Ismail and Alptekin
[2007] FamCA 434
•10 May 2007
FAMILY COURT OF AUSTRALIA
| ISMAIL & ALPTEKIN | [2007] FamCA 434 |
| FAMILY LAW - CHILDREN - Parental responsibility - Child's views |
| Family Law Act 1975 (Cth) |
| APPLICANT: | MS ISMAIL |
| RESPONDENT: | MR ALPTEKIN |
| INDEPENDENT CHILDREN’S LAWYER: | CATHLEEN CORRIDON |
| FILE NUMBER: | DGF | 1192 | of | 2004 |
| DATE DELIVERED: | 10 MAY 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Dessau J |
| HEARING DATE: | 2,3,4,23 & 24 APRIL 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cantwell |
| SOLICITOR FOR THE APPLICANT: | Reale Lawyers |
| SOLICITOR FOR THE RESPONDENT: | In person |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr Eidelson |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Cathleen Corridon |
Orders
That all existing orders in relation to the children a son born in September 1991, an elder daughter born August 1992 and a younger daughter born in January 1996 shall be and are hereby discharged.
That the children shall live with the husband who shall have sole responsibility for the children.
That the wife shall spend time with and communicate with the children as follows:
(a)In relation to the son at such times as may be agreed between the son and the wife;
(b)In relation to the daughters as follows:
(i) For a session of two hours per fortnight at the W Contact Centre, and during counselling at times requested by Centrecare Footscray, for a period of three months or longer if requested by Centrecare Footscray and/or the W Contact Centre;
(ii) Thereafter at the wife’s home on each alternate week-end from Saturday at 9.00am until Sunday at 5.00pm, the husband to deliver the children at the commencement and the wife to return the children to the husband’s home at the end of such periods.
That pursuant to s 65L of the Family Law Act these orders shall be supervised for a period of 12 months by a Family Consultant appointed by the Director of Child Dispute Services at the Melbourne Registry of the Family Court of Australia, and the Family Consultant shall be at liberty to report to the Court upon the request of the Court or any party in the event of any future proceedings.
That for the purposes of the wife spending time with the daughters in accordance with paragraph 3(b) of these orders:
(a)The parents shall do all acts and things as requested by the Family Consultant and/or Centrecare Footscray and the W Contact Centre to forthwith enrol in the program overseen by Centrecare Footscray and the W Contact Centre;
(b)The Family Consultant is requested to forward a copy of my Reasons for Judgment and these orders to the appropriate Intake Officer(s) at Centrecare Footscray and/or the W Contact Centre;
(c)The husband shall ensure that the children are delivered to and collected from all intake, counselling and contact sessions as requested by Centrecare Footscray and/or the W Contact Centre;
(d)For the purposes of spending time with the wife at the W Contact Centre, the daughters shall have separate sessions with her, and the Family Consultant and the parents shall do all acts and things necessary to request that such sessions occur mid-week after school, and in the event that is not possible, that they occur on the same week-end in each fortnightly cycle.
(e)That all costs in relation to the counselling program at Centrecare Footscray and/or the W Contact Centre shall be met equally by the husband and the wife.
That the Family Consultant is requested to explain these orders to the three children.
That the husband shall authorise the children’s schools to provide the wife with copies of school photographs and school reports, at the wife’s expense, if any.
That each parent shall keep the other informed as to any serious medical or health issues that arise when the children are in their care.
That the appointment of the Independent Children’s Lawyer shall be and is hereby discharged.
That all existing proceedings shall be otherwise dismissed and the case removed from the pending cases list.
That 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.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGF 1192 of 2004
| MS ISMAIL |
Applicant
And
| MR ALPTEKIN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties’ 15½-year-old son and 14½ and 11-year-old daughters have lived with their father since 2000. There have been difficulties in their mother’s contact with them since early 2004. The father says that the children refuse to see the mother as a result of how she has acted towards them and in front of them. She says that the children refuse to see her because the father has alienated them from her.
The parties now agree that their son should only see his mother if he agrees.
The mother wants to see the 14½-year-old elder daughter for two hours per fortnight at a contact centre, leading to alternate week-ends in her home after about three months.
The mother seeks a period of three months with the youngest child the younger daughter in her care, with no contact at all with her father or siblings. She seeks alternate week-ends with her after that. In the alternative, she seeks two hours per fortnight with the younger daughter at a contact centre (at a different time from the elder daughter) leading to alternate week-ends in her home. At the start of the case she had sought an order that the younger daughter reside permanently with her but she withdrew that application towards the end of her evidence.
The father says that although he is agreeable to the children seeing their mother, he simply cannot force them to go, their resistance is so strong.
The Independent Children’s Lawyer (the ICL) does not support any change of residence. She proposes a supported contact regime for the girls, with each having their own two hour contact centre visit with their mother each fortnight, combined with a broader counselling program, with a view to alternate week-ends after three months.
BACKGROUND
The husband, Mr Alptekin, was born in Turkey in September 1966. He came to Australia when he was aged 25. He is now aged 40 and runs his own business. In May 2000 he married Ms S, then 17, now 25. They have two daughters, aged 5 and 1½.
The wife is Ms Ismail. She is of Turkish descent but was born in Australia in April 1973. She is 34 and is unemployed.
The parties married in March 1991, separated in December 1995, and were divorced in November 1999. The son was born in September 1991, the elder daughter in August 1992, and younger daughter was born in January 1996, just after the parents had separated.
At separation the mother and the two older children left the family home and initially lived in a refuge. They then moved in with the maternal grandmother, until they arranged independent accommodation. In 1997 the mother obtained a 12 month intervention order against the father. She also obtained an interim order for residence. The father obtained an order for contact. It seems that he had regular contact, although there were apparently several contravention applications brought by him. The details were not explored before me.
In September 2000 the parents agreed that the children would move to live with the father and his new wife. On 19 September 2000 the previous interim orders were discharged and replaced by final consent orders for the children to live with their father, for him to have sole responsibility for their daily care, and for contact with the mother every Saturday from 10.00am until 6.00pm and on special occasions.
On 26 February 2004 the mother obtained an ex-parte order restraining the father from removing the children from Australia. He had been proposing to take the children to Turkey for holidays. I will return to the impact of that ex-parte order. For present purposes I note that the parties’ relationship deteriorated, as did the relationship between the mother and children. Her contact with them effectively stopped.
The mother then started these proceedings on 4 October 2004. There were various interim orders for contact, and attempts at counselling. The last interim orders were made by Brown J on 9 June 2005. They provided for the mother to see the children at the maternal grandmother’s home on their birthdays, the mother’s birthday, and the maternal grandmother’s birthday. Overall the contact regime was unsuccessful.
The mother has not spent time alone with the son since 2003, and not with the girls since early 2004. She has not seen the children since mid-2005 except in counselling, and when she visited the younger daughter at school early in 2006. I will return to that below.
The complex family dynamics are further complicated by the fact that the parents are also first cousins. Their mothers are sisters. In addition, the mother’s sister is married to the father’s brother.
MATERIAL RELIED UPON
The wife relies upon the following documents:
·Her further amended application filed 25 September 2006
·Her affidavits filed 26 February 2004, 4 October 2004, 17 February 2005, 30 March 2005, 26 May 2005, and 12 April 2006
The husband relies upon:
·His affidavit filed 24 October 2006.
The father, who is unrepresented, has never filed a formal response. It was agreed that the case should proceed without it, given the latitude under the Family Law Rules for a pragmatic approach to the proceedings. There was no doubt that he contests the orders sought by the mother, and given that he has been very difficult to engage in proceedings (a matter to which I will return) I decided, without opposition from counsel for the mother or the ICL, to proceed upon his oral response.
The ICL relies upon the following documents:
·The Family Report of Ms L dated 8 March 2007
·The report of Ms B filed 30 May 2005 (Ms B could not attend for cross-examination due to ill-health, so the weight I could attach to her report was greatly reduced)
·The evidence of Mr G from Relationships Australia
·The evidence of Mr C, Principal of B Primary School (the younger daughter’s school).
·The evidence of Ms V, Principal of H Secondary College (the son’s and elder daughter’s school).
The father was assisted throughout the proceedings by a NAATI accredited Turkish interpreter. I had the relevant sections of the Family Law Act made available to him at the start of the case. There was other assistance and appropriate concessions for him along the way, including that I arranged for him to receive copies of the mother’s affidavits that he had not brought to court, the ICL’s counsel cross-examined witnesses before him, and the father was permitted to address last at the end of the case.
RELEVANT LEGAL PRINCIPLES
Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act.
Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met 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.”
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or 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).”
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply in circumstances where a parent has engaged in abuse of a child or family violence, and it can be rebutted if the court is satisfied that equal shared parental responsibility is not in the child’s best interests.
The court is then required to consider whether the child spending equal or substantial and significant time with each parent would be in the child’s best interests (see s 65DAA (1) and (e)). No-one suggests this case is about equal or substantial and significant time. It is about what time if any the girls will spend with their mother.
THE ISSUES
It is clear that the children are resistant to seeing their mother. It is also clear that they have lived with their father for a significant period, and that whatever the cause, they have had very little time with their mother for several years. It seems that otherwise the children’s day to day needs are well met in their father’s household and that they are happy living with him and his wife and their little half-sisters in a close family unit.
There is only one substantial evidentiary issue, and that is as to what is making the children so resistant to seeing their mother. There is then the difficult question as to what should now occur. It is convenient to consider the area of dispute under the umbrella of the considerations in s 60CC of the Family Law Act. I will consider the primary considerations, and then the alternative considerations, bearing in mind the parties’ conduct to date.
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Generally, a meaningful relationship with both parents is an integral part of a child’s healthy development. In this case that proposition requires analysis. I need to consider all the matters below to decide whether it is beneficial or damaging for these girls to be forced to see their mother (and if so, how) now that they are so resistant. That lies at the heart of this case.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
Although the mother says the father was violent and abusive to her during their marriage – and in 1997 she obtained an Intervention Order which applied until 1998 – eight years have elapsed and there is no suggestion of any current family violence issues.
There is though an issue of psychological harm, either from the father’s alienation of the children from their mother, or from her conduct towards them, or both. Again, I need to consider all the matters below.
(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;
The mother agrees with the father that the children express extreme hostility towards her, and resistance to seeing her. However, she believes there is cause for optimism that, if left to their own devices, at least the girls will recommence their relationship with her. She points to the younger daughter’s positive response when she visited her at school in early 2006, and the children’s responses in the course of court-ordered therapeutic counselling conducted by Mr G of Relationships Australia between August 2005 and February 2006. Both are very important in analysing the expressed views of the children and I will explore them in detail below.
For present purposes I note that the mother’s account that the younger daughter was happy to see her and contented to spend time with her at school, was supported by the school Principal. And the mother’s account that although the children were hostile and argumentative with her in the course of the sessions with Mr G, the elder daughter was at least engaging with her by way of argument and the younger daughter seemed just swept along by her older siblings, was supported by Mr G.
The children’s views were strongly expressed to the Family Report writer when she interviewed them in March 2007.
The son spoke very positively about his father. He described him as “great” and that he “was easy to talk to and laugh with”. The Family Consultant noted that the son appeared to be particularly close to his step-mother whom he described as “my real mum”. He corrected the Family Consultant on two occasions saying:
“She is not really a step-mother, she is my real mum…I call her mum…it would be disrespectful not to treat her like my mum…she has looked after all of us for seven years.”
The Family Consultant noted that the son refers to his mother by her first name. He said he had no intention of ever calling her his mother. He said:
“I saw her about two years ago. I saw her about once a month with a therapist…it was no use…there’s no relationship there at all.”
He went on to say:
“It doesn’t matter whatever you say or anyone else says…I’m not going to see her…even if the others go…I won’t.”
The report writer continued:
“18. The writer asked [the son] why he felt this way and he replied ‘she hasn’t treated me properly, she hasn’t been a good mum…never looked after me…it’s too late now…you all just don’t get it…I’ve got a mum…I’ve got a nice family…I want to live with them’. The writer asked [the son] if he had any memories of his mother as a young child and he replied ‘you kidding…she wasn’t there…I don’t know why you’re trying…I don’t want a relationship with her…I don’t want to build any bridges’. [The mother] made these statements in a calm and contained manner. When asked by the writer if there was anything the mother could do to begin to repair the relationship, he stated ‘I want nothing from her…I’ve got a family…dad says if you want to go and live with [my mother] you can…but I will never do that’.”
Ms L then asked the son to talk about the contact that occurred with his mother at McDonalds in 2006. She noted:
“[The son] laughed and stated ‘it was so dumb…we would just laugh at her…even then [my mother] would make disgusting comments about my family…she wouldn’t care’. The writer asked what these comments were and [the son] stated ‘I was eating pancakes and [my mother] said if you keep eating pancakes you’ll turn out fat like your step-mother…she has no respect’. And ‘she would tell me you’re coming to live with me and I would say …no way keep dreaming’. [The son] indicated that in February 2006 ‘[My mother] told me…if you don’t want to live with me just come and see me one time and I’ll leave you alone forever…I said no…leave me alone…the worse part is that she came to the shop and started fights there in front of customers and would try and grab me’.”
The Family Consultant said that the girls appeared very anxious and requested to be interviewed together. They said it was “fun living with dad” and they described their step-mother “like an angel…she is so nice and helps us with everything we need.” [The elder daughter] stated:
“…we are happy with how things are…but [my mother] keeps hanging around…and the court people make us repeat everything all the time… she can’t force us to like her…we’re sick of coming to court all the time.”
When the writer asked them why they felt this way, [the younger daughter] said:
“…when we were really small she left us…she says she left us because she had no money…but she had money…she made up lies about my dad…and that’s not fair for my dad because I love him.”
The Family Consultant continued:
“21. The writer asked the girls what it was like last time they had seen their mother. [The elder daughter] stated ‘we haven’t seen her for a long time, we’re not comfortable with her…I’m sick of all this stuff…we want her to leave us alone’. The writer asked [the elder daughter] why she thought her mother kept trying to see them. [The elder daughter] stated ‘she just can’t leave her kids and then come back…dad’s been a mum and a dad for me…she said I’m going to do what it takes to get you back and we said no way…we don’t want her’. The writer asked the girls if they had any memories of their mother and [the elder daughter] stated ‘she used to trick us…she used to send other family to trick us to make us see her and it was horrible’. The writer asked the girls why they were so angry? [The younger daughter] stated ‘because she left us…we don’t know her anymore…my aunty used to make us write letters to her saying we loved her but we just copied my aunty’s notes…we didn’t know what we were writing’.”
Ms L asked the girls if there was anything their mother could do to begin gaining their trust. She reported that:
“[The elder daughter] stated ‘we just want her to go away, we want this to end, no more psychologists… and to stop her from getting all the family involved in fighting…my dad’s mother and [my mother’s] mother aren’t speaking now and she did this’. [The daughters] stated that they have ‘a lot of good family’ and that they loved their maternal aunty and their maternal cousins and wish to continue to spend regular time with them. They also spoke very warmly of their step-siblings and wanted the writer to ‘tell the judge we already have a nice family’.”
In the evaluation at the end of her report, Ms L said that it did not appear the children were open to re-establishing a relationship with their mother. She noted that they have spent the last seven years strengthening their attachment to their father and step-mother. They identify those two adults as their parents and have come to view their mother as someone who initially abandoned them and subsequently set her mind on undermining their “nice family life”. Ms L noted that they appeared to experience her on-going attempts to re-connect with them as “a disruption to their existing family harmony” and that they were mistrusting of her motives. She went on to consider the possible causes for the children’s reactions. I will return to that.
In her evidence Ms L was clear in her view that there were strong reasons to re-introduce the girls’ contact with their mother, even though that was contrary to their expressed views. I will also return to that.
(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;
(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:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
In this case, the parents’ capacities to care for the children, their attitudes towards them, the nature of their relationships, and their willingness and ability to facilitate the other parent’s relationship are so inter-related that it is convenient to consider them together.
First, there is nothing in the evidence to suggest that the children are other than well cared for by their father and his wife. The son is described by the Family Report writer as “confident and articulate”. The girls too appear to be bright and articulate. The family therapist Mr G described the elder daughter as “a very articulate and impressive young person.” The school Principal of the two older children raised no concerns about them at school. This case is not about how the children are cared for physically or on a day to day basis. It is about their emotional development and well-being.
The mother blames the father for the children’s alienation from her. The father blames the mother for having abandoned them, and for a lifestyle and some particular acts that have caused them to be alienated. Both are correct.
It is impossible not to be sympathetic to the mother’s difficult predicament when she was caring for the children in the first five years after separation. She was receiving inadequate financial assistance from the father. She was young and alone with three little children. Her mother (the father’s aunt) and her sister (the father’s sister-in-law) were unsympathetic to her plight. She had broken with custom by leaving the marriage, and was unable to fall back on the family support that she needed. Her isolation was compounded by the complexity of the inter-locking family relationships. That said, she showed little insight or capacity to concede that the children could have genuinely experienced her handing them over to their father as a form of “abandonment” by her.
The mother said she decided to hand the children to their father because he assured her that he could care better for them financially than she could. She described him as happy about his relationship with his new wife, and being nice to her at the time, so she accepted what he said to her.
The mother’s explanation does not ring true. She had said that until then the father had only seen the children intermittently and they had been unhappy spending time with him. Nevertheless, she handed them to him, effectively to be cared for by his new 17-year-old wife who had only just arrived from Turkey, had no experience with children, and whom she had not even met.
I am satisfied there was another factor at play in the mother’s decision to leave the children in their father’s care. She had a new partner, Mr A. Within months of handing over the children, she left Melbourne with Mr A, to undertake seasonal work for ten months in Northern Victoria, where he had family. In my view she underplayed the significance of that relationship, and of her desire to leave Melbourne with him, as the motivation or part of the motivation for her decision to leave the children with the father.
The parents obtained a consent order for the change of living arrangements on 19 September 2000. They had agreed that the mother would see the children all day each Saturday. From the start she did not exercise those full contact rights. She saw the children about every second Saturday. Early in her evidence she said that she had moved to Northern Victoria as soon as the orders were made. Later she said it was about ten months after the orders. In any event, once she was in Northern Victoria, weekly contact was certainly not practical and she generally saw the children only on one day per fortnight. She said she saw them with some flexibility, so it appears that the husband was co-operative in maintaining and promoting the children’s relationship with her. In any event, I am satisfied that the mother did not exercise all the contact provided under the orders. The children were very young (the younger daughter was only about 4) and they must have experienced a sad and confusing interruption in their relationship with the person who until then had been their primary care-giver.
The children have complained that they saw their mother in bed with different men. I cannot make a definitive finding about that, but her evidence about her relationship with Mr A seemed evasive, and it may be that the children did experience her relationship with him and/or others in a way that troubled them. That may or may not be through the lens of what they have subsequently been told by their father. They are raised in a traditional Muslim home and they are likely to be very critical of anything perceived as promiscuity.
The children’s relationship with their mother was adversely affected when, in February 2004, she brought ex-parte proceedings for an injunction to restrain the father from taking the children to Turkey on a holiday with his wife. Their step-mother went without them. The children were terribly upset. They had been excited in anticipation of this family holiday. They and their father were bitterly disappointed that the mother had represented to the court that they might not return to Australia. Although the mother says that she had problems in seeing the children before then, the evidence does not sustain a finding that the husband stood in her way, rather that she was erratic in exercising her contact. I am satisfied that things changed after the ex-parte order in February 2004. The husband and the children were embittered and contact then did not proceed. Still, it was not until October 2004 that she commenced proceedings for contact.
The mother has shown insufficient insight into the impact on the children of her handing them over to their father, her relationship with Mr A, her moving away thus reducing her contact with them, her ex-parte application which stopped their family holiday in Turkey, and her slowness to act when contact stopped.
For his part, the father has shown insufficient understanding of the importance for the children in seeing their mother. He repeats over and over that he wants contact to occur. He repeats over and over that he respects the court and will do whatever the court says. But his actions do not go with his words. I am satisfied that his actions are such that the children, whom I accept have had their own genuine reasons for cynicism about their mother’s commitment to them, have had that cynicism fuelled by their father. The evidence in this regard was extensive.
First, I observe that the father has been unco-operative in the course of these proceedings. I understand the pressures for him as a small business owner and the sole bread-winner for himself, his wife, and the five children. He works very hard. His wife does not speak English and does not drive. He bears the brunt of many family responsibilities. I am sympathetic that simultaneously with these proceedings, he has been involved in a stressful Federal Court case about his business. It is only fair to take into account the stressors on him in trying to meet his various responsibilities. That said, despite his words, he has not shown sincerity in the way he has approached this case.
The father has failed to appear a number of times (for example on 17 February 2005 and 10 March 2005) and he failed to attend confidential counselling in May 2005. He has failed to comply with orders to file court documents (so that his only document in these proceedings is an interim parenting affidavit filed on 24 October 2006). He has been ordered to pay costs but has not (for example on 17 February 2005), or the wife’s and ICL’s costs have been reserved (for example on 10 March 2005 and 18 August 2006). He has failed to produce the children for the purposes of the preparation of the Family Report. His excuses in that regard were not good enough and ultimately the ICL had to bring a specific application for him to attend for the report to be prepared.
These failures on the father’s part have frustrated the proceedings, caused expense, and most problematically caused delay that has adversely affected the children’s opportunity to re-build their relationship with their mother in a timely way.
The father has also failed to comply with various interim orders. Despite being ordered on 9 June 2005 to serve a copy of orders on the children’s schools and to authorise the schools to forward school reports and photographs to the mother, he failed to do that. Any interim orders for contact provided for meagre time with the mother. One could expect the contact to have been manageable for the children with appropriate encouragement. But it has either not proceeded, or has proceeded with problems.
The orders of Carter J in early 2005 provided for brief sessions with the mother at McDonald’s. I accept from the evidence that the children were not properly prepared by the father for that contact. He stayed nearby in the restaurant, generally with a friend or relative. The children never settled. It was a debacle each time. His excuse that he stayed so that his children (two of whom were teenagers) would not be distressed and run out on the road and be hit by a car, was lame. He arrived late with the children at various sessions and far from a relationship being able to build, the contact only further undermined the mother’s relationship with the children. Similarly, the contact ordered by Brown J to take place on special occasions at the maternal grand-mother’s home was problematic and stopped soon after it started.
According to the mother the children have spoken appallingly to her in the course of the unsuccessful contact. They have called her a “slut” and told her to “fuck off”. The mother says that has been within the husband’s earshot and that he has either not corrected them, or at times he has encouraged them with a hug or a smile. I cannot make a definitive finding about it but as he clearly has no respect for her himself, I am left with the impression that the children would not be properly corrected by him if speaking rudely about their mother. I note for example when he was asked about whether he received child support from the mother, his reply was that he did not want “dirty money”. It was unresponsive and suggested the sort of view of the mother that is likely to be portrayed in his home.
I note that the children refer to their step-mother as their “real mum” and “like an angel”. That view was reflected in the father’s description of her as “a mother not a step-mother” and as “the best mother”. Although he and/or the children do have reason to be angry or disappointed with aspects of the mother’s conduct, and every reason to respect and love the step-mother for the good care she provides, it seems that in their father’s household there has been a negating of the existence of Ms Ismail as their mother. There does not appear to have been room to appreciate any aspect of her role in their lives.
Although the father says that the children are so opposed to seeing their mother that he is simply powerless to force them to do so, I heard that in February 2006 the mother visited the younger daughter at her school. Mr C, the school Principal, facilitated the visit. His evidence was that the younger daughter seemed happy to see her mother. She hugged her and wanted her to remain at playtime and then to attend an art class with her.
That visit is important for a number of reasons. First, the evidence of the independent Principal is in sharp distinction to the father’s description of his younger daughter’s attitude to the visit. The father says the younger daughter was terribly distressed, that she had nightmares and was screaming and crying at being “forced by the Principal to see her mother.” I accept the Principal’s evidence that the child was in fact calm and apparently comfortable.
The visit is also important because it was the son who went to the school to tell the Principal that the mother was not to be permitted to visit again. It is troubling that he was either sent by his father or took it upon himself to do his father’s bidding. And it is troubling that the younger daughter then told the Principal that she was unhappy with the visit when he had observed her contented demeanour at the time.
At a time proximate to what I accept had been a happy time shared with her mother at school, the younger daughter, in the presence of her siblings in sessions with Mr G, expressed extreme hostility to her mother. Most troublingly, when interviewed by the Family Report writer in March 2007, the younger daughter denied that the school meeting with her mother had even occurred. Ms L was extremely concerned that the younger daughter felt such pressures and constraints that she could not concede that she had seen her mother, let alone that she had enjoyed it.
Both Mr G and Ms L raised the possibility of the father having influenced the children against their mother.
In the Family Report, Ms L wrote that:
“…[the children] each identify these two adults [the father and his wife] as their parents and have come to view [the mother] as someone who initially abandoned them and subsequently set her mind on undermining their ‘nice family life’. They appear to experience her on-going attempts to reconnect with them as a disruption to their existing family harmony and are mistrusting of her motives.
25. The reasons for this are likely to be a combination of [the mother’s] absence from their lives during their very young and vulnerable years, potential influence from [the father], on-going parental and extended family conflict and inconsistent and infrequent interaction with their mother. From all accounts, there appear to have been long periods where the children had no contact with [the mother] and they had coped with this by seeking to fulfil their primary need for security and stability with their father and step-mother.”
In her evidence, Ms L continued that the children’s resistance to seeing their mother was most likely due to a combination of factors, but she did talk of the strong possibility of the father’s influence, particularly in the light of the younger daughter’s fear to acknowledge her mother’s happy school visit.
Mr G said that he “felt the father’s presence in the room” when speaking with the children. In his brief of evidence (there was no affidavit), Mr G said of the children’s hostility to their mother:
“I gained the impression that this view was due to their Father’s influence. This impression resulted from my experience of the Father, which whilst not extensive, led me to believe that at the very least he would not attempt to dissuade them from this view. He had made it clear to me that he couldn’t see the point in the process we were undertaking and thought it was wrong, and his co-operation with it was reluctant. The two older children articulated his view in particular, and I gained the impression that he encouraged it in them.”
Mr G’s impression of the father must be viewed in the following light. Despite a clear court order to involve the father as well as the mother and the children in the counselling process, Mr G overlooked that and by mistake he did not include the father. He agrees that he spoke with him only very briefly either to arrange the children’s attendance, or when the father attended to drop them off or collect them.
The father left work and drove the children to and from the counselling sessions on eight to ten occasions, and he met half the fees. It is not surprising that he was irritated by the process in which he had such a subordinate role and it is not surprising that his frustration and irritation was evident to Mr G. It is unfortunate that Mr G did not read the court order more carefully. The exclusion could only have served to alienate the father from the process, from these proceedings, and from helping the children to re-build the relationship with their mother.
In the course of cross-examining Mr G, the father referred to tapes of counselling sessions. He was re-called to give evidence about it. He said that the son had recorded parts of one or two sessions on his mobile telephone. The father said that he had not asked the son to do it and that the son had just been “playing around” and it was some months later that he even discovered the recording. It is a worrying prospect that the father might have asked the son to record the session and that the girls might have been made aware that they must “maintain the rage” towards their mother as their father would hear the recording. However, the evidence falls short of a finding to that effect. The son is a teenage boy enamoured with technology. He may have been “playing around” as his father said. He may have been mischievous. He may have decided to report back to his father, but it may not have been pre-arranged. All are reasonable inferences. I cannot make a definitive finding about the recording.
I am persuaded that the children, wittingly or unwittingly, are subjected to influence against their mother in their father’s home. They are devoted to their father, respectful of him, and his word holds sway in their household. They have been raised as dutiful children. That is not said by way of criticism, but by way of observation that if the father genuinely believed that the children should see their mother I am satisfied that they would. For example, the son has said he wants to leave school at the end of this year to join his father in business. He is only 15. The father is keen for him to pursue his education and he says that he is “99% sure” that he can make the son remain at school. That is at odds with the powerlessness the father expresses in getting the children to see their mother.
The father says it will be harmful to the girls to push them to see their mother against their wishes. The expert opinion is to the contrary. Both Mr G and Ms L, acknowledging how strongly the children express their hostility about their mother, acknowledging that the children have some genuine reasons for resentment towards her, and acknowledging the failure of various attempts to re-establish the relationship, are adamant that the girls’ well-being requires the opportunity for a proper re-commencement of the relationship now that this case has finally been heard to conclusion. They both emphasised the risks to the girls’ health and emotional development if it does not occur, and that those risks are significantly higher than the risks of upsetting them by forging ahead.
Mr G expressed the strong opinion that the younger daughter is still only a child who needs this relationship with her mother, and he felt that the younger daughter was swept along by her older siblings in the hostility she expressed. His views were fully supported by the evidence of the child’s response to her mother at school, and by the evidence of Ms L in that regard.
The elder daughter is 14½. Mr G described her as “a force to be reckoned with”. He admired her forthright, articulate manner. He observed her arguing with her mother but noted that she was engaging with her, arguing out issues about which she felt strongly. He sensed “an ambivalence” in the elder daughter so that in his professional opinion there remains an opportunity for this daughter to establish a relationship with her mother, and nothing to be lost by trying. Ms L was also fully supportive of this occurring despite the elder daughter’s age and expressed view.
(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;
I need to look at the likely effect of changes for the girls if they see their mother, and the likely effect for the younger daughter if she actually lives with her mother and is isolated from the rest of her family for three months as proposed by her mother.
As noted by the Family Report writer, these children are completely immersed in a household comprising not only each-other and their father, but also their step-mother and half-siblings. Their father and step-mother have raised them for seven years. The children are very close and attached to them and I accept they have a close and loving relationship with their little sisters. They have been raised as a unit. I have already noted that they are subject to their father’s influence. I have noted the likely negative impact of that influence when it comes to his attitude to their mother. The positive impact is that otherwise they do have a stable and secure home-life and upbringing.
I need to assess the impact on the younger daughter if she were suddenly removed from that setting. Although it would enable her to have the time and the freedom to re-develop the important relationship with her mother, it is likely to cause enormous conflict for her, and unbearable pressures when it comes to her family unit’s expectations and beliefs. It is likely to cause some friction if not a break-down in whole or in part in her very close relationship with her siblings.
The Family Report writer dismissed this proposal out of hand. Mr G gave it tepid but unconvincing support. In my view it fails to take into account all the downstream consequences for a child who, whilst she presently lives in an imperfect world because she has no relationship with her mother, does at least live in a settled and happy family unit. I agree with Ms L that to risk an on-going disruption to that is simply not sensible.
There will be inevitable pressures for both girls if they see their mother. The effects must be weighed against the effects for them in not seeing her. Both Mr G and Ms L referred to the risks for their healthy development in not having that relationship. Ms L was clear that they needed it for their long-term psychological well-being.
(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;
The current impediments to the children spending time with their mother have not arisen because of practical difficulties or significant expense, nor is it expected to be an issue with any future arrangements.
(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;
Both parents are of Turkish origin, and are Muslim, although the evidence is that the father is more traditional and observant than the mother. The children are thus being raised in that traditional and observant setting.
The elder daughter is a teenager. The younger daughter is approaching that stage. They are fortunate to have a female role-model at home. At their ages and stages of development, their natural mother is also important.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant in this case.
(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;
As already noted, there is no evidence to suggest any current or on-going concern in that regard.
(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;
The question arose, if I order a re-introduction of the girls to their mother, as to whether I should make interim orders to be reviewed after three months. Ultimately nobody asked me to adjourn the case part-heard. That was sensible. It accorded with the evidence of the Family Report writer. It is important for these children that there is some finality and certainty and I propose structuring the orders in that way.
CONCLUSION
The mother’s proposal for the younger daughter to live with her for three months without any contact at all with her father, her step-mother, or siblings is an understandable attempt by the mother to try to remove the younger daughter from any influences that could undermine the re-establishment of their relationship. However, the proposal is not in the younger daughter’s best interests. As I have noted, Mr G gave it only tepid support and Ms L was strongly and clearly opposed to it. I agree with Ms L’s expert opinion that it would be likely to place the younger daughter in an untenable situation, most particularly at the end of the three month period. The attempt to re-integrate into her family, and to deal with her father, her siblings, and her extended family is likely to place unbearable pressures on her. Overall, it would not provide a truly child-focussed solution to these difficult problems.
In her report Ms L summed up very well the dilemma at the heart of this case. She concluded (at para 25):
“…From all accounts, there appear to have been long periods where the children had no contact with [the mother] and they have coped with this by seeking to fulfil their primary need for security and stability with their father and step-mother. To undermine this established security would not be in the children’s best interests, however the children also need an opportunity to re-define their relationship with their mother as they enter young adulthood.”
The father talks of potential psychological damage in continuing to force the children to see their mother when they have already endured various attempts, including through counselling. He talks of them being “fed up” and that they want to move ahead with their lives without having to continue to pursue a relationship with their mother.
The expert evidence was very clear that despite what the girls are saying, and despite failed attempts at contact during the interim stages of this case, the girls must have the opportunity, now this case is finally over, for a proper and orderly re-introduction to their mother, and each expert has said there are reasons to be optimistic that it will succeed.
The experts agree that the girls should initially be separated when spending time with their mother. Mr G noted the “group ethos” when he saw the children and with hindsight he regretted that he had not seen the children separately when with their mother. Ms L, who interviewed the girls together at their request, also concluded that each girl needs to see her mother individually, at least to start. I accept that.
I also accept the ICL’s proposal, based on Ms L’s evidence, that the girls should initially spend time with their mother at a contact centre, described by her as “neutral territory”. I am grateful for the enquiries made by Ms L that led to her proposing an available program, whereby the initial time that the girls spend with their mother at the contact centre will be supported by counselling. The program is offered by Centrecare Footscray using the W Contact Centre. Ms L was informed that the waiting list is not long, so it is expected that the family can soon start in the program. I accept the ICL’s proposal (supported by the mother) for a s 65L supervision order so that Ms L can help the family commence the program, and can then oversee the transition into alternate week-ends at the mother’s home.
For a period of about three months, the girls shall see their mother in individual sessions of two hours per fortnight. As to whether that lasts for three months or longer is ultimately up to those who run the program and the parents must be bound by their advice.
The father would prefer that these periods occur during the week after school. The mother is not in paid employment so that is feasible from her point of view. Ultimately the girls will need to attend at the times available at the centre, but the supervising Family Consultant should request the centre to make these sessions during the week if that is possible. If the sessions must take place at the week-end, it is preferable that they occur on the same week-end, if that can be accommodated. That would leave the alternate week-end free. I emphasise though that the most important thing is for the children to be seeing their mother and if the contact centre cannot accommodate them except on week-ends and/or on separate week-ends then so be it.
When the girls’ time with their mother changes to alternate week-ends, it should be from Saturday 9.00am until Sunday at 5.00pm, as proposed by the ICL. On balance, it has more chance of success if the girls are not pushed too far by having a longer time away from their father, step-mother and siblings.
In his closing submissions, the father told me, as he had throughout the hearing, that he would be bound by the court’s decision and he will comply. I have already noted that his actions have not been the same as his words in the past and I retain that concern. Now that this case has been heard in its entirety, for the first time, - and in fairness to him he has attended with proper co-operation (in distinction to his conduct earlier in the life of this case) – I hope that he has gained some important insights.
There is no question that the father adores his children and that they adore him. It is full credit to him that when his ex-wife, who had been the children’s primary carer for the five years since separation, handed the children to him, he stepped in and he has fully supported the children and worked hard to look after them. His reward is their devotion to him. I accept too that his current wife has done an excellent job in caring for the children and the children are obviously extremely fond of her and appreciative of all that she does for them.
In the course of these proceedings the mother has made residence applications. They must have been stressful for the father and his wife and most likely polarised him and the children further from the mother. It is important to emphasise that ultimately the case before me has not been about a change of residence for the children. The children will continue to live with their father. They will simply have the benefit of a healthy relationship with their mother. I hope that the father truly understands that he is not “losing the children” if that occurs. He is helping to ensure that the children he loves so dearly will grow up as strong and as healthy as possible. It is important even though their mother has failings. Both parents do. The children can learn to understand that.
I am satisfied that ultimately these children will respond dutifully and respectfully to their father’s wishes. They have a close relationship with him, and are part of a close and traditional family unit. The evidence was that the father can make the children go to school or to the dentist and therefore he should be able to ensure that they see their mother. I agree with him that there are some differences, but still I am satisfied that he has significant influence that he can use to encourage them to see their mother.
It is important that the children have a clear understanding of the outcome of these proceedings. There was a general consensus that Ms L should describe the orders to the children. Without constraining her in her explanation to them, I request that she conveys that the court has heard all the evidence, including their expressed views, and has concluded (amongst other things) that:
·For many years the children were raised by their mother who loved and cared for them as well as she could in difficult circumstances with little financial or family support
·Some of their mother’s actions in the past must have caused upset to them, for example when she took steps that interrupted their proposed holiday in Turkey
·Overall, their father and step-mother are doing an excellent job in caring for and raising them
·Their mother loves them and it is very important for them to have an opportunity for a relationship with her. Their father agrees with the importance of that.
·They will have support in re-establishing that relationship
·Their mother did not pursue an application that they live full-time with her.
The ICL proposes an order for shared parental responsibility. I appreciate Counsel’s submission that it is extremely important for the unequivocal message to be given to all family members that the children have a mother, as well as a father and step-mother, and that the mother’s involvement in decision-making would underpin that message. However, the s 61DA presumption in favour of equal shared parental responsibility can be rebutted if I am satisfied that it is contrary to the children’s best interests. In this case I am so satisfied.
For nearly seven years the children have lived with their father who has made all the decisions. There has been little or no communication between the parents. It would be wonderful if that could change in the future. It would be to the children’s benefit. But the reality for them is that unless or until that occurs, discussions or parental consensus about the children, their religion, their schooling, their health and activities will inevitably be surrounded by conflict. That in itself is contrary to their best interests, but the more so when the mother is trying to build bridges with them. The children are likely to be hostile to “interference” by their mother. The priority is to re-build the trust and the relationship, and I am satisfied that to introduce the potential for argument around decisions would undermine that.
The ICL sought an order restraining the parents from discussing these proceedings with the children. In the complex circumstances of this case that does not strike me as realistic. I emphasise to both parents though that their children need to be free to re-establish their relationship with their mother on the one hand, and to retain their loyalty to their father and step-mother on the other hand. They are bound to discuss the case with their father, given their ages. I hope he will now understand the importance of giving them freedom to have this relationship with their mother. They are bound to continue to have plenty to say to their mother, particularly the elder daughter. Those discussions can be guided in counselling.
Otherwise the ICL sought half her costs against the husband. I do not propose making that order. The father is working long and hard to support the children without financial assistance from their mother. He also supports his wife and their two other children. The mother is unemployed and has no real estate against which Victoria Legal Aid has a charge. I will not make any additional costs orders against the husband either in favour of VLA overall, or in favour of the wife or VLA arising from costs previously reserved. However, of course, outstanding costs orders must be met.
THE ORDERS
The orders that I propose are as follows:
1.That all existing orders in relation to the children a son born in September 1991, an elder daughter, born in August 1992 and younger daughter born in January 1996 shall be and are hereby discharged.
2.That the children shall live with the husband who shall have sole responsibility for the children.
3.That the wife shall spend time with and communicate with the children as follows:
(a) In relation to the son at such times as may be agreed between the son and the wife;
(b) In relation to the younger daughters as follows:
(i)For a session of two hours per fortnight at the W Contact Centre, and during counselling at times requested by Centrecare Footscray, for a period of three months or longer if requested by Centrecare Footscray and/or the W Contact Centre;
(ii)Thereafter at the wife’s home on each alternate week-end from Saturday at 9.00am until Sunday at 5.00pm, the husband to deliver the children at the commencement and the wife to return the children to the husband’s home at the end of such periods.
4.That pursuant to s 65L of the Family Law Act these orders shall be supervised for a period of 12 months by a Family Consultant appointed by the Director of Child Dispute Services at the Melbourne Registry of the Family Court of Australia, and the Family Consultant shall be at liberty to report to the Court upon the request of the Court or any party in the event of any future proceedings.
5.That for the purposes of the wife spending time with the daughters in accordance with paragraph 3(b) of these orders:
(c) The parents shall do all acts and things as requested by the Family Consultant and/or Centrecare Footscray and the W Contact Centre to forthwith enrol in the program overseen by Centrecare Footscray and the W Contact Centre;
(d) The Family Consultant is requested to forward a copy of my Reasons for Judgment and these orders to the appropriate Intake Officer(s) at Centrecare Footscray and/or the W Contact Centre;
(e) The husband shall ensure that the children are delivered to and collected from all intake, counselling and contact sessions as requested by Centrecare Footscray and/or the W Contact Centre;
(f) For the purposes of spending time with the wife at the W Contact Centre, the daughters shall have separate sessions with her, and the Family Consultant and the parents shall do all acts and things necessary to request that such sessions occur mid-week after school, and in the event that is not possible, that they occur on the same week-end in each fortnightly cycle.
(g) That all costs in relation to the counselling program at Centrecare Footscray and/or the W Contact Centre shall be met equally by the husband and the wife.
6.That the Family Consultant is requested to explain these orders to the three children.
7.That the husband shall authorise the children’s schools to provide the wife with copies of school photographs and school reports, at the wife’s expense, if any.
8.That each parent shall keep the other informed as to any serious medical or health issues that arise when the children are in their care.
9.That the appointment of the Independent Children’s Lawyer shall be and is hereby discharged.
10.That all existing proceedings shall be otherwise dismissed and the case removed from the pending cases list.
11.That 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.
12.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau
Associate:
Date: 10 May 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ISMAIL & ALPTEKIN
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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