time with their father. They have, consistently since that time, said that they do not want to spend time with him. This case is about what can and should be done about that by Order of this Court.

Some background

B was born in 1996. The mother lived with her husband at that time, albeit separated from him. There is a 30 year age difference between her and her former husband. They still share a house together now but are not a couple. The mother and the father met in 1995 and began an intermittent relationship. B was born of that relationship but the relationship foundered at around that time. Hostility and conflict apparently characterised the relationship even then.
The mother and the father resumed their relationship in late 2000, still without living together. C was born in 2002 and the relationship ceased, finally, in November of that year. The family’s involvement with this Court began soon thereafter and they have been involved in proceedings here, on and off, ever since.
In October 2004, final orders were made with the consent of the mother and the father, after the production of two family reports, for the children to continue to live with the mother and to spend time with the father on alternate weekends and during school holidays. Changeovers of care took place, pursuant to those orders, at a children’s contact centre, but that ceased, by agreement, in late 2005.
The parties came into high conflict again in early 2006 with each making serious allegations against the other to the then Queensland Department of Child Safety and the Queensland Police Service. The father alleged the mother was a drug dealer and user and that she exposed the children to those activities. The mother alleged the father had sexually abused C. None of the allegations each parent made against the other were considered to be substantiated by the authorities. None of those allegations were ever determined by this Court and neither parent presses for them now to be determined against the other parent.
The children’s time with their father and their relationships with him were seriously impacted during this period. In late 2006, proceedings in this Court were again underway. At around the same time, the mother gave birth to another male child, the son of another man with whom she had formed a relationship.
In late November 2006, interim orders made by consent suspended the then existing orders providing for the children to spend time with the father. Those interim orders also provided for B to have counselling. In fact, counselling for both children began in early 2007 with Ms F, a social worker working for an organisation called I Services. She prepared reports in the matter later in that year. Psychiatrist, Dr D, also prepared a report for the Court in February 2007. Dr D expressed the opinion then that the continuation of counselling of the children with a view to re-establishing contact between them and the father over time was appropriate.
On 8 November 2007, before a trial actually commenced, the parents and the Independent Children’s Lawyer all agreed to a settled outcome that was then reflected in final orders made by the Court with their consent. Those orders again provided for the two children to live with the mother and to begin spending time with the father on an increasing basis, progressing after four months to alternate weekends from after school Friday until Sunday afternoon at 5:00 pm and also for some time in the school holidays progressing to half of all holidays in 2009. They provided for many other things as well, such as counselling of B by the psychiatrist, Dr J, restraints against denigration of each other to the children, changeovers of care to be at a children’s contact centre, restraints against taking the children out of the country (save for the mother being permitted to take them to Country K twice per year), renewal of passports at appropriate times, shared parental responsibility, sharing of costs of B’s school fees, conferral of responsibility for choosing the primary school for C on the mother alone, and telephone contact.
The children spent time with their father according to the 2007 orders from 2008 through to the end of 2010. That time was not without its difficulties on any account. Then, after a weekend with the father in early December 2010, the mother completely stopped the children going over to the father’s home. Both parties then filed applications on exactly the same day, 20 December 2010, for the other to be dealt with for contravention of the existing orders. The father alleged that the mother contravened the orders by refusing to let the children spend the weekend with him on 17 December 2010 without reasonable excuse. The mother alleged that the father had, without reasonable excuse, denigrated her in the presence of the children on a number of specific occasions throughout 2010 and discussed Court proceedings with B in 2008. On the same day, the mother filed an Application in which she sought sole parental responsibility for the two children and an order providing for the time the children spend with the father to be subject to the children’s wishes. She also filed a Notice of Child Abuse in which she alleged that the father had made some serious threats of physical harm to the child, B, as well as threats to smash the boy’s mobile telephone. The mother also alleged the father was discussing serious matters of parental conflict with the children, thus doing them emotional harm.
In January 2011, Justice Bell of this Court appointed an Independent Children’s Lawyer to represent the children’s interests and ordered that a family report be prepared. There were some apparent misunderstandings about the process that was to then occur and the matter was back before Bell J on 5 April 2011. On that day a family report was ordered to be prepared by a family consultant from the Court’s Child Dispute Services. Counselling of the children was also ordered to be conducted by a family consultant immediately following publication of the family report.
A family report by family consultant, Ms E, was published on 28 July 2011. Ms E concluded her report with the recommendation that the children cease to spend time with the father or, at most, spend minimal time with him throughout the year.
The children saw Mr H, family consultant, in the Court’s Child Dispute Services in early August 2011 and then again in mid-December 2011. Mr H, used the first occasion to gauge the children’s views about seeing their father and to build rapport and the second visit to counsel them.
Ms E’s family report was shown to Dr D who was asked for further opinion. The doctor said, in response, that the child, B, “is now highly unlikely to willingly go to contact with the father and that weight should be given to his opinion.” Dr D went on to assert that it is probable that any orders which the boy sees as overriding his own views “would encourage defiance on his part.”
Dr D also said that it is unlikely that any future counselling of the children would bring about the contact which the father desires if it is correct that he has not altered his views at all over the very lengthy period of this litigation. Dr D finished her response by expressing her opinion that “protracted litigation can have negative effects upon the children and that this matter is very unlikely to be resolved by its continuation.”
The competing parenting orders applications and contravention applications came before me for trial on the 30^th and 31^st May 2012. The ICL appeared without counsel. The mother and the father both appeared without legal representation. Dr D, Ms E and Mr H all gave oral evidence and were cross-examined by the mother and the father. Both parents were also cross-examined by each other and the ICL.
I reserved my decision at the end of the trial. Regrettably, it has taken me fifteen months to deliver my judgment. Like many of my reserved judgments over the last eighteen months, this one has been delayed for longer than it should have been by the demands of having to hear and determine so many other property adjustment and parenting cases. I acknowledge the distress that delay would have caused the parties in this case, most particularly the father, over and above the distress already experienced by them being involved in long-term, high parental conflict and litigation in this Court. The delivery of my judgment, it is hoped, will bring some finality to the matter.

What are the competing positions of the parties?

At the end of the trial, the mother maintained the position that the children continue to live with her, that she have sole parental responsibility for them and that there be no orders for them to spend any time with the father save for at their request and, then, at a contact centre. The father sought orders that the children continue to live with the mother, that he share parental responsibility for the children with the mother, that he have telephone and email contact with the child, B, who should consult Mr H for counselling every six months until he turns 18, that the child, C, should also have counselling with Mr H and then, after four or five sessions, resume spending time with the father every 4^th weekend and in school holidays for 10 days at a time. The father proposed that changeovers of care for C take place at McDonalds Restaurants. He proposed telephone communication with the children once per week and on special days. He also proposed that the mother be permitted to take the children for holidays to Country K twice per year, in addition to other orders associated with that.
The ICL made submissions at the end of the trial that were consistent with the position she had adopted in the Case Information document that she filed at the commencement of the trial. Her submissions proposed orders that were not too different to those sought by the mother. The ICL submitted that the mother should have sole parental responsibility for the children, that they continue to live with the mother and only spend time with the father as agreed between the mother and the father. She submitted that the Court should order that the mother facilitate contact between the children and the father in the event that either child expressed a wish to communicate or spend time with the father.

How is the Court to determine the parenting orders to be made?

The Court may make such parenting orders as it thinks proper, subject to the application of a presumption that it is in the best interests of the child or children for the child or children’s parents to have equal shared parental responsibility for the child or children. Of course, the Court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order in relation to a child.
In determining what is in a particular child’s best interests the Court must consider the matters that are set out in s 60CC of the Family Law Act. It should also be mindful of the Objects and the Principles underlying those Objects. Those are expressly set out at the commencement of the Part of the Family Law Act within which the power to make parenting orders is conferred on the Court.
The list of considerations in s 60CC is extensive. Just how broad the inquiry may be is evidenced by the inclusion in s 60CC(3) of the consideration of “any other fact or circumstance that the court thinks is relevant”.
It is always good for the Court to remind itself, in the process of determining proper parenting orders, of that which the High Court said in M and M (1988) 166 CLR 69. Their Honours (at page 76) stressed that the Court is not enforcing parental rights but rather is determining orders that best promote and protect the interests of the child. The Judges of the High Court went on to say in that case that, in the process of determination, “very great weight” will be giving to the importance of maintaining parental ties, not because of parents’ rights “but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.”

What of the application of the equal shared parental responsibility presumption in this case?

Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Each of the parents of a child who is not 18 has parental responsibility of the child subject to that being displaced by a parenting order of the Court. When a parenting order is being made in relation to a child there is a statutory presumption that it is in the child’s best interests for the child’s parents to have “equal shared parental responsibility” for the child. When the presumption applies and is not rebutted as it can be by evidence, then the parenting order must include provision conferring “equal shared parental responsibility” on each of the parents.
If the parenting order confers “shared parental responsibility” and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child, at law, the order is taken to require each parent to consult the other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue, as well as requiring the decision actually to be made jointly. “Major long-term issues in relation to a child” means issues about the care, welfare and development of the child of a long-term nature, including (but not limited to) issues of that nature about the child’s education, the child’s religious and cultural upbringing, the child’s health, the child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The statutory presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child or family violence. The Court can though, in circumstances where the presumption does not apply, still determine that it is in a child’s best interests for its parents to nevertheless share parental responsibility for it. Further, even if the Court is not satisfied that there has been abuse of a child or family violence, the presumption may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility for it.
Clearly, in 2007, the mother, the father and the ICL who was in the matter at that time all agreed that it was in the two children’s best interests for the parents to share parental responsibility. Now, only the father continues to assert that it is.
In my view, having regard to the fact that the making of a parenting order that confers shared parental responsibility on both parents mandates consultation and genuine effort by them to come to a joint decision about any major long-term issue in relation to the child and also the requirement that any such decision must be jointly made, when determining whether an order conferring equal shared parental responsibility on both parents is in the best interests of the subject children it is critical to consider, amongst all of the matters that must be considered in determining what is in a child’s best interests, the parents’ capacity to communicate with each other, to consult and make genuine effort to make a joint decision and, ultimately, to be able to actually jointly make such a decision.
Without even turning to a consideration of whether there has been abuse of any of the children by either parent or family violence perpetrated by either parent, I am satisfied on the evidence in this case that it is not in the best interests of the subject children to make a parenting order conferring equal shared parental responsibility on both parents. All of the evidence convinces me that the parents have no capacity to communicate effectively and reasonably in respect of matters pertaining to these children. I am satisfied that they have no capacity to be able to genuinely consult with each other when a decision about a major long-term decision in relation to these children is to be made and no capacity to make a genuine effort to come to a joint decision about that issue, let alone any capacity to actually jointly make such a decision. The evidence satisfies me that the distrust and disdain each parent holds for the other and has held for the other over many years, without any apparent abatement, prevents them from being able to consult and make joint decisions.
If the Court were to confer shared parental responsibility, the exercise of which involves decisions about major long-term issues, on parents in cases where the parents are assessed as not having the capacity to be able to consult each other and make such decisions jointly, the statutory requirement for such decisions to be made jointly, would, effectively, inhibit and restrict necessary decision making and ultimately necessitate repeat applications to this Court. That is not in the best interests of the children. That is already well demonstrated by the evidence in this case that supports a finding that the children have been impacted detrimentally by the constant exposure to the long-term litigation between the parents.
I will not make an order conferring shared parental responsibility on each parent as is sought by the father.
However, in such circumstances, parental responsibility for making decisions about a major long-term issue in relation to the children must be conferred on one or other of the parents. In this case, there is no dispute at all between the parents that the two children should continue to live with the mother, just as they always have. Clearly, in my view, given that sharing of parental responsibility for these two children between their parents is not in the best interests of the children, I will make parenting orders that confer sole parental responsibility on the mother. That accords with the submissions of the ICL who is charged with the responsibility of representing and advocating for the best interests of the children in these proceedings. I will, however, require the mother to inform the father when such a decision is being made, to tell him what she proposes to do, to seek any input he wants to give, to tell him what decision she ultimately makes and to give him some reasons why she has taken that decision. These requirements will be more relevant in relation to the child, C, as the child, B will be an adult fairly soon and responsible for making decisions for himself.

What other parenting orders should be made?

The child, B

B was almost 15 when he was interviewed by Ms E. He told her he did not want to see his father, explaining that his father is “angry and yells a lot.” Ms E reported that B told her about things that he said happened on the last weekend that he spent time with his father in early December 2010. He told Ms E that his father had threatened to break his wrist because his father thought B was going to read a letter that was written by the father to the mother. He told Ms E that he actually believed his father’s threat and that his father was capable of carrying out the threat. He apparently referenced that belief to a previous incident that he said happened when he was on a trip to L Town with his father when he said his father sat on his back, covered his mouth and took his glasses off as some form of disciplinary action. The father accepts both incidents actually happened.
Ms E reported that B “reiterated concerns consistent with the mother’s affidavit filed 20 December 2010 that Ms E did not consider necessary to re-document. Ms E reported that B lacked confidence in his father’s capacity to maintain any changes in the behaviour that B perceived as being inappropriate. She described B as being firm and unrelenting in his views about his father and his wishes about future parenting arrangements. Ms E reported that B said that he would scream and yell if he was made to go spend time with his father by police. Ms E quoted B as saying of his father “he makes me scared and I don’t want a relationship with him.” B was not even prepared to consider any scenario where he would spend time with his father on a less frequent basis. He is reported to have expressed the belief that less frequent time with his father would not alter the cause of his concerns.
The father confirmed that the last weekend that the children spent with him in December 2010 had not been a good one for them all. He confirmed that he had threatened to break B’s wrist. He confirmed he had threatened to smash B’s mobile phone. He confirmed that he had made B write out five or six pages of repetitive lines in the thrust of “Do not spy for my mother” and “Do not tell lies”. Ms E reported that the father, in her opinion, “felt justified” in behaving the way that he did, particularly in respect of the incident that occurred on the L Town holiday.
Mr H gave oral evidence to the Court at the trial. He told the Court that when he had seen B in August 2011, B had expressed strong, adamant views. He reported that B got angry with him for continuing to ask him questions about his father. Mr H detected no ambivalence in B and no distortion in his sentiment. He reported that B was very clear that he did not want to spend time with his father. Mr H even said that if he had been asked after that first session about whether counselling of B about seeing the father was in the child’s best interests he would have said that it was contrary to what he considered would be in B’s best interests at the time.
Mr H told the Court that when he saw B again in December that same year, the boy’s presentation was unchanged. B was clearly angry, Mr H said, about having to see him again about the issue. Mr H expressed the opinion that there is no indication with B that he would be a suitable candidate for any type of therapy that has as its goal any reunification with his father. He told the Court that he did not consider any of B’s thoughts as irrational. Ms E had also reported the opinion that there “appear to be rational and sound reasons motivating” the children’s refusal to go. On the evidence that is before me, I accept that opinion in respect of B.
B is now 17 years of age. There is evidence of three experts before the Court that B, over a period of time, consistently maintained the position that he does not want to spend time with his father. None of the experts expressed the opinion that B’s views should be given little or no weight. Indeed, none of the experts suggested that B’s views should not be respected and followed.
The father himself, to his credit, apparently recognises this. However, he still seeks orders for telephone and email contact with B and for B to see Mr H or a similar counsellor every six months.
I do not, with respect to the father, accept that it would be in B’s best interests for email and telephone communication contact to occur unless B wants it to or for B to have to go to counselling every six months. I consider it best for B to be allowed to progress over the next year into adulthood unburdened by such things. Once he is an adult, the decision as to whether to have any sort of relationship with his father will be his alone and I am of the view that should now be respected.
I will make orders that give the father the right to write letters and cards and send them in the post to B. The orders will obligate the mother to make sure that any such letters or cards written are given to B, unopened. If B gets letters or cards from his father, he can decide whether he opens them and reads them and what he does in response to them. I will limit that right to no more than one card or letter per month. More than that, in circumstances where B is not actually inviting such communication, in my view, could be distressing for B and thereby do more harm than good. If any of the content is inappropriate then it is likely B will not open any more of them. That is a matter for the father to be aware of. I consider he does have the capacity to be sensitive to that fact if he does choose to write to B. However, even if B does not open any of them to read them, he will at least know that his father has cared enough about him to write him a letter or a card and that might encourage further contact between them at some point in the future. The father can, of course, provide his own email address and phone number to B in any such letters or cards and that will allow B to contact him by either of those means of electronic communication if he so chooses. My orders will require the father to respect any subsequent request from B to cease and desist from any further email or telephone contact though.

The child, C

By all accounts, C is a mature, thoughtful young girl. She would now be in Grade 6 in primary school and at least when she was interviewed by Ms E in 2011 was doing very well at school. Ms E’s report suggests that she considered C was scared of her father. Ms E reports C telling her of the father’s threat to break B’s wrist and saying “it made me feel really scared especially for B because it would be really bad if he did that.”
C was reported as being unable to contemplate anything that she misses about her father or anything that she would miss if she was to have no time with him in the future. She is said to have indicated reluctance to spend time with her father and to have said that she would not attend time with him if it was ordered. She is said to have conceded that if she absolutely had to go (if police escorted her) that she would remain physically distant from her father within his home. Ms E reported that C described her happy ending to the story as “not to see her dad again and stay with mum”.
C was reported to have observed that whilst her mother may occasionally express dislike for the way her father behaves towards them her father “says lots of nasty things” about her mother.
Ms E, in her evaluation, opined that if the children’s perceptions are accepted by the Court, it appears that the father exhibits “unrealistic and consuming thoughts with respect to the children’s mother in addition to behaving in a threatening way towards the children, primarily B, in the name of discipline and behaviour management”. Ms E pointed out that the father does not deny the particular behaviour (such as the threat to break B’s wrist, the threat to smash B’s phone and making B write out six pages of lines at the age of 14). She was critical of this behaviour and said it reflected a lack of insight on the father’s part as to how the behaviour may impact upon the children and his relationship with them. I accept that opinion.
Ms E strongly expressed the view that counselling for the children was not likely to be the answer but rather it was the father who may need to change his behaviour. She went on to say that the cause of the children’s broken relationship with their father, whatever it is, appears, in her opinion, to be “rather entrenched and unlikely to change in the near future”. Ms E asserted the opinion that both children need to be free of parental complications to participate fully in the remainder of their childhoods, without continual interruptions as a result of parental conflict. She provided the assessment that ceasing time with the father or limiting it to minimal time at nominated times throughout the year would provide the children with that outcome.
As I have earlier observed, Dr D agreed that further counselling would not be likely to bring about the contact that the father desires if it is correct that the father has not altered his views at all over the very lengthy period of litigation. However, in her oral evidence, under cross-examination by the father, the doctor did acknowledge that to determine there should be no contact at all between the father and the child, C, would be a very “major step” and that “it would be desirable for it [contact] to be tried”.
The evidence of Mr H gave same cause for a slightly more optimistic view of the future of the relationship between the father and the child, C. Although Mr H reported C as informing him that she hated seeing her father, he did observe some ambivalence and described C’s expressed negative thoughts about her father as displaying rehearsed features. He also observed that the majority of her thoughts arose from her witnessing the father’s treatment of her big brother rather than his treatment of her. He said that he detected “mixed feelings” the second time he saw C although she told him she had not changed her views.
One point Mr H was quite strong on though, was his view that counselling of C would not be likely to change anything and he told the Court that it was his own decision not to continue to see the children. Mr H concluded his oral evidence in chief by warning that the degree of ambivalence he observed in C should not be interpreted as meaning that she does not mean it when she says she does not want to see her father.
Importantly though, in my assessment, under cross-examination by the father, Mr H did agree that if C was to spend some time with the father by herself without her brother being there with them that “you may get some success there”. Mr H said “it is tempting to try that”. When asked if it might work if scheduled on one occasion per month, Mr H said that it could but went on to say that given his impression that C has a strong sense of loyalty to her brother he did not know how she would actually cope with that.
Ms E, in her report, ultimately acknowledged that her recommendations would not allow the children to sustain a meaningful relationship with the father, whilst Dr D and Mr H clearly saw, I am satisfied, that it was in C’s best interests, at least, for some effort to be made for a meaningful relationship with her father to be re-established as she moves into adolescence. The challenge for the Court is to strike the right balance, in C’s best interests, between facilitating that opportunity and protecting her from any further emotional harm through forcing her to see her father. That, I accept, is the dilemma that the experts all recognised.

The mother and the ICL both submitted that the right balance would be struck by simply leaving it for C to decide. I am not satisfied, given her age and the position that I expect her mother and her brother are likely to adopt, that leaving it entirely up to C is striking that correct balance. I consider that the right balance will be met by making parenting orders that include a requirement that the father have personal counselling with a private family therapist chosen from a panel of four provided to him by the ICL (with copies of Dr Ds’ reports, Ms E’s report, Ms F’s reports and these reasons for judgment to be provided to that counsellor/therapist) on an ongoing basis, at least on one occasion per month, until such time as the therapist determines that such therapy is of no further use.
Conditioned on the father providing evidence to the mother that he has begun the counselling, I consider that the correct balance requires the parenting orders to include provision for C to spend time with the father on one weekend per month, initially, because of the length of time since she last spent time with him, in the confines of a children’s contact centre on Region G. Such contact shall be limited to two hour long supervised sessions for the first three months, progressing to unsupervised two hour long sessions for another three months before then progressing to unsupervised, four hour sessions away from the contact centre whilst still utilising the centre for changeovers to prevent the parents coming into direct contact with each other. After four months of that, the period of time C spends in her father’s care shall increase to eight hours on one Sunday each month. The orders will provide for C to begin spending time with her father for periods longer and more frequently than that only by agreement between the parents or further order of this Court.
The orders will also provide for the father to be able to send letters and cards to C no more than once per month and for the mother to be obligated to pass those on, unopened, to C. The orders will permit the father to give his email address and telephone number to C and invite her to contact him via either of those means if she wishes but will obligate him to respect and act on any request he receives from C at any time for him not to contact her by either of those means.
I consider it appropriate for an order to be made that authorises the schools the children attend to provide the father with copies of reports or other information that those schools lawfully may provide to parents that the father might request from time to time. I also consider it appropriate for an order to be made that requires the mother to keep the father informed as to any significant ill health of the children and any treatment received by them for such ill health.
The existing 2007 orders include serious restrictions on the right of the mother to travel with the children outside of Australia. They limited that travel to no more than two trips to Country K (the country of the mother’s birth) each year. They otherwise maintain the children on the Federal Police Airport Watch list.
The mother seeks orders lifting those restrictions. The father wants those restrictions maintained.
I am satisfied that the mother should be permitted to travel with the children overseas if that is what she wants to do, provided such travel does not interfere with the time that the child, C, is to spend with the father pursuant to the orders. I do not consider that there is now any good reason why she should be limited to only two overseas trips per year and I will not be making any orders that limit the number of journeys she may make with the children. Further, I do not consider that there is now any good reason why she should be limited to travel only to Country K, the country where she was born. I am quite satisfied that the mother regards Australia as her permanent home and that the children do too. So long as she makes all of her travel plans that involve C around the obligation to make C available to spend time with the father in accordance with the orders that will be made, she is free to do as she likes in respect of travel with B and C.
I will nevertheless make orders that still require her to give reasonable notice in writing to the father of any such travel that is planned including details as to the country or countries she intends to travel to with the children, the length of time she proposes to stay out of the country with the children and the departure and return dates, as well as copies of the children’s return tickets. I will order that the children’s names be removed from the Pace Alert System in force at all points of arrival and departure in Australia, that the father sign any necessary passport applications to facilitate passport renewal from time to time in respect of the children and for the mother to retain possession of the children’s passports. The orders will require the mother to give the father this notice and the details in writing no less than 28 days before the proposed departure date. That way he has sufficient time to make an application to this Court if he considers he has good reason to make one, in the best interests of the children.
The orders I will make will also include provision for the ICL to inform the two children, with or without the assistance of the family consultant, Mr H, of the outcome of the proceedings and the effect of the balance of the orders. When that is done and the ICL has forwarded documents to the family therapist chosen from her list of nominees by the father, she will be discharged.

The Parents’ respective Contravention Applications

The Contravention applications each party filed on 20 December 2010 were both listed to be heard by me as part of the trial in which the competing parenting orders applications were heard. At the commencement of the trial, I asked the mother and the father what they wanted the Court to do in respect of their contravention applications.
The mother informed the Court that she simply wanted to deal with the parenting orders proceedings and did not press her contravention application. I took her position to be one of formally discontinuing her contravention application.
The father informed the Court that he wanted his contravention application to be heard and determined. I informed him that would then happen as part of the one trial. That is what occurred. There was no separate part of the hearing that dealt with the father’s contravention application but rather it was simply subsumed by the case run in the parenting orders proceedings by each of the parties.
At the end of the matter, I was left satisfied that the mother did contravene the then applicable 2007 parenting orders in December 2010 when she did not deliver the children to spend time with the father or facilitate telephone communication between them. Having considered all of the evidence, particularly the expert witnesses’ evidence, as well as the notes written by the children at the end of that weekend of 4 and 5 December 2010 that are in evidence, I am satisfied that the mother had a “reasonable excuse” for the contraventions within the terms of the meaning given to that term in s 70NAE of the Family Law Act. The children had been exposed to behaviour of their father that clearly threatened them and made them feel scared and unsafe. Even the father admits that he said things to the child B that would, I find, very definitely have scared B and his little sister. The children clearly reported those matters to the mother and told her they did not want to go and see their father again. The mother then, I consider, cannot be said to have acted other than reasonably in withholding them as she did as a consequence and very quickly filing proceedings seeking to put in place variations to the existing orders and appropriate investigations into all the matters alleged.
Accordingly, I find the mother did contravene parts of the 2007 primary orders but that she did so with reasonable excuse as that term is defined.
I will make the orders set out at the commencement of these reasons for judgment.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 September 2013.

Associate:

Date: 20 September 2013

[2013] FamCA 731

20 September 2013

Key Legal Topics

Areas of Law

Family Law