Irish & Michelle
[2009] FamCA 66
•6 February 2009
FAMILY COURT OF AUSTRALIA
| IRISH & MICHELLE | [2009] FamCA 66 | |||
| FAMILY LAW – CHILDREN – Equal shared parental responsibility – With whom a child lives – child’s view – issues of credit – alienation of child from parent Goode and Goode (2006) FLC 93-286 | ||||
| APPLICANT: | Mr Irish | |||
| RESPONDENT: | Ms Michelle | |||
| FILE NUMBER: | HBF | 32 | of | 2006 |
| DATE DELIVERED: | 6 February 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 12, 14 & 15 August and 3, 4 and 5 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGuire (August 2008) | |
| SOLICITOR FOR THE APPLICANT | Miss Higgins | |
| COUNSEL FOR THE RESPONDENT: | Mr Waterhouse | |
| SOLICITOR FOR THE RESPONDENT | Ms Eaton | |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER | Mr Fitzgerald | |
| SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER | Ms Wylie | |
Orders
The mother and father have equal shared parental responsibility for B born on the … August 1999 and J born on the … October 2001.
The children live with the father except as provided in these orders or as otherwise agreed in writing between the parties.
The children live with the mother as follows:-
(a)during the Victorian school holiday periods at the end of term 2 and term 3, from the Saturday immediately after the conclusion of the term until the Saturday immediately prior to the start of the term.
(b)in 2009, from the Thursday prior to Easter Sunday until the following Saturday and each alternate year thereafter (with the intent that the children spend part of the school holidays at the end of term 1 with the mother.).
(c)in 2010, from the Saturday immediately following Easter Sunday until the following Saturday and each alternate year thereafter (with the intent that the children spend half of the school holidays at the end of term 1 with the mother.
(d)in the event that the either of the children’s birthday fall on a Friday, Saturday or Sunday from Friday to Sunday in Tasmania.
(e)on the weekend of Mother’s Day from Friday until Sunday in Tasmania with the specific times to be agreed between the parties.
(f)during the Victorian school term for one weekend per month in Tasmania (the time provided in order 3(d) and (e) are to be regarded as the weekend that month) unless otherwise agreed to coincide with Victorian long weekends wherever possible from Friday evenings to Monday (if a long weekend, Sunday if not a long weekend) with the specific times to be agreed between the parties.
(g)in 2009 (and each alternate year thereafter) for the first half of the Victorian summer holiday period commencing on the Saturday immediately after the conclusion of the Victorian fourth term with the specific end dates and times to be agreed between the parties.
(h)in 2010 (and each alternate year thereafter) for the second half of the Victorian summer holiday period with the specific end dates and times to be agreed between the parties.
(i)the mother’s time with the children over Easter is to be regarded as the Tasmanian mid term weekend visit for the mother if not occurring in a school holiday period.
(j)such further or alternate times as may be agreed between the parties from time to time.
The children shall live with the father on the weekend of Father’s Day.
The children shall communicate with the mother as follows: -
(a)by the mother telephoning the children each Sunday between the times of 6:30pm and 7:30pm.
(b)by the children telephoning the mother each Wednesday between 6:30pm and 7:30pm.
(c)if the children are living with the father on Christmas Day, Easter Sunday and/or the children’s birthdays, the children shall telephone the mother between 7:00pm-7:30pm on such days.
(d)at all other reasonable times.
The father will be responsible for three quarters of the air travel ticket cost and the mother one quarter of such cost in respect of the children bought to and from Launceston in accordance with orders 3(a) to 3(h).
Each party shall advise the other of any change to their residential address, mobile telephone, email address and a fax number (if applicable) within 7 days thereof.
The parties be and are hereby restrained from denigrating or permitting any other person to denigrate the other parent to or in the presence of the children.
Each party is hereby authorised to contact the children’s school to discuss the children’s progress, welfare and development.
Both the mother and the father shall notify the other of any significant medical or health issue in relation to the children within two hours of such an emergency occurring or otherwise as soon as reasonably practicable.
The parties shall utilise a communication book or email facilities to consult each other in relation to the children.
Both parties are entitled to attend all events involving the children or either of them including: -
(a)sporting functions;
(b)extra curricular activities which allow for parental attendance; and
(c)school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, school fair, school fundraisers, parent and teacher interviews, canteen duties and social functions.
The mother and father will do all acts and things to facilitate B’s attendance upon a therapist for the purpose of receiving therapeutic counselling to assist with the issues arising from the conflict and her anxiety, grief and loss.
(a)the mother and father will share equally any costs associated with the child’s counselling.
(b)the parties will ensure that the child is presented for such counselling as recommended by the counsellor.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer be discharged upon completion of her obligations arising from these orders being:-
(a) advising the children of the nature of these orders.
(b) provide to B’s therapist a copy of :
(i)these orders;
(ii) the reasons upon which these orders are based;
(ii)the expert report from Mr V;
(iii)the Family Report from Ms F;
All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
This matter be removed from the list of cases requiring determination.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Irish & Michelle approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF 32/2006
| MR IRISH |
Applicant
and
| MS MICHELLE |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Irish and Ms Michelle disagree about parenting arrangements for their children, B (aged 9) and J (aged 7). The father wants the children to live permanently with him in Victoria and their mother wants them to live permanently with her in Tasmania.
The mother is and has been the children’s primary carer and the children have both expressed strong views to remain in her primary care.
Initially, it was the father’s view that the children should spend significant time with him (bearing in mind the geographic circumstances in which the parties found themselves) following the breakdown of their relationship. The father having moved to Melbourne in July 2006, to live with his partner.
Since separation there has been poor communication between the parties and high conflict which has significantly and adversely affected B. The impact of this was that B was becoming emotionally estranged from her father and either suffered or was at risk of suffering serious psychological damage if not psychiatric damage.
The father’s said that the only way to protect B is to change the children’s place of residence (there is no issue that the children should live together as their relationship is exceptionally close and has become closer since the breakdown of their parents marriage). As an experiment, during the trial, the children lived with their father in Melbourne for a period of about 12 weeks.
The impact of that trial period was that the communication between the parties improved and that the changeover with regard to B occurred relatively calmly and her anxiety at changeover significantly improved.
ISSUES
The issues include:-
(a)whether it is in the best interests of the children to live in Victoria with their father or with their mother in Tasmania;
(b)the nature of the father’s household in terms of his care of the children;
(c)the nature of the mother’s household in terms of her care of the children including the impact of her distress arising from the relationship breakdown;
(d)whether B is at risk of emotional regress and not having a relationship or having a significant circumscribed relationship with the father if left in the primary care of the mother; and
(e)the weight to be given to the strong views of the children that they remain in the mother’s primary care.
The mother seeks that the parents have equal shared parental responsibility, the children live with her in Tasmania most of the time and spend time or live with the father on regular weekends and over part of the school holiday period.
The father (in his amended application filed the 23 May 2007) sought detailed and complex orders in respect of where the children should live and what arrangement should be in place for their care.
The essence of the orders sought by the father are that the principal place of residence of the children changes from living with their mother in Tasmania to living with him in Victoria.
In final submissions the Independent Children’s Lawyer said that parents should not have equal shared parental responsibility. The Independent Children’s Lawyer said this was because he has concerns about orders being made for equal shared parental responsibility because of the conflict between the parties. However he said his views were not fixed in that regard and said that he could be convinced otherwise because there was some evidence that there had been a degree of co-operation between the parents.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary intention appears from the context in which the statement is made.
CHRONOLOGY
An agreed chronology was prepared and tendered by the Independent Children’s Lawyer:[1]
[1] ICL3.
Date Application/Events Orders sought/outcome 20 September 2006 Order Interim Parenting Order by consent – children live with the mother 3 October 2006 Form 1 Application Application for Final Parenting Orders filed by Father. 1 November 2006 Order Appointment of an Independent Children’s Lawyer 20 December 2006 Interim Orders by Consent J to spend time with Father during summer break 22 January 2007 Orders Mr V as a single expert 30 March 2007 Single expert report Report released 2 April 2007 Family Report Interviews Ms F interviews mother, father, children, Ms K, S and maternal grandparents 5 April 2007 Initiating Application for Interim Orders and Affidavit Filed by father for J to spend time with him during Term 1 break 1 May 2007 Family Report Report is released 14 May 2007 Order Orders made by consent for J to spend time with father during the June 2007 (term 1) school holidays 23 May 2007 Amended Application for Final Orders Filed by Father 23 May 2007 Initiating Application for Interim Orders and Affidavit Filed by father for B to spend time with him during the June 2007 (term 1) school holidays. 1 June 2007 Response to Initiating Application and Affidavit Filed by Mother in relation to B’s time with father during term 1 break. 1 June 2007 Orders Terms of Reference for Conference of Experts 7 June 2007 Orders Further terms of reference for conference of Experts 23 July 2007 Conference of Experts Report Report released 30 July 2007 Amended Response to Application for Final Orders Filed by Mother 7 August 2007 Day One of Less Adversarial Trial[2] Interim orders agreed and filed with court 2 November 2007 Memorandum Memorandum prepared by Ms F 7 November 2007 Mention Further interim orders agreed and filed with court 24 December 2007 Order Interim consent orders relating to children’s time with father from December 2007 to February 2008 12 February 2008 Mention Further interim orders agreed but not filed with court 11 July 2008 Amended Trial Directions Amended Trial Directions in order dated 11 July 2008 6 August 2008 Updated Family Report Updated Family Report prepared by Ms F is released [2] Although the trial commenced 7 August 2007 it was agreed between the parties and the Independent Children’s Lawyer that the evidence for the primary trial was that evidence provided at the hearing in August 2008 and December 2008. It was open for either party or the Independent Children’s Lawyer to obtain a transcript of the evidence given 7 August 2007 and to rely upon it and cross-examine it as they thought .
BACKGROUND
The father is aged 39 and is in good health. He works in Melbourne and lives in G (a suburb of Melbourne Victoria).
The father is in a de facto relationship with Ms K. The father, Ms K and her 12 year old daughter (S) live together.
The mother is aged 37. She lives at H in Tasmania with the children. Both the father and mother are in good health.
The father works shift work on a roster of four days on and four days off, for two day shifts of ten hours long and two night shifts of fourteen hours long. When the father works day shift he works from 8.00am until 6.00pm. When he works nightshift he works from 6.00pm to 8.00am. The father has nine weeks annual leave and cannot elect when he takes his leave. His income is about $51,610.00 per year and he pays child support to the mother.
The father commenced a relationship with Ms K in January 2006 and they began living together in July 2006.
The father, Ms K and S live in Ms K’s home. The home is a two storey town house which has three bedrooms, three bathrooms, laundry, and a kitchen /living area.
The mother lives in a home at H in Tasmania which is located adjacent to the home of her parents. The mother’s home has three bedrooms and is walking distance from the beach. Both children have their own bedroom and there is a front and backyard for the children’s play.
The homes of both parents are appropriate residences for the children.
The mother is employed in personal services and during school terms she works from 9.00am to 2.00pm. Her parents assist her with the care of the children. The mother has arranged her working hours to enable her to spend significant time with the children.
In 2008 B was in Year 3 and J was in Year 1, both attend H District School.
The parties married in 1995 and commenced cohabitation at the time they married. The parties separated in November 2005. The mother initially lived in the former matrimonial family home in Launceston. The father moved to N to live with his parents.
Throughout their marriage the parties lived in Launceston. In about February 2006 the mother moved, with the children, from Launceston to H.
The father did not consent to the mother moving the children to H but took no action to prevent that move from occurring.
These proceedings were commenced by the father in October 2006, and are proceedings to which the provisions of Div 12A of Part VII of the Family Law Act applies.
A consent parenting order was made by a Registrar of this Court in September 2006. The order provided that the parents have equal shared parental responsibility for the children, the children live with the mother and spend time with the father at various times including taking J to Melbourne. The orders were expressed to be interim orders in so far as they related to time.
An order was made on 1 November 2006 appointing an Independent Children’s Lawyer. Further interim orders were made on 20 December 2006. This order provided that J spend time with the father
In January 2007 orders were made for the appointment of a single expert and a report was released on 30 March 2007.In April 2007 a family report was ordered and was released on 1 May 2007. On 14 May 2007 an order was made for the child J to spend time with the father during Term 1 break and a further order was made on 23 May 2007 for the child B to spend time with the father.
On 23 July 2007 a conference of experts report was released and the matter was listed for the first day of a Less Adversarial Trial on 7 August 2007. The matter has been mentioned as a Less Adversarial Trial on a number of days since that time.
With the consent of the parties and the Independent Children’s Lawyer the evidence to which this matter will be determined is that which is contained within the trial commencing 12 August 2008. It was open to either party or the Independent Children’s Lawyer to obtain transcripts of the evidence given in earlier less adversarial dates and cross-examine the parties in respect of such evidence. None of the parties elected to do so.
Any statement of fact contained in these reasons is to be regarded as a finding of fact unless the contrary is clear from the context.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[3] for the child. The section provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[3] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in s61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in s65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption is found to apply and is not rebutted as not in the best interests of the child, an order must be made in accordance with s61DA for equal shared parental responsibility. If not, the court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s65DAC. That section provides as follows:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The question of the allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s64B(2)). This is because where the presumption of equal shared parental responsibility applies, the court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s65DAA. In circumstances where s65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a court determines what is in the best interests of a child is set out under s60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss60CC(2) and (3) of the Act. Part of s60CC reads as follows:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistence with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(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);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(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;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A court must consider each of the additional considerations separately. A court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In most parenting cases the primary considerations set out in s60CC(2) go to the core of the decision, although they must be taken into account with the additional considerations under s60CC(3).
I agree with her Honour Justice Bennett’s approach in the unreported decision of G and C [2006] FamCA 994 that “the court must evaluate the nature and quality of the relationship” to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’”. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
EQUAL TIME or SUBSTANCIAL and SIGNIFICANT TIME
The decisions of Goode and Goode (2006) FLC93-286 and Newlands and Newlands [2007] FamCA 168 establish that if the presumption of equal shared responsibility applies, which it does in this case, then I need to consider whether spending equal time with both parents is in the best interest of B and J and whether the children spending equal time with both parents is reasonably practical, and to consider making and order to that effect (s65DAA(1)). In this case I need to determine whether B and J spending equal, or substantial or significant time with their father/mother, is “reasonable practicable” s65DAA(5) is of significance in terms of the geographical practicalities.
The father lives in Melbourne with his partner Ms K. The mother lives in H with the children. To spend time with the father/mother on and equal basis would be impossible because of the impracticalities of schooling and travel required to achieve this. Similarly for the children to be able to spend substantial time with their father/mother would mean they would have to travel over 8 hours every weekend, or every second weekend, which would be tiring and impractical for the children. Because of the geographical limitations it is more appropriate for the children to spend substantial time during the school holidays with the parent with whom they do not live.
THE EVIDENCE
There was a family report prepared by a family consultant on 1 May 2007 (“first report”), a memorandum dated 2 November 2007 (“second report”), a further report of the 6 August 2007 (“third report”) and a final report of the 1 of December 2008 (“fourth report”). A single expert psychological report was prepared by Mr V (“the single expert”) and his report dated 30 March 2008 (“the single expert report”)
The single expert and the family consultant prepared a joint document called “single expert report of conference of experts” dated 23 July 2007.
The Children’s lawyer filed an affidavit by Ms R on 17 July 2008. Attached to her affidavit was a report dated 13 July 2008. Ms R is a practicing Psychologist who has been in full time practice since about 1996. Her qualifications were not in issue.
Ms R was initially asked to work with B to assist her working through issues that had developed relating to changeover and her negative feelings towards her father.
Ms R was also asked to facilitate a changeover between parents for the children on 27 June 2008. The changeover went badly. The evidence of Ms R was set out in her reports. I repeat some of it:-
“I was anticipating that [the mother] would need to stay with the children initially, but she carried their bags into my room, told them where she was putting their jumpers and both children seemed very comfortable about separating. As [the mother] was leaving, she reminded [B] that she had forgotten her list of things to discuss with me (see appendix C to Ms [R’s] affidavit). [The mother] handed the issues list to Ms [R]. Both children said goodbye to their mother and seemed perfectly happy to stay [4]……
“That it became obvious that anything one child said, the other child was going to turn it into something bigger and they would just “negatively” feed off each other”.[5]
“At precisely 5 to 7, [B] asked what the time was and when I told her she stopped smiling and began to pout. I said then that we would need to pack up, and go and see if their father was there. [B] started, by what could only be described as, mantra or a chant. She kept repeating, at this stage softly “I don’t want to go”, “It’s my decision”, “I don’t have to go”. By the time, we reached the foyer and I let her father in, [B’s] voice had increased in volume. When the father greeted her, she replied with the exact same mantra and so did [J]. [The father] very quietly and gently, asked what the problem was, to which [B] added to her mantra “I hate you”. From this point on, it did not seem to matter what [the father] or anyone else said all anyone got from either child was the same mantra. Initially, the main difference between [B] and [J], was that [B] began shouting it louder and louder and most of the time [J] just kept moving out of reach of his father and quietly saying the same thing. At this point, I sent [B] back to the room and asked her to draw. As soon as we got out of the foyer she settled down and was perfectly calm”.[6]
[Ms K and S] were standing outside in the cold so I let them in. They sat with [the father] and tried to talk to [J], but he persistently just replied with the mantra. I then took [the father] aside and asked him what he thought we should do. He wanted to try another approach and thought that if we got the children outside, put their bags in the car and locked the building, which I had to do, that the children might begin to communicate more appropriately and perhaps get into the car. I did this, but the moment we stepped outside the building [B] continued to scream continuously and [J] continued the mantra. It didn’t matter who spoke to them or what was said, [J] continued the mantra and [B] screamed. [The father] showed me photographs of the last visit he had with the children, where they were cuddling him, laughing and clearly having a very happy time. He explained that once they got over their first day [B] always settled down and enjoyed herself but that he was concern about [J] because this was the first time he behaved like this. [The father] told them that it was not until [B] was about the same age as [J] that he is now, that he had problems with her at changeover [7]…
After some time, I agreed to move my car and quietly return, just in case the problem was that they were escalating behaviours because I was there. As I walked into the car park I saw the children in the car, the car was stopped, and [B] was trying to climb out the window. [J] was distressed and was hitting and kicking [S], who was sitting in the middle. He must have hurt her as she was crying. At this point, I told [the father] that I was going to call their mother as I was not prepared to persevere. However, I took [B] aside first and calmed her down and then [the father] asked her if she could help calm [J]. [The father] pointed out to [B] that this was hard on [J] because she could calm down quickly and he could not. [B] acknowledged that this was correct and that she could just switch her emotions on and off. As part of the calming process, [the father] decided to show the children the photos on his camera from last time. [J] acknowledged that he had a good time and told his father that he had only wanted to come when they were going to Melbourne. [B] on the other hand, looked at a photograph of herself, on her father’s back, with her arms around his neck, laughing, and firstly denied it was a photo of her. Then she said that she had not enjoyed that time and her father had made her pose like that for the photograph. I saw the photograph and it would have been impossible to force her to pose like that. [8]
[The father], [J] and [B] waked with me to my car so I could get my phone. I phoned [the mother], asked if she would like me to bring the children to her, but she said that she was still at […] and could be there in a few minutes.[9]
I told [the father] and the children that [the mother] was on her way would be there in few minutes. [The father] then said; “okay you’re going back with your mother now so how about a hug for me before you go”. [J] ran and jumped into his father’s arms and gave him a great big hug. [The father] then asked [B] who walked up and leaned against him. He smiled, laughed and said; “You’re very good at leaning, how about a proper hug?” and she obliged. At this time both children were settled. At no time did I ever hear [the father] raise his voice or speak harshly to the children. At time one could tell from her voice that [Ms K] was getting a bit frustrated, and each time this happened, [the father] quietened her with either a hand signal or a quiet word.[10]
When [the mother] arrived, both children ran to the car without a backward glance and [the mother] said, “So it didn’t go so well?” When the children were in the car I expressed concern about the children’s behaviour and how allowing the children to continue this way might negatively impact on their future behaviour. However, [the mother] seemed unconcerned and informed me that the children never caused her any concern when they were with her."[11]
[4] Paragraph 1 on pages 2 and 3 of annexure ‘A” of the affidavit of Ms R filed the 17 July 2008.
[5] Ibid at paragraph 2 on page 3.
[6] Ibid at paragraph 3 on page 3.
[7] Ibid at paragraph 4 on pages 3 and 4.
[8] Ibid at paragraph 1 on page 4.
[9] Ibid at paragraph 2 on page 4.
[10] Ibid at paragraph 3 on pages 4 and 6.
[11] Ibid at paragraph 1 on page 5.
Ms R said that if she had been better informed she would have handled the matter differently.[12] She said that if the family consultant would assist with the changeover it would be of assistance. That person needs to know both parents. She was impressed with the family consultant’s insight.
[12] Ibid at paragraph 1 on page 2.
Ms R says that B seems to be developing a serious personality disorder. Further, B seems to have control over her mother and as such her mother should develop skills to manage that behaviour and control that behaviour.
Ms R expressed that if B remains with the mother in the circumstances how they presently stand, there are significant psychological and behaviour risks to the child.
In cross-examination by Mr McGuire (the father’s previous counsel) Ms R described the experience as:
“The worst experience I have ever had”.
This must be seen in the context of this expert having been a primary school teacher from 1965 to 1974, a guidance officer from 1976 to 1996 and a Psychologist since that time.
Ms R’s view was that both children and the mother needed psychological assistance.[13] Ms R’s evidence was seen in the context of her limited observations of the children and the parents.
[13] Ibid paragraph 2 of page 6.
Ms R’s evidence was that it may be of value for the children to spend a significant amount of time with the father, eight to twelve weeks, so that he can put in place boundaries for the children in any broader context. In her limited observations of the father Ms R described him as a caring and intelligent man.
At that changeover, Ms R said a list was handed over by the mother on behalf of B. Ms R said the list was of concern. It set out:-
“I don’t want to go with my father because he tells lies, he hurts me, he left our family and he has got a girlfriend and I don’t like her. I like being with my mum because she doesn’t hurt me, she doesn’t tell lies, she didn’t leave our family, she doesn’t have a boyfriend and she cares about me so much more than what my father does”.[14]
[14] Ibid Paragraph 1 of annexure “C”.
Ms R believes these are the views of the child but has concerns about other material in that “list” which is different from material that has been produced to her being the work of the child from school. The language seems fairly mature. Whilst the child is intelligent she is concerned that there has been, at best, passive undermining or at worst positive undermining. The views of the child must be seen in contrast to the document produced by B in February 2008[15].
[15] Exhibit F1.
Ms R said:-
“The behaviour displayed by these two children is not normal. Behaviour is not one would expect from children who are genuinely frightened of their father. While children do perseverate one thing when they tantrum because they have been denied something, they want, this was too well orchestrated. Moreover, the way they reacted, particularly [J], when they knew I was going to ring their mother, belies the fact that they were in any way frightened or intimidated by their father. Perhaps had I known the background a little better, and spent time with both parents separately and individually, I might have handled things differently. I suspect these children are never going to have contact with their father, if they remain in their mother’s care, then their mother needs to be the one who is responsible for making them go to their father. In other words, she needs to give them permission rather than helping them develop strategies so it is always traumatic and virtually impossible to make the transfers safely.[16]
If things continue this way, these children are going to learn that nobody can persuade them to do anything that they choose not to do. All they have to do is refuse to listen and to chant whatever it is that they want. Unfortunately, this is likely to backfire on [the mother] when the children are older, as they will soon realise hat they can use the same tactics on her. More importantly, these children are slowly indoctrinated into believing that their father is cruel and unkind and likely to hurt them, when this is not the case. From experience with adult clients, this could have devastating effects on them, when they are old enough to understand what has happened.[17]
When I read [B’s] notes, the section where she wrote; “I hate it when mum has to go to court because I get worried that I might have to live in Melbourne” concerned me, as this sounds as if her mother or someone must have been discussing the matter with her. This was the reason that I tried to check it out tentatively. It is almost if, the children were deliberately encouraged, to try to prove all things that [B] had written in her notes, by behaving in a way that might encourage [the father] to restrain the children in order to keep them safe, so that they could be represented negatively.[18]
Perhaps the most concerning thing is that after collecting the children [the mother] as managed to reinforce all her own negative thoughts and feelings about [the father], with the children and to present him as an aggressive person, which he was not. Furthermore [B] and [J] have been attain encouraged to run away from their father, and to climb out of car windows while they are moving. [19]
Both these children need psychological help, but unfortunately it will be very hard for anyone to work with them when everything is being undermined at home. It is important for the court and everyone involved being aware that in these cases it is not appropriate to have children attend a psychological appointment a 6.00pm and expect the psychologist to facilitate the changeover after the first session unless the issue is only a parental one and has not become a children’s problem. It probably would not be appropriate for the psychologist to facilitate contact until there was virtually no resistance from them when going to their father. I think that [the mother] probably needs more help than the children do, in learning to accept the importance of the children having a positive relationship with their father. After this experience, it would be unlikely that I could work successfully with the children or their mother.[20]
It is very hard to know what might be in the children’s long-term best interests. If the court were to consider placing the children with their father, then it would be essential that both children receive regular psychological support. It would be equally important for the mother to receive regular ongoing psychological help, so that she could learn to cope appropriately when she did see the children. It would be devastating for the children, if their contact with their father (sic) were to become even more dysfunctional. When a mother tries to sabotage a father’s contact with the children, there are clearly a lot of serious underlying problems to be resolved. Perhaps another alternative that could be considered would be for the children to stay with their father for a period of time, while their mother receives appropriate help. Unfortunately, in these cases there is never a perfect solution.”[21]
[16] Paragraph 2 on page 3 of annexure ‘A” of the affidavit of Ms R filed the 17 July 2008.
[17] Ibid at paragraph 3.
[18] Ibid at paragraph 4.
[19] Ibid at paragraph 5 on pages 5 and 6.
[20] Ibid at paragraph 1 on page 6.
[21] Ibid at paragraph 2.
Her evidence was that at that time the children need permission from their mother to separate and they do not have it. This expert said:-
“These children are being slowly indoctrinated into believing their father is cruel and unkind and is likely to hurt them, when this is not the case.[22]
[this could have] devastating effects on them [the children] when they are old enough to understand what has happened.[23]
It is almost as if, the children are deliberately encouraged, to try and prove all the things that [B] had written in her notes and behave in a way that might encourage [the father] to restrain the children in order to keep them safe, so that he could be represented negatively”.[24]
[22] Ibid at paragraph 3 on page 5.
[23] Ibid at paragraph 4.
[24]Ibid.
I accept Ms R’s evidence.
After this disastrous attempted changeover the mother took the children to see a medical doctor. Ms R said, and I accept, that this action simply confirmed the children’s belief, that the father was a risk to them.
Ms R expressed concerns about the lack of discipline with B is so dominant over the mother. Ms R observes:-
“It would be devastating for the children, if their contact with their mother (sic) were to become even more dysfunctional”.[25]
[25] Ibid paragraph 3 page 6.
Evidence was given by the family consultant and the single expert in accordance with their respective reports.
The way the evidence was given in these proceedings was that Ms R gave her evidence first whilst the single expert and the family consultant sat in court. The single expert and the family consultant then gave evidence jointly.
Ms R remained in court during their evidence which was given on 12 August 2008.The qualifications of the single expert and family consultant (in their respective areas of expertise) were not challenged. The single expert was appointed pursuant to an order made by this court on 22 January 2007 and he conducted interviews of the mother, the father, the children, school principal and teachers, the school social worker and Children’s Contact Centre Co-ordinator and a Psychologist between 6 February 2007 and 21 March 2007. His report was dated 27 March 2007.
I have had regard to the matters set out in the single expert’s report, albeit, it was some twelve months old at that time. He has seen the reports of the family consultant, he had seen a paper prepared by Dr Janet Johnson[26]. The single expert observed that B had on more than one occasion, attempted to climb out of the window to avoid time with her father but then appeared having enjoyed the time with her father. He said that her behaviour was concerning in that he said, and I accept, that it appeared that B was:
“developing a parallel reality which could develop into disassociation and perhaps could lead to a more persistent disorder”.
[26] Exhibit ICL2.
This was more serious now than when he saw her in March 2007.
In the single expert report[27] he said:-
“The information in this assessment indicates that generally [B] is a well adjusted child and does not have a broad pervasive problem that significantly interferes with her ability to function. She appears to have a problem which is focused on and relates to a rejection of her father and as such it is not appropriate to conclude that she has a diagnosis of a mental disorder. [B’s] behavioural symptoms do not satisfy any of the sets of criteria for a particular mental disorder as defined in the DSM IV-TR”.
[27] Paragraph 97.
The single expert moved from that view at that time. He observed that the separation of B’s parents has been a major shock for her and has resulted in trauma and emotional adjustment. There has been little emotional counselling provided to B and this is problematic. In August 2008 I made an order for counselling for B. This occurred in Melbourne but not in H.
In August 2008 I was coming to the view that the mother, either intentionally or unintentionally, had transferred her feelings of rejection and anger at the father to B. Further that J, (who had previously seemed to be immune from this) was then heading down the same path as B and was, from time to time, rejecting changeover with the father in circumstances where there is no reason to do so. This view was confirmed at the conclusion of the hearing.
I am satisfied, on all of the evidence that B was exposed to negative comments about the father from her mother and perhaps her family.
I accept the evidence of the single expert that B is a clever girl who is very assertive and her behaviour may be described as “wilful”.
In his report the single expert relied upon a paper from Dr Johnson and in his report discussed Gardner's theory of Parental Relation Syndrome.
The term Parental Alienation Syndrome (“PAS”) and has not been generally accepted as a syndrome. In 1999, the Family Court established a taskforce to study children who had become estranged from one of their separating parents.[28] The results of the research indicated that children’s rejection of a parent can be for multiple reasons. The research of Dr Janet Johnson and others rejected Gardner’s theory of PAS and found “no convincing evidence to support his one-dimensional theory that an alienating parent is primarily responsible for a child’s alienation”. Similarly, they did not find evidence that “family abuse was primarily responsible for a child’s rejection of a parent”. The research of Dr Johnston and others is widely accepted in Australia and Dr Gardner’s PAS has been widely discredited.[29] The Court has rejected or alternatively has not accepted PAS as a concept and in the case of C & C [2004] FamCA 708 Justice Moore described the term “Parental Alienation Syndrome” as a “descriptor unsuited to the discussion of complex dynamics involving at least three people and it is further unsuited because as a diagnosis it could lend itself to automatic or prescriptive treatments”[30]. Her Honour also observed at paragraph 84 “it is more that serving the interests of a child requires a solution to difficulties confronting that child to be tailored after considering a whole range of factors specific to that child, including but by no means limited to the child’s age, stage of development and temperament. One size does not necessarily fit all”.
[28] Parental Alienation Syndrome “Fact Sheet”.
[29] Ibid.
[30] Paragraph 85.
In terms of the question of Parental Alienation Syndrome I have had regard to the decisions of the Family Court in Lane and Arthurs [2006] FamCA 87, Parker and Elliott [2003]FamCA 990, Summers and Nathan [2005]FamCA 1406 and in particular in this later case where the Court noted that the evidence of parental alienation had been previously recognised “as a substantially established area of knowledge” however concluded that “in light of the [reference] articles and a large body of recent literature, I am not persuaded that parental alienation syndrome has been established irrevocably within a substantial established area of knowledge allowing for receipt of expert evidence”.
In cases such as this I am required to make an order that promotes the children’s best interests taking into account their relationship with their parents, a change of residence or some other order.
I am satisfied that for a variety of reasons B’s relationship with her father is being damaged. This includes but is not limited to:
(i)the marriage breakdown,
(ii)the child’s anger at the father leaving the relationship,
(iii)the impact of the separation on the mother and;
(iv)the mother’s family,
(v)the impact of the mother’s distress on B,
(vi)B picking up negative feelings towards her father and;
(vii)the encouragement of those negative feelings as set out by Ms R in her report.
It is unclear whether the impact by the mother and/or her family is intentional or unintentional. In its most benign, it lacks insight.
The question for me is whether part of the problem, which I find, comes from the mother is lack of insight in which case the evidence of the single expert is that it can be treated. Or alternatively whether the mother proactively undermines the children’s relationship with their father.
If it is the later it is clear on the evidence of all experts that would involve a lack of the mother’s bona fides and that the situation is unlikely to change and is not amenable to repair by treatment of the mother.
In August 2008 the family consultant, in particular, strongly recommended that a case management process be put into place however the evidence was that there was no such facility available under the control of the court.
In her first report the family consultant observed:-
23.“Of the gravest concern has been [B’s] violent emotional reactions to seeing her father resulting in tantrums and self harming behaviours as reported by professionals at the Contact Centre. [B] has clearly indicated that the thought of seeing her father makes her anxious and that she experiences overwhelming feelings of hurt, anger and rejection”
24.What have not being explored however, are the underlying factors behind [B’s] anxieties surrounding the relationship with her father. Despite [B’s] feelings of sadness and rejection after the family breakdown, she has a close and loving relationship with her father and desperately wants to develop and maintain this. [B] is a bright young girl for her age and understands that in spending time with her father she is being disloyal to her mother. This was made abundantly clear when [B] initiated a play-date with her father, however requested that her mother not be told about it.
25.[The mother] has stated outwardly that she is supportive of [B] having a positive relationship with her father; however it is clear that [the mother] does not have the capacity at this time to promote a positive relationship between the children and their father. It is strongly recommended that [the mother] attend a ‘Parents in Contact’ programme with Relationships Australia if she has not already done so and attend personal counselling around her own issues relating to the relationship breakdown.
26.Given that I observed both [J] and [B] eagerly and competitively talking over one another in order to gain their father’s attention during the time they spent together, I find [the mother’s] claims that they adamantly refuse to take their father’s phone calls puzzling. [The mother] has clearly stated that she believes that ‘she can not make the children talk to their father’ and that ‘they should not have to if they do not want to’. [The mother] therefore, permits and by inadvertent omission encourages the children to refuse to take their father’s calls, be rude and abrupt to him including hanging up on him. It is my assessment therefore, that the children fail to talk to their father over the phone out of loyalty to their mother rather than their wish to spend time with their father. As a result of this emotional pressure, I have serious concerns for both children’s emotional wellbeing and the long-term implication this may have upon their future emotional and social development.
27.Making Orders that [B] spend regular time with her father in itself will not resolve these complex issues. I was informed via correspondence from both parent’s lawyers that the play-date initiated by [B] had taken place and that this was a positive experience for [B], however within a short period of time [B] is now refusing to see her father or speak with him on the phone. Given [B’s] history, this was not unexpected. While [B] is living with her mother and emotionally dependent upon her, it is essential for [B’s] emotional safety that she remain loyal to her mother and her mother’s (expressed or merely perceived wishes), despite her need to share an emotional connection with her father. This conflict of needs and their lack of resolution is currently placing an enormous burden on [B] and may have serious implications for her current and future psychological welfare.
28.[J] does not experience the same emotional pressure involved in spending time with his father. [The father] has shared that [J] has also told him that he does not want to see him or speak to him over the phone, however given [J’s] age and stage of development, [J] also blurts out that his mother has told him to say this. As a result [J] is not experiencing the same emotional distress as expressed by his sister with regard to spending time with father, however as he matures he may well develop similar psychological distress.
29.Both [the mother] and [maternal grandparents] have expressed their concerns around [B’s] emotional state and the difficulties in parenting such a strong willed young girl. [The mother] and [maternal grandmother] have expressed their belief that [B] ‘should not be made to see her father if she does not want to or speak to her father if she does not want to’. It is therefore not surprising; that they are finding difficulty in providing discipline for [B] while she believes that she can do as she wishes. It is extremely important for [B’s] long-tem development that she is given consistent boundaries and caregivers who are able and willing to provide this. It is therefore strongly recommended that [the mother] and [maternal grandparents] (as alternative care-givers) seek assistance from parenting courses.
As a consequence of these matters the family consultant makes recommendations:
30. “That as a priority, [the mother] attend ongoing therapeutic counselling to assist her in identifying and separating her own issues from the wishes and needs of her children. That [the mother] attend the “Parents in Contact” programme if she has not already done so.
31.That [B] attend regular therapeutic counselling to address her grief over her parent’s separation and subsequent relationship issues. That both parents agree upon a neutral appointed counsellor for the purposes of this counselling.
32.That [the mother] and [maternal grandparents] attend a parenting programme to assist them in developing appropriate behavioural techniques for the children.
33.That there be special provisions made for the handovers with regard to [B] and which may involve a therapeutic counselling component (if required) prior to her spending time with her father.
34That [J] and [B] spend time with their father for half of all the school holiday periods.
35.That [J] and [B] spend time with their father every second weekend or as close to this regime as can be organised.”
Since that time there was some improvement as observed by the family consultant in her second report. In her second report the evaluation was:-
39.“The parents have been in conflict regarding the parenting arrangements for their children for a number of years. This ongoing dispute has been emotionally strenuous for both the parents and their children. While a number of various Interim Orders have attempted to provide opportunities for the children to spend regular time with both their parents, the behaviour of the children (particularly [B]) has prevented them from spending consistent time with him.
40.It is the father’s application that the children relocate to Melbourne to live with him. He believes that this will enable them to maintain a relationship with both of their parents while providing them with the consistent behavioural boundaries they require. [The father] feels that if the children remain living with their mother that she will continue to undermine each of the children’s handovers, preventing his future time with the children, and failing to promote his relationship with them.
41.[The father’s] frustration over his lost time with the children is understandable, as he has demonstrated his ongoing commitment to the children admirably over a number of years, despite the distance and financial expenditure involved in maintaining these relationships. [The father] asserts that a number of interim arrangements have been adopted in an attempt to resolve this dispute, however to no avail. It is therefore [The father’s] belief that the children’s interests are best served if they were living with him in Melbourne.
42.Despite the complex relationship dynamics, both between the parents and the parent/child relationships, the difficulties surrounding [B’s] behaviour management and complexities involved with regular inter-state travel, the children have spent significant time with their father over the past twelve months. It is important to recognise the successes this family has achieved. From August 2007 until March 2008, both children spent approximately every second weekend with their father in addition to extended Christmas and Easter school holiday time. This is a noteworthy improvement upon the time the children spent with their father in previous years. The time [the father] has spent with the children over the last twelve months is certainly not the amount of time he would have liked to have shared with them however to suggest relocating the children interstate on the basis that they are unable to maintain a relationship with their father, appears premature given that [the children] have spent more time with their father during this period than many other children who are subject to the commonly made orders of shared school holiday time with their inter-state parent.
43.As stated previously, the children had been spending time with their father on a fortnightly basis and they spend extended holiday time with their father during the Christmas and Easter school holiday periods. Apparently, this routine ceased after [B] returned from her Easter holiday with new grievances against her father. It is important to highlight that due to the lack of parental communication, [B’s] complaints against her father were not addressed.
44.Paragraph 27 focuses upon the benefit of the parents having regular opportunities to raise concerns, discuss issues and to engage in future planning face to face with the assistance of a skilled mediator. Normally it is assumed that by the time parents reach this ‘back end’ of the legal process that all avenues of family dispute resolution have already been exhausted. In this matter however, [the father] lodged his application in May 2006, prior to phase 1 of the implementation of the dispute resolution provisions imposing the requirement for such dispute resolution prior to the lodging of an application to the Family Court.
45.The ‘dispute resolution type’ of intervention undertaken on the day of interviews was highly effective in engaging the parents in discussing issues pertaining to the children’s discipline and the parental communication. The parents were also able with assistance and support to develop a ‘plan of action’ for the next handover (which was successful.) This is strong evidence which suggests that with the on-going assistance of a skilled mediator the parents are able to make joint decisions regarding parenting arrangements and they do have the capacity to co-parent their children.
46.Better communication between the parents may also alleviate some of [the mother’s] concerns regarding [B’s] feedback from time spent with her father. It is normal for children to make complaints regarding their parents being ‘unfair’ regarding the consequences employed in disciplining them. It is important however that [B] (and [J]) be given clear messages that each parent is supportive of the other parent’s decisions regarding parenting issues, including discipline. This consistent approach will assist the children to trust and submit to the parental authority given to both of their parents.
47.[B’s] behaviours and attitudes towards her father are concerning. It appears that [B] has been positively reinforced to behave in negative ways when she is anxious or stressed. It is essential that [B] is given consistent boundaries with regard to her discipline as she has been receiving mixed messages from her parents for too long. It is strongly recommended that [the mother] attend a parenting programme to assist and support her in setting firmer boundaries for [B] (and [J]). This assessment has highlighted the power imbalance between [the mother] and [B]. This imbalance needs to be addressed as a priority as [B’s] strong nature will only increase as she matures and [the mother] will need to become assertive in addressing [B’s] challenging behaviours.
48.The first Family Report recommended therapeutic counselling for [B], however unfortunately, this recommendation was unable to be accommodated. It is strongly recommended that counselling for [B] be organised as soon as possible”.
The family consultant’s view was that changeover had improved over the last twelve weeks, notwithstanding the events on 27 June 2008. She recommended that the children remain in the mother’s care and that the parties persist in the current arrangement.
The family consultant conceded that at the commencement of the interview of her third report she indicated to the mother that she was going to recommend a change of primary residence. It was the changes over the last twelve months and the mother’s responses set out in those reports and the mother’s engagement of the father that brought about the change in her recommendation.
There were a number of issues of fact between the family consultant and the mother and the maternal grandmother. On balance I prefer the versions of the family consultant.
The views of both experts were that there were a complex set of inputs which gave rise to a difficult situation in so far as the children are concerned. The experts agreed and I accept that it is important for these children to have a relationship with both of their parents and that whilst they are not alienated at this time, B in particular is on her way to rejection and there seems to be an indication that J may be moving likewise. The children were rejecting time with their father.
The family consultant and the single expert agree the time the children had spent with the father over the twelve weeks has been good for the children. The evidence was that there is a discipline problem with B having control of her parents, particularly the mother, I accept that evidence.
The single expert said and I accept his evidence that B was “stubborn and wilful” and that “the father walking away would not be necessarily a good outcome although it may end up being the less damaging outcome”.
In August 2008, in terms of the children living with the father, that would have involved a significant change for them although the children seemed to manage well when they are with the father as the changeover is parallel behaviour, which the single expert referred to.
There is a communication difficulty between the parents which is shown in the mother, accepting without criticism, B’s views about alleged injustices during the time B spent with the father in Easter 2008.
Included in the concerns of B were her concerns that she feels deserted, that the marriage break-up of her parents happened suddenly and she was upset that the father has broken up the family and upset the mother. The evidence of the single expert was that can be healed over time, provided it is properly addressed.
It was suggested to the single experts, in cross-examination, that the problem in Easter 2008 was that the children came back to the mother and then had to see the father the following weekend in Launceston which involved a two hour drive from H. I note this was done by consent and I accept the evidence of Ms R that a trip to Launceston in itself for two hours ought not to be a major problem, notwithstanding J’s occasional car sickness.
In August 2008 the concerns of the single expert was the influence of B’s approach on J, particularly shown up in 27 June 2008.
Irrespective of the outcome of these proceedings, there is no reason why the children cannot maintain contact with the other parent via telephone, Skype, email etc.
The experts recommended a trial period of time with the children living with the father. I accept the evidence that time is running out for arrangements to be put in place which can enable the children to have important relationships with both parents.
The first report prepared by the family consultant was the first report she had prepared after commencing employment with the Family Court. The family consultant’s background was in the State Welfare jurisdiction where most cases involved having a case manager. Such case management facility is not available in the Family Court jurisdiction. There is no evidence that it is available in the private sector (at least in Launceston or H).
In terms of these children, the view of both the single expert and the family consultant was that:-
(a) B needs extensive therapy at least two hours fortnightly. In that regard the experts recommended Ms U. (I made an interim order to that effect). In terms of that therapist she ought to be briefed by Ms F and have available to her the expert report and family report.
(b) The parents would need to undertake the “One Two Three Magic” as soon as possible. This would seem to be a further parental guidance as both parents have apparently undertaken the Parenting after Separation Course.
(c) There would need to be a family therapist appointed to conduct family therapy between the parents including mediation. Bearing in mind that there is no facility such as this within the Family Court, this would need to be done privately. It would need involvement of the therapist both before and after handover plus one other. Thus it would need about three sessions per month. This therapist would need to be an experienced psychologist. That therapist would also need to case manage the remainder of the issues to ensure B’s attendance at therapy two hours per fortnight, the parents undertaking and completion of the “One Two Three Magic” course and brief and debrief the parties before and after changeover. It was the evidence, which I accept, of Mr V that this was the most important feature of the plan. Neither single expert nor the family consultant could provide the name of anyone who could undertake this work.
The evidence of the experts was that doing nothing would leave B in real risk of significant psychological harm bearing in mind the evidence of her parallel realities. The single expert was concerned about a residence changeover as he relied upon the literature, in particular the research of Dr Johnston in her publication[31].
[31] ICL 2.
Fundamentally both the single expert and the Family Consultant said the parents need to work with each other but that has not occurred. The issue is whether the mother is bona fide and will change and will genuinely give the children permission to spend time with the father or whether she will not allow them to do so. The other significant question is the lack of boundaries by the mother, at least with regard to B’s interaction with the father.
The experts have concerns in relation to the change of the primary parent in terms of the loss of the maternal family, grieving for the mother, loss of school, peers and the like. I have had regard to these concerns.
This has to be seen in the light of the concerns the single expert has as to B’s behaviour and personality development which is under great threat.
As the single expert said:-
“[The father] spoke of a very difficult relationship between himself and [the mother] and her parents following the separation and said that he believes that they have continued to attempt to undermine his relationship with his children. He is convinced that they have an ongoing vendetta against him. I asked [the father] to be more specific and explain why he should think this was the case. He gave some examples and said that [the mother] had called him a pig on [J’s] birthday in front of the children and that he had many other examples of things that [the mother] and her parents had said to the children about him that were very detrimental to his relationship with the children.[32]……
I rang [the father] on 20 February 2007 after my session with [the mother] and [B], and informed him that it would not be possible to conduct a session with [B] because of her strong refusal to take part. [The father] was disappointed and made more comments about his fear that [J] was being influenced in the same way that he believes [B] had been and that he was becoming more difficult to speak to on the phone. I explained to [the father] that during my session with [the mother] and [B] I had observed some positive behaviour on the part of [the mother] in her encouragement of [B] to be more positive towards him and that possibly things might change for the better in time. [The father] found it very difficult to accept this information and attempted to convince me that it was not possible that [the mother] could make a positive attempt to encourage [B] to see him. He then repeated a number of things that have been said by various people in the past that convinced him that [the mother] continues to oppose any contact between [B] and himself”.[33]
[32] Paragraph 42 of the single expert report dated the 30 March 2007.
[33] Ibid at paragraph 51.
The family consultant was quite positive in relation to the father’s approach to B. The father had apologised to B about leaving and that he approached B’s grief in a compassionate way and had done so very well. The conduct of the father has generally been observed as very kind. Yet despite this, as the family consultant said at paragraph 17 of her first report:
“Upon meeting her father [B] was quite but approached this meeting in a business like manner and with my assistance worked through her “bad things that Dad did” list. [B] clearly explained to her father why she was angry with him and how hurt she feels. [B] explained to her father that she did not believe that he loved her anymore and how sad this made her feel as she felt that he had loved her before he left the family. Using her list, [B] raised every issue with her father and explained how she felt. After acknowledging each of [B’s] points, [the father] assured [B] that even though he left the family and has a new girlfriend and step-daughter that she was not to blame for his leaving and that he still loves her as she will always be “his girl”.[34]
[34] Paragraph 17 of the Family Report of 1 May 2007.
Further, the single expert said at paragraph 104 of his report:-
“The separation itself appears to have been a major shock for [B] and would have resulted in a degree of trauma and emotional adjustment and processing necessary to understand what was going on. [B] would have observed her mother in a very distraught state and it is likely that she formed the impression that her father had hurt her mother by leaving the family. [B] herself would have felt deserted by her father because he was no longer at home”.
I accept the evidence of the single expert and the family consultant that the father has shown good faith towards [B] and good faith towards the mother, albeit he still blames her for much of the difficulties on changeover but he acknowledged he was also partly to blame.
They have concerns about the mother’s continuation of encouraging the children such as:-
(a)handing over B’s note on 27 June 2008;
(b)taking the children to the doctors after that day;
(c)her short form of communication with the father at the return of the children on 27 July 2008;
(d)her failure to ask the children to say goodbye to the father;
(e)her rigid approach to telephone calls as seen in the text messages on 28 July 2008.
In August 2008 I raised with the experts what could be done within the construct of the trial to try to find a solution for B in terms of what amounts to her best interests.
The expert’s evidence was that there needed to be proactive case management and that the mother needs to, in the words of Ms R, “give real” permission to B to spend time with the father. There is real doubt that can occur.
The family consultant provided a further family report of 1 December 2008.[35] In that family report the independent expert recommends that the children live with the mother and spend significant time with their father. The family consultant observed in her report and expanded her evidence that:-
“the dynamics of the case have changed in that the changeover now appears to be working and that both parents have taken a step back from the conflict and adopted in some ways a much more child focused approach”.
[35] Exhibit ICL4.
The issues which now concern the family consultant are the questions of whether there will be a retreat from the present arrangements which are working well and whether the parents are adopting a far more child focused approach on the one part, and the significant desires of the children to live primarily with the mother. The family consultant’s evidence is that the children have a close and intimate relationship with the mother and want to be with her.
One of the factors I have considered is the age and maturity of the children in relation to those views. At paragraph 43 of the final report the family consultant says:
“both children … have consistently maintained that they wish to continue living with the mother and maternal grandparents, and they continue to identify their mother as their primary emotional support. As much as the children enjoy spending time with their father, both the children verbalised that they become distressed and miss their mother when they are separated from her for extended periods of time”.
I accept they are deeply held views of the children and are reflected in the expressions which the family consultant noted about the home sickness of the children (particularly B).
At paragraph 36 of the fourth report B describes her desire to have telephone communication with her mother and with her avoiding some of those because of the sadness of the home sickness that arises in terms of that.
The family consultant was particularly impressed by both parents during a video link up when arrangements were made for the children to go to Melbourne to live with the father. The mother participated in a positive way and made it clear to the children that it was not “up for debate”. The father had done likewise in terms of preparing the children for arriving including having school uniforms etc.
I generally accept her evidence although acknowledge that her evidence given through the perspective of her close relationship with the father and in circumstances where she and the father see it as a committed long term relationship.
I do not accept Ms K called the mother and/or the children’s maternal grandmother “cuckoo” I am satisfied that there is some language that may be used in respect of the mother and her family which is inappropriate. However on the evidence before me I am satisfied that once this matter is finally determined the anxiety at least in the household of the father and Ms K is likely to reduce.
Read into evidence for the father was affidavits of the children’s paternal grandparents. It is not in dispute that they have a good relationship with their son, Ms K and the children. Prior to separation their relationship with the mother was strong but somewhat reserved and after separation this has been very strained with the mother not acknowledging the paternal grandmother. The paternal grandmother has assisted the father with his time with the children and maintained a relationship with the children since separation.
There was an affidavit of Ms D[39] filed by the father in support of his case. Ms D is a friend of the father and Ms K. Her evidence is that the children relate well to Ms K and the father when in Melbourne. That is no longer an issue.
[39] 11 August 2008.
The mother gave evidence and was cross-examined on her affidavit. The mother relied upon her affidavits filed 28 November 2008 and 28 July 2008.
The mother was a very nervous witness who is clearly not as articulate as the father. Her evidence was, and I accept, that she does not relate well to conflict and tends to be agreeable. From time to time during her evidence it was necessary for me to remind her that it was alright if she did not agree with the counsel who was cross-examining her.
The assessment of the family consultant was that the mother was adversely affected by this litigation and went to great pains to make sure that she did not breach the orders, particularly since the difficult events of July and August 2008.
The mother gave evidence that the impact of the attempted changeover observed by Ms R, the evidence of the experts in terms of their overwhelming concern for B and beginnings of concern for J, the arrangement entered into where the children spent significant time in Melbourne have had a profound effect on her. The mother has undertaken personal counselling, parenting training and sought guidance from the family consultant to try and overcome the difficulties for the children and herself.
The mother is genuinely concerned for her children and genuinely believes that the best place for them is living with her in her home at H and having regular time with their father.
The mother has learnt better parenting skills and is better able to manage B. On the evidence before me it is clear that both B and the mother are both very sensitive people and the mother is clearly challenged by the father in a number of ways and the operation of the father’s home is seen by the mother as a challenge to her parenting. .
The way the mother interacts is quite passive and, as I have said earlier, she resiles from conflict. She is not flexible but she tries to learn. She has learnt some parenting skills, at least one parenting skill from the father in terms of approach. She has learnt to be a little flexible as were the arrangements to give the father extra time with the children just before the final meeting with the family consultant.
The mother has improved her communication with the father since August 2008 to the extent that she is able to communicate effectively with the father via of emails and text messages.
An example of the mother’s difficulty with regard to parenting was exhibited during the hearing where the parties had been unable to reach an agreement as to Christmas/New Year holiday arrangements. The father proposed an arrangement. The mother wanted a different arrangement, not less but just something different. It took her some time to come back to the court through her legal practitioners and then what she sought was the same as the father. It is a challenge for her to negotiate with the father. This will no doubt make equal shared parental responsibility a difficult concept for both parties, although I am relatively confident they can work through it.
I generally accept the evidence of the mother although, as is the case with most witnesses, it is seen through her own subjective eyes.
The mother was criticised in relation to B having a diary with a padlock. I do not treat that as any basis to criticise the mother and I make no adverse finding as a consequence of that.
There are some issues which are not in dispute. The children are safe in both households. Both children have a good relationship with their parents although they are primarily attached to the mother.
In H the children have their school, their surroundings, their friends both inside and outside school, and their activities both inside and outside school. But for the concerns which are articulated by the experts and were raised in the material provided to the court in August 2008 this would not be a case where one would consider moving the children from their primary carer, where the children have expressed strong views to remain with her, to another carer.
What is not in dispute from the evidence is that the mother found the break-up her relationship from the father very traumatic. Such was her upset that this was conveyed to the children and in particular B. This led to B strongly identifying with the mother. The single expert says at paragraphs 104 and 105 of his report:
“The separation itself appears to have been a major shock for [B] and would have resulted in a degree of trauma and emotional adjustment and processing necessary to understand what was going on. [B] would have observed her mother in a very distraught state and it is likely that she formed the impression that her father had hurt her mother by leaving the family. [B] would have felt deserted by her father because he was no longer at home.
Soon after this [the mother] and the children moved closer to the maternal grandparents for support and a certain amount of distress would have occurred as a result of moving to [H]. The history of [the mother] and [father’s] ability to work together in arriving at amicable solutions and arrangements following the separation does not appear to be good and [B] would have observed the difficulties in their relationship”.
The family consultant made similar observations of the impact of her parents separation has had upon B and the allegiance she feels to her mother at paragraph 27 of the first report she says:
“While [B] is living with her mother and is emotionally dependent upon her, it is essential for [B’s] emotional safety that they remain loyal to her mother’s (expressed or merely perceived) wishes, despite her need to share and emotional connection with her father.”
The mother is now beginning to overcome the grief of separation and beginning to adopt better parenting abilities with regard to B. Notwithstanding this the mother still has concerns, as she set out at paragraph 107 of her affidavit[40]. The mother says:
[40] Affidavit of the mother filed the 28 July 2008.
(a) one of her biggest concerns is the disruption to the children’s family unit and their stability if they were to move to Melbourne to live with heir father. This is because the mother has been the primary care of the children since separation in 2005 and they have always lived with her. The mother is worried the move could be “extremely detrimental for both children but in particular for [B] in her social, emotional and psychological aspect”.[41]
(b)she is worried about the impact the move would have on the children’s schooling, moving from a small country school where they are well settled to a larger school in Melbourne, and the consequences which would flow from this such as the loss of their friends and peers.
(c) she has concerns that the father will not to be able to be able to care for the children due to his work commitments. She says as a consequence a “large amount of the care will fall on [the father’s] partner,[42]”which to the mother’s knowledge has been limited.
(d)the father does not have any family support in Melbourne which means that if he or his partner were unable to care for the children alternative arrangements would need to be made.
(e)about the children’s living arrangements. The mother the father’s home only has three bedrooms and it is inappropriate that the children should have to share a bedroom if they were to live with the father.
(f)the fear of the father relocating to another state because of work commitments. The mother believes her concerns are justified because the father has already moved from Launceston to Melbourne for work.
(g)the cost of spending time with the children, if they were living in Melbourne, would be prohibitive and would reduce the amount of time she would be able to spend with them. The mother would not receive child support if the children were living with their father, and although the mother’s evidence is that she could obtain extra hours at through her position of employment, it would only increase her gross income to $500.00 per week. From this the mother says she has $179.00 in fixed expenses for electricity, rates, petrol and telephone in addition to food and private health costs. The mother’s evidence is that she would have little funds left “in order to be able to afford the costs of either myself flying to Melbourne or paying for the children to fly from Melbourne to Tasmania”.[43] The mother does not have any family in Melbourne with whom she could stay if she were to travel to Melbourne to spend time with the children. The mother is also worried about the effect this would have on her relationship with the children.
(h) she has concerns that the father will not contribute towards the costs of the children travelling to Tasmania to spend time with her if the children were to live in Melbourne.
(i) she has had difficulty in being able to communicate with the children via telephone when the children have been in the father’s care. Her evidence is that the telephone calls have cut out, the children have been distracted during the calls or have been at a restaurant and have been unable to speak with her.
(j)has concerns about whether the father will facilitate her relationship with the children if they were to live with him. The mother raises this concern because she says at Part 45 of the father’s questionnaire he indicated that if the children were to live with him the parties should share half of the school holidays. The mother says this surprises and concerns her that the father will not “actively facilitate the children’s relationship”[44] with her and “does not view their time with her as being important as the time they spend with him”.[45] The mother says “I would have expected him to seek identical orders that if the children should live with him in Melbourne that they have all of the term holidays with me”.[46]
[41] Paragraph 107 (a).
[42] Ibid at paragraph 107 (c).
[43] Ibid at 107(g).
[44] Ibid at paragraph 107(j).
[45] Ibid.
[46] Ibid.
Since the children returned to live in H (after the trial living arrangements in Melbourne with their father) the changeovers have worked but the children could not be said to be managing particularly well and I am concerned that there are signs of regression.
This has to be seen in the terms of the mother knowing the circumstances and perhaps being in many ways unable to deal with them.
Evidence was given by the mother’s parents. They are supportive parents who have identified with their daughter and were concerned for her in terms of the relationship break-up. They have focused more on their daughter than on their grandchildren and the relationship they have with the mother.
The mother’s father during cross examination conceded that he had collected some documents from Ms K’s former husband. I find that the maternal grandfather was simply endeavouring to find information to assist his daughter through the litigation and I make no adverse findings in that regard nor make any criticism of the grandfather.
I accept the submission of the Independent Children’s Lawyer that there is unlikely to be animosity towards the mother in the father’s home. I am not sure that that is really the case in the mother’s home.
Things have improved as the Independent Children’s Lawyer submitted B apologised to her mother in circumstances where the mother had set boundaries.
SUBMISSIONS
The Independent Children’s Lawyers submissions were that provided I come to the conclusion that there was no risk of a reoccurrence of B’s behaviour, the children should live with their mother. That is one of the really fundamental issues that I had to address, that is, whether there is likely to be a regression.
Has the mother turned the “Titanic” around in time? Should I give affect to the family consultants’ recommendations? I do not accept the submission of the Independent Children’s Lawyer that the problems with B were not reckless indifference of the mother. The mother could see what was happening on changeovers and did little about it until the court imposed the trial of living in Melbourne after the evidence of the experts in August 2008. Unfortunately the mother’s parents, in their statements supporting the mother, have supported this poor parenting approach.
Counsel for the mother submitted that I should not accept the father’s evidence. I do not accept those submissions and I find, as I have said earlier, that both the father and Ms K were credible witnesses.
Counsel for the mother said the problem was too much time in Easter 2008. With respect to him, I disagree. The problem was, at that time, the mother’s failure to parent the children and put in place appropriate parenting arrangements to enable the changeover to occur. I have concerns that this will continue into the future. The mother’s inflexibility is a factor but not a determined factor in terms of the parenting arrangements.
Counsel for the father observed there was little issue as to the facts and he is quite right. He says, and I accept, that B was in desperate psychological trouble when this matter came before this court in August 2008 when J was likewise starting to head that way. That is the evidence of the single expert and the family consultant. What has brought the change around is the children residing in Melbourne for a period of time. The time in Melbourne was beneficial for the children and was a significant positive change which has enabled both children’s relationship with their father to be significantly repaired.
I accept the submissions that the changeovers are working but I do not accept that they are working well. The mother’s evidence is that there were no difficulties with the August, September and November 2008 changeovers for the children and that “[B] did not engage in any of the conduct she had previously engaged in at earlier handovers.”[47] The father’s evidence is the changeovers for the children for August, September and November 2008 were without incident and worked well[48].
[47] Paragraphs 10, 13 and 18 of the mother’s affidavit filed 28 November 2008.
[48] Paragraph 7, 8, 9,26,34 and 41 of the father’s affidavit filed 2 December 2008.
However, the changeover at the conclusion of the children’s visit with their mother on the 12 October 2008 did not progress well. The mother's evidence is that she had to change the children’s return flight due to JetStar cancelling the flight the children were booked on. When the mother arrived at the Melbourne airport with the children she says there was some confusion in finding the changeover point as she was unfamiliar with the airport and was stressed about checking back in for her departing flight to Launceston. The mother’s evidence is that B would not get in the car with Ms K and S. “[B] pulled away from the car crying……….I left [B] standing on the footpath screaming, crossed the road and then looked around once to make sure that she was not trying to follow me over the busy road”[49]. The father at paragraph 42 of his affidavit filed the 2 December 2008 says “he was aware from [Ms K] that there were some difficulties at the airport.
[49] Ibid at paragraph 30.
The mother complained of other difficulties with the changeovers such as the father not being present, due to work commitments, on the 14 November 2008 when the children were to be handed over at the paternal grandparent’s residence. The mother viewed this as particularly disappointing as it was the first handover since the children had been returned to her care.[50] The father does not dispute he was unavailable at the handover as he had to work night shift.
[50] Ibid at paragraph 34.
The mother alleges there were other incidents such as the father telling B off for not showing him any affection at changeovers. The mother says she
“found this concerning given the previous difficulties that had been experienced at past handovers, I would have hoped that [the father] would not have made an issue of [B] not giving him a hug and a kiss when she arrived at handover, but rather, would have praised [B] for her good behaviour at handover”.[51]
[51] Ibid at paragraph 18.
The mother’s evidence is that B is still unsettled in the lead up to the changeovers. At paragraph 7 of her affidavit filed the 28 November 2008 she says;
“She [B] would cry most mornings and nights and regularly expressed that she did not want to go and stay with [the father]”.
Another example is the handover on the 14 September 2008 where at paragraph 13 of the mother’s affidavit she says;
“both children made comments before the handover that they did not want to go back, but more so [B] than [J]. On the drive back from [H] to Launceston, [B] cried in the car and she was also quite and subdued”.
I am concerned that we may have another period that whilst the spotlight of the court is on the parties, and the mother in particular, things will work but once these proceedings have come to an end the difficulties will arise again in the mother’s household.
B and J have a close and loving relationship with both parents. There is no issue that in this case there is a benefit to the children having a meaningful relationship with both of their parents.
At paragraph 112 of the single experts report he says:
“[B] probably does not have a good understanding of the importance of a relationship with her father and what it might mean to her in the future. Her current attitude is very much a product of the family dynamics that have influenced her since the parent’s separation and her reaction to that situation. It is very likely ….that [B] would value a relationship with her father at this time in her life”.
Enormous efforts have been put in place over the three months in 2008 to encourage the children, in particular B, to have a positive relationship with their father when the arrangements broke down. This includes a number of endeavours through Children’s Contact Service, the father and Ms K and in recent times the mother which seem to have been successful. However, I am mindful that whilst the evidence is that B’s behaviour has improved and changeovers now occur with minimal fuss, I am not satisfied, this will continue once the proceedings have come to an end.
Sadly this is a case where the children may be at unacceptable risk of psychological harm if they remain with the mother as their primary carer. The evidence earlier this year whilst things are better I am not satisfied, on balance that has completely turned around.
One of the factors I have considered is the age and maturity of the children in relation to their views. The children are strongly aligned with the mother and want to remain in H. At paragraph 27 of the fourth report the family consultant says:
“[J] is aware that his father is seeking that [he] and [B] move to Melbourne to live with him…[J] explained that he liked visiting his father and enjoyed travelling to Melbourne, but stated that he only wanted to spend time with his father for short periods of time. He does not want to leave [H], his school, friends, mother and grandparents. [J] spoke of experiencing homesickness during the long say with his father and he missed his mother “very much”. During his time in Melbourne, [J] would often climb into bed when he was upset and missing his mother”…
She goes onto say at paragraph 43:
both children…….have consistently maintained that they wish to continue living with the mother and maternal grandparents, and they continue to identify their mother as their primary emotional support. As much as the children enjoy spending time with their father, both the children verbalised that they become distressed and miss their mother when they are separated from her for extended periods of time.”
I accept they are deeply held views of the children and are reflected in the expressions which the family consultant noted about the home sickness of the children (particularly B). I have had significant regard to the views of the children and the consequences of the change in parenting. It should not be underestimated in terms of the children.
The children have a close and intimate relationship with the mother and want to be with her. She has been their primary carer since birth and since the parties’ separation. Both children miss their mother and are homesick when they are in their fathers care. I note that when the children are in Melbourne and are under stress that they look to each other for comfort and not the father.
The father has an open and loving relationship with the children. Despite earlier difficulties, B’s relationship with her father has significantly improved between the first and final family report. The family consultant attributes this to success of the trial living arrangements with the father in Melbourne and the parents’ commitments to putting the children’s needs before their own. [52]
[52] Paragraph 40 of the family consultant’s final report of 1 December 2008.
Both children have a close relationship with their maternal grandparents.
The father and Ms K are willing to encourage a close and continuing relationship between the children and their mother.
I accept the mother’s evidence that she is now trying to deal with that and “there have been significant improvements in the mother’s attitudes and views in relation to her role as a co-parent”,[53] but I am not satisfied that she can overtly encourage a relationship with the father and his family.
[53] Paragraph 44 of the family consultant’s report of 1 December 2008.
The father lives in Melbourne with his partner Ms K. The mother lives in H in Tasmania with the children. To spend time with the father the children are currently required to travel over 8 hours every second weekend, which according to the family consultant would be “arduous and impractical” for the children. The father, amended the orders he was seeking, in his summary of argument, to reduce the time the children are to travel during school term if they were to live with him.
The father is in a better financial position than the mother. If the children were live with him the travel costs would only impact upon him slightly. However, the costs would impact on the mother greatly. The mother’s evidence is that not only would the cost of spending time with the children, if they were living with their father in Melbourne be prohibitive, but it would also reduce the amount of time she would be able to spend with them.[54] Even, if she was able to increase her hours the mother’s evidence is the most she could earn would be $500.00 per week, which she say after meeting her weekly expenses would leave her with very little to fly to Melbourne to see the children or for her to fly the children to Tasmania to spend time with her.[55]
[54] Paragraph 107(g) of the affidavit of the mother filed the 28 July 2008.
[55] Ibid.
The mother does not have family in Melbourne with whom she could stay. The father’s parents and siblings reside in Launceston in Tasmania and he would be able to stay with them if the children were to live with their mother.
Both parents provide positive but different lifestyles and both can provide safe homes for the children.
The mother meets most of the children’s physical and emotional needs. However this has not been without difficulties. The mother has had problems managing B’s behaviour, but she has undertaken personal counselling and behavioural management education to manage B’s behaviour and improve her parenting skills.
The father has a different parenting style to the mother. Although, the father’s parenting is more spontaneous and more directive of the children I am satisfied that he is able to adequately meet the children’s needs.
The children do extra curricular activities in both homes.
Both parents love their children deeply and have made many personal changes and sacrifices in order to put the needs of the children before their own.[56]
[56] Ibid at paragraph 40.
In determining what is in the children’s best interests I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the parents. B is 9 and is in year 3 and J is in Year one at H District High School. The single expert observed that the separation of B’s parents had been a major shock for her and resulted in trauma and emotional adjustment for her. As a consequence B engaged in negative behaviours at changeovers, including tantrums to avoid spending time with her father. However, B seems to have matured since the preparation of the first and final family reports. In the final family report the family consultant observed;
“[B] approached her interview in a more philosophical manner on this time. She did not express the same strongly negative and often irrational views towards her father as she had done in past interviews. [B] now seems resigned to the fact that she is not permitted to make decision regarding her parenting arrangements”…..Likewise [B] did not express anger towards her mother for “making her go” to see her father, even when she did not want to, because when she refuses its hard for Mum’……
[B] indicated remorse for the impact her behaviour had upon her mother. This appears to be a large shift in thinking for [B]. It seems that [B’s] past attempts to manipulate her mother through negative behaviour to assert her own will, have now been replaced with more compliant desire to please rather than upset her mother. This is a more normal motivation for primary school child.”
For the reasons set out above I have concerns about the mother’s attitude to the children and the responsibility of parenthood demonstrated by her.
I am not without concern with regard to the father’s attitude to parenting. The question of the father’s criticism of the mother’s household is of concern. At paragraph 42 of her final report the family consultant says:
“Unfortunately, this current assessment raised a number of new issues and concerns … the alleged criticisms of [the mother’s] parenting abilities and the impact this has upon [B] and her relationship with her father and the impact this may have on the co-parenting relationship” … [B] currently believes that her father thinks her mother is a bad mother”.
During the hearing questions were raised as to whether I should make an interim order of a final order. The advantage of an interim order is that if things go wildly wrong then there doesn’t need to be a further application to the court. The downside of that is that it leaves the parties with the emotional and financial cost of the proceedings and the court is still undertaking the role of parenting when it should be the parents who undertake this task. It is for this reason that I have decided to make final orders.
A change in parenting would seem to me, almost lead to further proceedings. The orders I am putting in place are the best I can do in the difficult circumstances of this case in which B and to lesser degree J have been placed in their parents’ conflict.
I intend to put in place orders in relation to B attend therapeutic counselling.
I have considered all the relevant evidence before me. In coming to the conclusions in these proceedings I have considered the matters set out under s60CC(4) and s60CC(4A).
CONCLUSION
For the reasons set out above I find that it is in the best interest of B and J for there to be a change of residence whereby the children will live with their father in Melbourne.
I certify that the preceding two hundred and forty two (242) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Legal Associate :
Date: 6 February 2009
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