James and James
[2007] FMCAfam 1056
•10 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAMES & JAMES | [2007] FMCAfam 1056 |
| FAMILY LAW – Parenting – whether children aged 12 and 9 should spend time and/ or communicate with father – eldest child has not had any contact with father for 9 years – youngest child has never had any contact with father – both children scared of father – both resisting time with father. |
| Family Law Act 1975 |
| H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | JOSIE JAMES |
| Respondent: | MARK JAMES |
| File Number: | SYM 5069 of 2006 |
| Judgment of: | Sexton FM |
| Hearing dates: | 22, 23 January & 19, 20 September 2007 |
| Date of Last Submission: | 20 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Roberts and Mr S Stewart |
| Solicitors for the Applicant: | Gergis Solicitors |
| Counsel for the Respondent: | Ms J Merkel |
| Solicitors for the Respondent: | Equity Lawyers |
| Solicitor for the Independent Children’s Lawyer | Slade Manwaring Solicitors |
THE COURT ORDERS THAT:
The children of the marriage, Wilma James (not her real name), born 1 September 1995 and Jody James (not her real name), born 26 June 1998 live with the mother.
The mother have sole parental responsibility for the children.
The father be permitted to send a letter as well as photographs every third calendar month to each of the children.
The father be permitted to send a card or letter and a David Jones voucher to each of the children on each child’s birthday and at Christmas regardless of when the third monthly cycle falls.
The mother be permitted to read each letter referred to in Orders (3) and (4) in advance of the child reading the letter/card provided that the mother give the letter, card or photograph to the child to whom it is addressed on the day of its arrival for the child to keep, and the mother facilitate each child using the David Jones voucher towards a gift for that child.
The mother write to the father about the children’s progress, including their interests and hobbies, on no less than two occasions each year until Jody attains 14 years, as follows:
(a)The first letter before Christmas, commencing 2007;
(b)The second letter in the second term school holidays 2008;
(c)Subsequently the letters at least twice each year, one before Christmas and one in the second term school holidays; and
(d)The letters be addressed to the father at 25/142 Greenacre Road, Greenacre, or to another residential address advised to the mother in writing by the father, in the event the father changes his residential address.
In the event the children or either of them express a wish to see their father or communicate with their father through whatever means (by letter, telephone or face to face) the mother do all things necessary to ensure those arrangements are put in place as soon as practicable.
The mother provide an authority to the schools attended by each of the children to provide information to the father about the children’s progress in the form of school reports, photographs and other similar information and the father meet any costs involved.
The mother keep the father informed of the name and address of each child’s school.
The father be restrained from contacting any school at which either child attends or from approaching either child and the father do all things necessary to ensure that members of his family do not approach the school or either child.
The Independent Children’s Lawyer forthwith serve a sealed copy of these orders on the Principal of the children’s school and the mother serve a sealed copy of these orders on the Principal of the school in which Wilma is enrolled in 2008, at the commencement of the 2008 school year.
Neither party denigrate the other in the presence or hearing of either child and each party do all things necessary to ensure that no family member denigrates the other party in the presence or hearing of either child.
The mother forthwith arrange for the children to attend upon the Independent Children’s Lawyer and Dr Szyndler for them to explain the purpose of these Orders.
The mother notify the father in the event of any serious illness or injury relating to either child and keep the father informed of the child’s progress should such an illness or injury occur.
The mother and the father keep each other informed as to their respective residential address, residential telephone number and mobile telephone number and advise the other within 7 days of any change of address or telephone number.
The mother keep the children informed at all times as to the address and telephone contact details for the father.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 5069 of 2006
| JOSIE JAMES |
Applicant
And
| MARK JAMES |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for the parties’ two daughters, Wilma, aged 12 and Jody, aged 9 years. The parties separated after a marriage of 2 years when the mother was pregnant with Jody. They divorced 8 years ago. The parties have not communicated since separation. Jody has never met her father. Wilma was two years old when the parties separated and has not seen her father since. The father had not directly communicated with either child by any means in the 9 years prior to the first day of hearing in January 2007.
The father attended the children’s school on 7 November 2005 without notice to the mother or the children, asking to see the children. This event prompted the mother to bring an application in the Burwood Local Court in December 2005 seeking orders that the children live with her, and that she have sole parental responsibility. The father responded, seeking orders that the children spend time with him on alternate weekends and for half the school holidays. The proceedings were transferred to this Court in June 2006.
By the time of final hearing in September 2007, the father had amended his proposed orders and was seeking orders that the parties undergo intensive family counselling to assist in establishing a relationship between the father and the children, that the children spend supervised time with him in a contact centre for two hours every three months and for the arrangements then to be reviewed. The mother opposes the children spending any face to face time with the father. Although the mother does not seek orders in relation to other communication between the children and the father, the mother does not oppose the orders in relation to communication sought by the Independent Children’s Lawyer. The Independent Children’s Lawyer proposes that the father send letters every two months and gifts on the children’s birthdays, and that the mother keep the father informed as to the children’s progress and welfare.
The central issue for determination is whether the court should make orders for the children to spend face to face time with the father.
Each party was born in the Middle East. The father migrated to Australia as a young child, and the mother nearly 20 years ago. During the parties’ marriage, they lived at Lakemba adjacent to the homes of the mother’s mother, the mother’s brother and the mother’s three other siblings and their families. The mother and her extended family remain neighbours. The mother has two other children from her previous marriage living with her, aged 14 and 15. The mother is studying but has not been in the paid workforce since the parties separated.
The father remarried 18 months after the parties’ separation and there are two children of that marriage, Zoron (not his real name) aged 5 and Kaylene (not her real name) aged 3. The father has a son Matthew, (not his real name) aged 15, with whom he spends time, from a previous relationship, and an adult daughter Natasha (not her real name) with whom he has had no contact since she was a baby, living in the United States. I make no finding as to the mother’s claim that the father also has other children. The father’s present wife, Samantha Lee (not her real name) has 4 children, three of whom, aged 17, 14 and 12, live with her and the father. The father of Ms Lee’s children has died. The father is currently unemployed.
The parties live in relatively close proximity to each other in the same Arab speaking community.
Dr Szyndler, a doctor of clinical psychology, prepared two reports for the assistance of the court, the first in November 2006 and the second in September 2007. Dr Szyndler gave oral evidence at hearing in January 2007 and again in September 2007. In her report of November 2006, Dr Szyndler described the children as being strongly aligned with the mother and her extended family She said the children have no wish to meet their father but recommended the children be given an opportunity to do so, initially supervised in a contact centre, and when more confident, on an unsupervised basis. However, on the second day of hearing in January 2007, Dr Szyndler changed her view. She said the children should not be forced to meet the father face to face.
In January 2007, the parties agreed to orders, on an interim basis, providing for the children to live with the mother and for the introduction of monthly communication between the father and the children by way of letters, gifts and photographs. The parties agreed to orders providing for the father to receive information, including photographs about the children’s progress at school and to attend post-separation parental counselling with a family consultant in the Sydney Registry.
At the hearing in September 2007, the Independent Children’s Lawyer told the court, that despite the passage of 9 months, the children remained opposed to meeting their father. Dr Szyndler said the children should not be forced to spend time with their father. She said the children are scared of him and none of the significant adults in their lives will support the establishment of a relationship between them and their father. Dr Szyndler summarised her view in oral evidence:
I think it is incredibly difficult for children of this age to stand against a prevailing opinion…[1]
…I think if they express the view currently that they don’t wish to see him, they are of an age where I think it would be more damaging and inappropriate to force them to have contact against their will…
…One would hope that they may get to an age where they independently would wish to meet him but equally, they may decide that they don’t wish to see him.
[1] Transcript of proceedings dated 19 September 2007, p 7.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both the child’s parents.
The children do not know their father given his absence from their lives for 10 years. Jody has never met the father and Wilma has not seen him since she was a baby. The children have been told throughout their lives that the father abandoned them. Until this year, the children had not heard from the father. The children told Dr Szyndler they were scared of the father and did not want anything to do with him. Mr Stewart, the mother’s counsel, said in these circumstances I should give this factor no weight at all.
The father told Dr Szyndler he has been trying to make contact with the children for a number of years without success, through his family and through the Islamic Council of Lakemba. He said he has always wanted the opportunity to develop a relationship with the children. The father’s wife and sister both deposed to efforts they have made to persuade the mother to permit the children to see the father.
Ms Merkel, the father’s counsel submitted I should give this factor significant weight, because the objects of the Act require the court to ensure, except in rare circumstances, that children can enjoy a meaningful relationship with both parents. Ms Merkel submitted that this can only be achieved if the children spend face to face time with the father. Ms Merkel submitted:
What the father has done is come to Court and seek to invoke the philosophy and the requirements of the Act and to ask the Court to accept and to apply those principles and to ask the mother to respect those principles…[3]
[3] Transcript of proceedings dated 20 September 2007, p16.
The father has been sending letters to the children each month since January 2007, in accordance with Court orders. Most of the letters are in evidence. The mother was critical of the contents and said the children were irritated by the spelling and grammatical errors and by the fact the father’s wife wrote the letters. The mother said the correspondence had caused the children to become “extremely anxious and unsettled.” The mother referred to the letter of July 2007, when the father said he had seen Wilma from afar. The mother said Wilma now believed the father was stalking her. The mother said Jody has had nightmares and reverted to bed wetting, telling the mother she was frightened the father will take her away. The mother said the children were now sleeping in the same bed. The mother said both children have said to her “I just wish Mr James would leave us alone.”
Dr Szyndler confirmed that these letters did not shift the children’s negative views of the father. She believed the father to be naïve and “unduly optimistic” about developing a relationship with the children. Dr Szyndler said that in an ideal world the children could benefit from meeting the father and their half siblings, but the ideal is not always feasible. She said the children have a wide network of family support, a number of significant father figures in their lives, and do not appear to be suffering from having not seen the father to date. She said:
I’m sure they would probably develop quite normally even if they don’t see him at this point…[4]
[4] Transcript of proceedings dated 19 September 2007, p18.
Dr Szyndler believed the children were unable to develop a relationship with the father at this time. She said the children have developed a wholly negative view of the father and a fear of him, in the context of the mother’s family. She said the issue of abandonment was very firmly in their minds. In Dr Szyndler’s opinion, the children’s position was most unlikely to change until they are old enough to form their own opinion independently of the significant adults on whom they depend, all of whom hold a negative view of the father.
I am not satisfied it is realistic to expect the children to develop a meaningful relationship with their father in the foreseeable future. He has played no meaningful role in their lives to date and his intervention now is causing them distress. I accept Dr Szyndler’s view that the children have formed their negative views of the father in the context of their family life with the mother and her extended family. This does not alter the fact that the children will continue to live with the mother and her extended family who will continue to hold a negative view of the father.
I give considerable weight to these findings.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied the children may suffer psychological harm if compelled to spend time with the father face to face. Dr Szyndler confirmed the mother’s assertion that the children were scared of the father, understandably in her opinion, given the negative picture painted of him by the mother and her family. Dr Szyndler said in her first report
Both Wilma and Jody expressed anxieties about meeting their father, primarily because they both said that they do not know him…
…It is likely that both Wilma and Jody will need active encouragement and support to help them overcome some of their anxieties about meeting their father and this support is unlikely to be forthcoming from their mother or her family…[5]
[5] Family report of Dr Janina Szyndler dated 13 November 2006, p14.
Since receiving the letters from the father, the mother said both children were seeing their school counsellor and both were anxious about their safety. Wilma said to her “I won’t leave school til you pick me up.” I am satisfied the children believe the father is a “bad person” having “abandoned” them early in their lives. I accept the mother’s unchallenged evidence that the children found the father’s letters unsettling and that the children are genuinely apprehensive about the prospect of having to see the father and how that would impact on their lives. I give some weight to this finding.
The mother alleged that the father was physically and verbally abusive towards her during their short marriage, at times in front of Wilma. The mother claimed he threw glasses and crockery at her, physically jumped on her toes, shook her and pushed her against the wall causing her bruising and cuts. She claimed the father said such things as “you fucking slut, give me some money. Give me some money you bitch.” The mother deposed to the father removing an earring from Wilma’s ear just prior to separation, tearing her ear while Wilma was “screaming uncontrollably.” The mother’s brother Mr Alex (not his real name), said he lived in the unit opposite the parties and used to hear the father verbally abusing the mother. Both the mother and Mr Alex told Dr Szyndler the father used to smoke marihuana and often came home drunk during the marriage.
On 29 January 2005 there was a complaint by the father’s former partner, Melanie (not her real name) to the police when the father swore at and threatened her.
The father denied these allegations against him. His present wife and step-child both deposed to the father being a loving and supportive husband/father who was neither violent nor abusive. The father alleged the mother had ‘psychological problems’ and used to throw things at him, unprovoked. The father alleged one of the mother’s brothers threatened him after the parties separated. On a weighing of this evidence, I am not persuaded the children would be at physical risk if they spend time now with the father.
THE ADDITIONAL CONSIDERATIONS
The child’s expressed views and the weight those views should be given.
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
The mother said the children want nothing to do with the father. The father believed the children want to see him. He said his brother and sister once told him Wilma was trying to save $50 to find him.
Each child told Dr Szyndler in November 2006 that they were scared of their father. Each said it was a bad thing for the father to have left them early in their lives. The mother said Wilma decided early in 2007 that she could not cope with the demands of being school captain while trying to juggle the potential demands on her from the father and therefore gave up that opportunity. Neither child expressed any wish to see the father and expressed no curiosity about him. In September 2007, both girls told Dr Szyndler and the Independent Children’s Lawyer they did not wish to see their father. They were disparaging about his letters and presents and believed he had nothing to contribute to their lives. They echoed the mother’s views about the father’s poor literacy skills. Dr Szyndler said the letters appear to have further confirmed the children’s negative views of the father. .
As already noted, I accept the children expressed considerable anxiety about the prospect of seeing the father. Neither welcomed his attempts to intervene in their lives. I accept Dr Szyndler’s opinion, that if the children were to meet their father, their anxiety about seeing him may be alleviated, but that this step would be too difficult for them given the attitude of the mother and her family.
Given the children’s ages, I give my findings as to their expressed views significant weight in reaching my decision.
The nature of the relationships between the child and each parent and the child and other persons.
Dr Szyndler reported both children having very strong emotional ties to their mother and her large extended family and I am satisfied this is so. The mother said the children have a close and loving relationship with their siblings Nathan (not his real name) and Rachel (not her real name). They have a particularly close relationship with their maternal grandmother. The mother said her brother, Mr Alex, who lives with his family only 2 minutes away, played a significant role in the children’s lives. Mr Alex deposed to taking on the role of the father to the children, and to treating the children like his own daughters. One of his daughters and Jody play together “as if they were twins”. The children spend every afternoon after school at his home. The mother’s other two brothers, her sister and their families also live very close by and the children spend a lot of time with them.
While the father says the children are close to his sister, the children told Dr Szyndler they do not know the father’s sister, Victoria (not her real name) and it is common ground the children have not spent any time with her in the last 4 years. I am not satisfied the children have a relationship with anyone in the father’s family.
I find that the children have had close, secure and loving relationships with their mother and the extensive maternal family with whom they have almost daily contact. This is a factor to which I give considerable weight.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent;
Each party blamed the other for the fact that the children have no relationship with the father. The mother said the father left the marriage to move in with his present wife. The mother said the father has never tried to see the children and has made no contact with her since they separated. She denied she has thwarted the father’s attempts to see the children. She said the father gave her no financial support until 3 years ago, and since then has paid $10 a month in child support for the two children.
The father gave a different version of events. He said the mother’s family constantly interfered with the parties during their marriage, living virtually on top of them in neighbouring units. He said the mother’s brother dominated. The father said the mother refused to live independently of her family, and he found the situation intolerable. He said his relationship did not start with his present wife until a few months after separation. The father said he was not welcome after separation. He said the mother’s brother threatened him. He said he made efforts to see the children from time to time through his sister, his brother, his wife and the Islamic Association, all to no avail. He said the mother has always known where he is living and at any time, could have made contact with him. In his view, the children have been “prepped” to say they do not want to see him.
The mother openly acknowledged telling the children the father left them and moved in with someone else. She told them the father had another wife and other children. Since these proceedings began, until an order was made in January 2007 to restrain her, the mother said she showed the children the family reports and the court documents “so they knew what was going on.” Since the father has been sending the children letters during 2007, the mother has told the children “I’m ordered by the court to read them.” The mother said she and the children criticised the father’s spelling and grammar in the letters and the fact his wife wrote the letters for him. They keep his letters in a special box in the mother’s room. The mother’s brother told Dr Szyndler the father “is barely literate and indulges in primitive superstitions and rituals.”
The mother opposed the children spending face to face time with the father. She says “I’m protecting my girls”. While the mother said she would facilitate children spending time with or communicating with the father if they would like to, in cross-examination, when asked if she would allow the children to see their father in 12 months if they asked to see him, she said that in one year’s time they would be “too young to decide.” Inconsistently, she said she wanted them “to judge for themselves.” Mr Alex said he would not assist the children to spend time with the father, even if the mother was ordered to facilitate face to face time.
I agree with Dr Szyndler when she said the mother and her family will not encourage or support the girls seeing the father face to face. In her view, if orders were made for the girls to spend time with him, they may well refuse to go.
I give the mother and her family’s opposition to the children having a relationship with the father considerable weight in reaching my decision.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
I agree with Dr Szyndler that there is no evidence to suggest the children’s physical, emotional and psychological needs are not presently being adequately met.
The mother said both children have health issues. Wilma suffers from lactose intolerance and eczema. Jody suffers from celiac’s disease, an intolerance to gluten. Both conditions are costly in terms of limited choice of foods, treatment and medication, but the mother said, and I accept, that she meets those costs on her limited income.
According to their school reports for Semester 1, 2007[6] the children are progressing reasonably well at school. The mother described each child’s special interests and I am satisfied the mother and her family encourage the girls in their hobbies and extra curricular activities. Jody enjoys drama, music, dancing and reading. According to her school report Wilma “is passionate about sport and has represented the school in various inter-schools competitions this year, such as zone cross-country.” When asked about gifts the children might enjoy from the father, the mother says Wilma would like music, and Jody a book. She believed the best present from the father would be a David Jones voucher so the children could choose something for themselves. Both the father and his wife, Ms Lee acknowledged, from reports they have received from their community, that the children have been well brought up.
[6] Exhibit 2.
The mother claimed the father has never played a parental role in the life of either child. She claimed the father gave her no assistance with Wilma’s care when they were living together, and has provided no support since. She said she has received only $10 a month in child support in the last 3 years or so. The mother says the father has made no effort to contribute in any way to the children’s lives.
The father said he was involved in Wilma’s care as a baby, but offered no explanation for his present position, except that he tried to arrange to see the children at different times over the years. He gave no satisfactory explanation for his failure to bring an application to the court. It is noteworthy that the father did not initiate these proceedings, but is a respondent in proceedings initiated by the mother. The father claimed he has paid more child support when he has been employed, but adduced no evidence to support this claim. The father could not explain why he has made no financial contribution to the mother since learning of their special health needs, during the course of these proceedings.
Dr Szyndler said the father’s lack of commitment to his children over many years lent weight to the mother’s view that he was unreliable, and unlikely to provide anything beneficial to the girls. Dr Szyndler said the father has only limited ability to consider the wider psychological needs of the children, showing limited insight into the difficulties faced by the children if they were to develop a relationship with him. I am highly critical of the father attempting to see his children, one of whom he had never met, at their school without the children or the mother having an opportunity to prepare for such a meeting after an absence of 9 years. I agree with Dr Szyndler when she said[7]:
Mr James appears to have a somewhat simplistic view about Wilma and Jody’s ability to form a relationship with him despite their having had no contact with him for nine years and the ongoing animosity between him and his ex-wife and her family.
[7] Family report of Dr Janina Szyndler dated 13 November 2006, p26.
I find the father has shown a poor attitude to his responsibilities as a parent in the past, and demonstrates very limited insight into the emotional needs of the children now. I have regard to this finding.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
I am critical of the mother for imposing her views of the father on the children. I find the mother’s open negativity about the father has made any prospect of a relationship developing between the children and the father, much more difficult. I find the mother has been unable to separate the children’s needs from her own needs on this issue. However, in the context of this case, and the determination I am required to make, I have given minimal weight to this issue.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
I have nothing further to add under this factor.
The practical difficulty and expense of a child spending time with and communicating with a parent
This factor is not relevant.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested.
I have already referred to the mother’s allegations of the father’s violence. She said she did not take police action as a result of her Islamic beliefs. I accept that there have never been apprehended violence orders in place.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable.
In the event there is an order for the children to spend time with the father, I agree with Dr Szyndler that the children will find it difficult to manage, are likely to resist seeing him, and the matter is likely to come back before the court. I take this factor into account.
PARENTAL RESPONSIBILITY
Section 61C(1) provides that each parent has parental responsibility for the child but by virtue of section 61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Both the father’s counsel and the Independent Children’s Lawyer submitted there should be no order for parental responsibility which would mean each parent has parental responsibility for the children.
Section 61DA requires the court to 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. 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.
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.
The father’s counsel submitted, that although the father does not seek any order in relation to parental responsibility, the mother has not discharged the onus on her to displace the presumption, and the presumption therefore applies. Mr Stewart for the mother submitted it would be detrimental to the children’s emotional welfare for them to know the father is taking any role in their welfare. Counsel argued that it is imperative to the children’s best interests that a sole parental responsibility order be made in favour of the mother.
The parties do not communicate and have had no communication since their separation 10 years ago. The mother has been responsible for all decision-making in relation to the children for that time. The father has played no role at all, including almost no role as a financial provider. The mother has strong negative views of the father, as has her brother, on whom she and the children depend. The father has a poor opinion of the mother. In my view, it is unrealistic to expect the parties to be able to confer on decisions relating to the children in these circumstances. I agree with Mr Stewart that given the children’s apprehension about their father, the complete absence of a relationship with him, it would be unsettling for the children to have their father involved in decisions concerning their welfare. I am not satisfied it is in the best interests of the children for the presumption in favour of equal shared parental responsibility to apply.
I accept Dr Szyndler’s recommendation that the mother should have sole parental responsibility, which is an order to give effect to what has been occurring for the past 10 years.
Given my decision on this issue, I am not required to consider whether making orders that the children should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the children.
Conclusion
Wilma and Jody are much loved and happily established in a secure family environment. They are performing satisfactorily at school and are being given the opportunity to develop their individual talents and to pursue their interests. There is no evidence to suggest the children are suffering as a result of the father’s long absence from their lives.
The children do not know their father. They told Dr Szyndler and the Independent Children’s Lawyer over a period of 9 months that they did not want to see him. It is only since early this year that they have started to receive any form of communication from their father. They have reacted badly to that communication. The question is, whether, in these circumstances, it is in the children’s best interests for them to be compelled to spend face to face time with the father while efforts are made to give them counselling assistance to adjust to such a change, or whether the children should be left to decide for themselves. The Independent Children’s Lawyer opposes the children being compelled to spend face to face time with the father.
Theoretically, there may be advantages to the children being given an opportunity to meet with the father, so that in time, they can form their own opinion of him, independent of the mother and the maternal family. I accept Dr Szyndler’s view that ideally, children should have the opportunity to know both parents and enjoy a relationship with both parents. In this case however, the children have reached 12 and 9 without the father, and are progressing well. Their mother and the other adults to whom the children relate, have an extremely poor opinion of the father and the children know that. Dr Szyndler asks how the children can integrate a completely different world view apart from the family in which they live. I accept her view that it would be almost impossible for the children, at this stage of their lives, to form an opinion about the father that is different from that of the mother and her family. In Dr Szyndler’s view, a meeting, even a single one, would compound their current anxiety. I agree with her that if an order were made, there would be difficulties reported very quickly which would sabotage the purpose of the order.
Dr Szyndler believes the children will cope better with communication from the father if they know there is no compulsion to see him. I agree with her that there is more chance of the children spending time with the father in the future, of their own volition, if not forced to do so now. She believes, and I agree, that it is important that the children know the father is there, that he cares, and they can go to him when they are ready.
I have decided the court should not compel Wilma and Jody to have face to face time with their father. Each child will decide for herself, when she is older, whether or not she wishes to meet with the father. I have therefore decided that the communication which has already started between the father and the children should continue. The children will continue to receive some correspondence and gifts from the father and the father will receive information about their welfare from the mother until Jody is aged 14, and from the children’s schools throughout their school lives. I urge the father to comply with these orders to demonstrate that he can be a reliable parent, committed to the children in the long term, whether or not the children respond to him. I recommend the father seek professional assistance from an experienced child therapist in relation to the content of his correspondence with the children. The children will not be compelled to respond to the father, but are free to do so.
I am satisfied the orders set out at the beginning of these Reasons are in the best interests of the children.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn
Date: 10 December 2007
[2] Transcript of proceedings dated 19 September 2007, p 18.
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