Jeffries and Marton

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFRIES & MARTON

[2014] FCCA 1730

Catchwords:
FAMILY LAW – Parenting orders – parental responsibility – where a seven year old child refuses to spend any time with the father – where there are personality traits in both parties that mitigate against collaborative parenting – whether the child should be ordered to attend counselling to re-establish a relationship with the father.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65Y

Tait & Dinsmore [2007] FamCA 1383
Mazorski v Albright (2008) 37 FLR 518
Godfrey & Sanders [2007] Fam CA 102

Applicant:

MS JEFFRIES

Respondent:

MR MARTON

File Number:

MLC 8007 of 2008

Judgment of:

Judge Small

Hearing dates:

24-26 March and 7 April 2014

Date of Last Submission:

7 April 2014

Delivered at:

Melbourne

Delivered on:

4 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr M. Grant

Solicitors for the Applicant:

Power & Bennett

Counsel for the Respondent:

Mr M. Duckett

Solicitors for the Respondent:

Nicholes Family Lawyers

ORDERS

All previous parenting orders in relation to the child [X] Jeffries-Marton born [in] 2006 (“the child”) are hereby discharged.
The mother shall have sole parental responsibility for the child, including but not limited to the authority to obtain an Australian passport for the child notwithstanding that the father has not provided his consent.
The child shall live with the mother.
The child shall spend time and communicate with the father from time to time in accordance with her wishes and only at her instigation.
If the child expresses a wish to see the father in person, the mother shall inform the father of that wish and forthwith make an appointment for her to see Mr O or other such child psychologist or psychiatrist as the mother chooses (“the counsellor”) at the expense of the father with the view to exploring the possibility of the child being reintroduced to the father, and the mother shall provide the counsellor with a copy of these reasons.
For the purposes of paragraph 5 hereof, apart from the initial contact to inform the father of the child’s wish, the mother and father shall communicate through the counsellor and shall follow all directions of the counsellor.
The mother shall be at liberty to use the name “[X] Jeffries” for the child in general, and specifically when enrolling her in any school or any extra-curricular activity and when seeking any form of medical or related treatment for her.
The mother is hereby restrained by injunction from registering the child’s name on her birth certificate or passport as other than “[X] Jeffries-Marton”.
The mother shall within 28 days of the date of these orders inform the child, or cause her to be informed by a close family member or a person qualified in child psychology, that she has a half-sister named [Y] who is the baby daughter of the father and his wife.
The father shall be at liberty to send the child cards, letters, photographs, DVDs or any other form of hard copy communication on no more than six occasions per year, those six occasions to include communications for the child’s birthday and for Christmas, and the mother shall ensure that:
(a)The father has a current postal address for the child at all times;
(b)The child is informed of and has access to those communications; and
(c)Such communications are kept for the child until she turns 18, when they shall be given to her.
The father is hereby restrained by injunction from:
(a)Attempting to contact the child other than in accordance with paragraphs 4, 5 and 10 hereof;
(b)Attending at any school or other institution attended by the child save in accordance with paragraph 4 hereof and at the written request of the child; and
(c)Contacting the mother directly save in accordance with paragraphs 4 and 12 hereof and save to inform her of any health or other emergency in relation to a member of the child’s paternal family or, in the event that he spends time with the child pursuant to paragraph 4 hereof, to inform her of any illness or injury suffered by the child while she is in his care, such communication to be by text message.
The parties shall keep each other informed as to their postal addresses and telephone contact numbers and shall advise of any change in such address or telephone contact number within seven days of that change.
The mother shall ensure that the child sends to the father a letter/card for his birthday, Christmas and Father’s Day, and a recent photograph of the child which is not a school photograph shall accompany the Father’s Day correspondence.
The mother shall inform the father as soon as practicable in the event that the child suffers any serious illness or injury and shall keep him informed of her progress.
The mother shall keep the father informed of the contact details of any school in which the child is enrolled and shall authorise the child’s school to provide directly to the father, at his expense, any school reports, photographs and other information usually provided to parents.
All prior Orders restraining the removal of the child [X] Jeffries-Marton born [in] 2006 (“the child”) from the Commonwealth of Australia be discharged.
All extant Applications are otherwise dismissed.

AND IT IS REQUESTED THAT:

The Australian Federal Police remove the name of the child from the Watch List at all points of international arrivals and departures in Australia.

THE COURT DECLARES THAT:

Pursuant to ss.7 and 11 of the AustralianPassports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the respondent father to enable the child of the relationship [X] Jeffries-Marton born [in] 2006 to obtain an Australian Passport to travel internationally.

IT IS ORDERED BY THE COURT:

THAT the mother of the child [X] Jeffries-Marton born [in] 2006 be permitted to apply for an Australian Passport to enable the child to travel internationally notwithstanding that the father of the child has not signed the passport application form and furthermore the said child be permitted to travel internationally without the permission of the respondent father.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.

IT IS NOTED that publication of this judgment under the pseudonym Jeffries & Marton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8007 of 2008

MS JEFFRIES

Applicant

And

MR MARTON

Respondent

REASONS FOR JUDGMENT

Introduction

In the mid-year school holidays in 2012 Mr Marton (“Mr Marton”) took his then almost six-year-old daughter [X] Jeffries-Marton born [in] 2006 (“[X]”) to New Zealand for a five-day holiday on his parents’ [property].
By all accounts from him and his family [X] had a wonderful time getting to know her grandparents better, learning about horses and experiencing life on the farm.
The only problem was that Mr Marton had failed to advise [X]’s mother, Ms Jeffries (“Ms Jeffries”), that he was taking [X] out of Australia.
There were Court orders in place at the time that gave Ms Jeffries sole parental responsibility for [X], and Mr Marton was well aware that

Ms Jeffries did not consent to [X] being taken to New Zealand during her Court-ordered time with him. In fact, Ms Jeffries had specifically denied his request to do so in correspondence between the parties’ solicitors.
Indeed he was so aware of that fact that he had obtained a New Zealand passport for [X] without informing Ms Jeffries, as he is a New Zealand citizen and did not have to demonstrate the consent of the other parent in applying for it.
As soon as Ms Jeffries discovered that [X] had been to New Zealand, she ceased all contact between [X] and Mr Marton.
Mr Marton issued a Contravention Application and an Application for Interim Orders and in response, Ms Jeffries issued these proceedings. [X] later told the Family Report writer in these proceedings that her father had “stolen” her by taking her to New Zealand.
After Ms Jeffries stopped his time with [X], Mr Marton established a Facebook page in [X]’s name and posted various comments, impliedly from [X], in relation to the fact that [X]’s time with him had been stopped.
This incident and its aftermath bring into sharp relief the core issue in this case, which is:
a)whatever Mr Marton does it will be interpreted by Ms Jeffries as an attack on her and/or [X] and his motives will always be seen as nefarious and malicious; and
b)unless actually restrained, Mr Marton will persist in his desire to spend time with his daughter on his terms, and will go to whatever lengths within the strict letter of the law as he perceives it are necessary in order to do so.
The more Mr Marton persists, the more Ms Jeffries feels attacked and it is clear that [X], now almost eight years old, has now taken on the views of her mother, albeit that her mother denies influencing her in any way.
Shortly put, [X] does not wish to see or have anything to do with

Mr Marton at all.

Issues

The issues to be decided in this case are as follows:
a)Is [X]’s alienation from her father due to the behaviour or mental health issues of Ms Jeffries?
b)Has Mr Marton’s behaviour contributed to that alienation?
c)Should [X] be ordered to attend counselling with Mr Marton to try to repair their relationship in circumstances where it is clear that she does not wish to have anything to do with him?
d)Should [X] be ordered to spend any time at all with Mr Marton?

Background

Mr Marton and Ms Jeffries were involved in a relatively short relationship between January 2006 and mid-2007. [X], who was born on [omitted] 2006, is their only child.
Mr Marton had been unsure about his commitment to the relationship for some time before the parties separated and when [X] was 10 or 11 months old, he left Ms Jeffries and went to New Zealand for a work project and to visit his parents.
Ms Jeffries was understandably extremely upset at this event, and feels still that Mr Marton abandoned her and [X] at that time. Ever since, she has seen Mr Marton as the cause of all her problems.
She blames him for her emotional vulnerability, for the breakdown of her subsequent marriage, and for pretty much everything that is wrong with her life.
Mr Marton has been attempting to spend time with [X] ever since he returned from New Zealand in 2007 and his strategies for achieving that goal have been persistent (in his view) or relentless and harassing (in Ms Jeffries’ view).
Some of his behaviour has been at very least odd, and the evidence is that he does not take setbacks lightly.
These are the second set of proceedings between these parties, the first having ended with Orders made by then Federal Magistrate, now Judge O’Dwyer on 25 November 2011 after a trial in August 2011. [X]’s parents have been engaged in litigation about her care for much of her life.
I do not propose to go over matters of fact decided in previous proceedings, but there are features of those proceedings and the judgment made at the end of them that are so similar to these proceedings as to be remarkable. I will therefore refer to those features where I believe it to be pertinent to the decision I must make in these proceedings.
Ms Jeffries obtained an Intervention Order against Mr Marton in 2011 as a result of his continual text messages to her. Mr Marton breached that order in April 2012 when he emailed Ms Jeffries’ brother and then attempted to telephone Ms Jeffries several times. He was fined $1500 as result of that breach.
Ms Jeffries has not repartnered since the beginning of these proceedings and has had the support of her immediate family and a psychologist in dealing with the distress she feels at the ongoing need for engagement with Mr Marton about [X]’s welfare.
Mr Marton has married and, only days before the trial of this matter, his wife had a baby girl who has been named [Y].

Procedural History

As already stated, final orders were made in the previous proceedings on 25 November 2011 (“the previous orders”).
As a result of further litigation initiated by Mr Marton, who claimed that the meaning of the previous orders was uncertain and that

Ms Jeffries had breached them, they were amended by consent on 2 April 2012.
Essentially, those orders provided for Ms Jeffries to have sole parental responsibility for [X] (although she was to seek Mr Marton’s input prior to making any major decisions in relation to [X]’s health, education or religious practice), and for [X] to live with her and to spend time with Mr Marton on alternate weekends, in school holidays and on special occasions. In addition, she was to communicate with him at specific times by telephone and Skype communication.
Pursuant to the previous orders [X] was to spend five days with

Mr Marton in the mid-year school holidays in 2012.
I have already set out what happened during and as a result of that time.
On 27 July 2012, Mr Marton filed a Contravention Application in relation to the cessation of his time with [X].
On 15 August 2012 Orders were made by (then) Federal Magistrate O’Dwyer. They included a Watch List Order and an order for s.11F counselling and the matter was adjourned to 6 September 2012.
In her Initiating Application, filed on 22 August 2012, Ms Jeffries sought orders that the father be psychiatrically assessed, for an updated family report, and that the Orders of 25 November 2011 as amended by the Orders of 2 April 2012 be either discharged or suspended pending receipt of the resultant psychiatric report.
On 6 September 2012 the parties attended upon Ms E, who had provided the Family Report in the previous proceedings, for the purpose of s.11F counselling, and a written memorandum was provided to the Court. I will return to the contents of that Memorandum later in these Reasons.
Mr Marton’s Response, which was not filed until 27 May 2013[1], sought equal shared parental responsibility for [X], that [X] live with

Ms Jeffries, and that she spend alternate weekends, gradually increasing periods of school holidays and specified special occasions with him. He sought further orders in relation to telephone and Skype time, changeover location, [X]’s surname remaining as Jeffries- Marton, what could be termed the usual orders for information exchange, education involvement and health notification, and an order restraining the parties from denigrating each other or discussing the proceedings in [X]’s presence or hearing.
[1] Mr Marton had filed various interim applications since filing his Contravention Application.
On 19 June 2013 Ms Jeffries filed an Amended Initiating Application seeking the discharge of the Orders of 25 November 2011 as amended by the Orders of 2 April 2012, sole parental responsibility for [X], that [X] spend time with her father “as agreed between the mother and father in writing having regard to the child’s wishes”, that she authorise the father to receive information and notifications about [X]’s schooling and health, and that all communication between the parties be by email.
She sought further orders that the father be at liberty to send [X] cards, letters and gifts for her birthday and at Christmas, and that she

(Ms Jeffries) “facilitate and ensure the child sends to the father a letter/card for his birthday and Father’s Day together with a recent photograph of the child”.
Finally, Ms Jeffries sought an order that [X]’s name be removed from the Watch List and that she (Ms Jeffries) “be sole signatory for all legal documents for the child including in respect of Passports”.
The matter finally came before me for trial, with priority, on 24 March 2014. It ran for three days with a further brief hearing on 7 April 2014 to adduce further evidence from the Family Reporter Mr O (“Mr O”). Final submissions were made on that day and my decision was reserved.
In her Amended Outline of Case Document handed up at trial,

Ms Jeffries sought orders for sole parental responsibility, for [X] to live with her and that [X] spend time with Mr Marton “as agreed between the mother and father in writing having regard to the child’s wishes”.
She sought further orders providing for information to be provided to Mr Marton about [X]’s schooling and health, that all communication between the parents be by email, that Mr Marton be permitted to send [X] cards/letters/gifts for her birthday and Christmas, that [X]’s name be removed from the Watch List, that Ms Jeffries ensure that [X] sends Mr Marton a letter/card for his birthday and Fathers’ Day “together with a recent photograph of the child” and that Ms Jeffries be “sole signatory for all legal documents for the child including in respect of Passports”.
However, as evidence unfolded during the trial, it became startlingly clear that Ms Jeffries does not wish [X] to spend any time at all with her father and her case was openly run on that basis.
At trial, Mr Marton sought orders for equal shared parenting responsibility and that [X] live with Ms Jeffries. Further, he sought the following orders[2]:
[2] Outline of Case Document of the Father filed 28 January 2014
3. That the father spend time with the child as recommended by the Family report writer Mr O (“Mr O”) or another suitably qualified person as follows:
(a)     From the date of these Orders, the Child and the Father to attend reportable counselling once a month for 1 to 2 hours in [E] or otherwise as suggested by Mr O;
(b)     Provided the counselling in sub paragraph (a) herein is progressing well and the recommendations from Mr O or another suitably qualified person support an increase in time, the Father to spend time with the Child each alternate weekend from after school Friday until the Sunday evening graduating to an increase in time to the Monday morning prior to the commencement of school;
(c) Provided the time in sub paragraph (b) herein is progressing well and the recommendations from Mr O or another suitably qualified person support an increase in time, the Father to spend extended time with the Child during the school term holiday periods and long summer school holiday periods and at times to be recommended by Mr O or another suitably qualified practitioner;
(d)     Such further time as agreed between the parties in writing.
In addition, inter alia, Mr Marton sought orders to allow him to spend some of the specified time with [X] in Melbourne, for telephone and Skype time with him and his family, for the mother to ensure that he is informed of any illness or injury suffered by [X], for him to receive school reports, photographs and the like, that neither party denigrate the other in [X]’s presence or hearing, and an injunction preventing

Ms Jeffries from changing [X]’s surname or allowing her to be known as any other name than [X] Jeffries-Marton.

Issues and Evidence

a) Is [X]’s alienation from her father due to the behaviour of or mental health issues suffered by Ms Jeffries?

It is undisputed that [X] is alienated from her father in the sense that she has not seen him since she returned from New Zealand about two years ago, and she has since then consistently expressed a wish not to see him in the future.
Further it is Ms Jeffries’ evidence that [X] shows no interest in the cards, gifts and letters Mr Marton sends her with some regularity. It is also her evidence that [X] wishes to be known by the surname “Jeffries” and not by the hyphenated surname “Jeffries-Marton” which, says Ms Jeffries, causes [X] some distress.
The issue is whether that alienation has been caused by Ms Jeffries’ open disdain for Mr Marton and whether there is any chance that if so, there might be hope for a change in Ms Jeffries’ behaviour and attitude such that she might be able to facilitate a relationship between [X] and her father in the future.

Ms Jeffries has no good word to say about Mr Marton. She says that when he sets his mind to a way of operating or a goal he does not stop until he gets his way. She accuses him of relentless harassment of her and [X] ever since he decided that he wanted to be part of [X]’s life when [X] was about twelve months old.
It was her evidence that Mr Marton’s behaviour in re-opening the proceedings only weeks after the previous orders had been made in late 2011 had caused her great distress and that the implementation of those orders had never been easy.
Ms Jeffries presents as a very fragile and vulnerable woman. She became teary frequently in the witness box and she expressed considerable fear of Mr Marton, both in physical terms and in terms of his propensity to contact her in what she sees as deliberate and malicious harassment.
However her major feeling toward him, as evidenced in her presentation at trial, appears to be frustration that he does not just give up, go away and leave her and [X] to get on with their lives.
She is [X]’s primary carer and has been so ever since the time of separation. There is no suggestion that she will not continue to be [X]’s primary carer into the future. In those circumstances her mental health is of considerable significance.
On 18 April 2013 Dr D, Consultant Psychiatrist (“Dr D”), wrote a report in relation to the mental health of both parties.
Dr D’s report describes Ms Jeffries as follows:
Ms Jeffries presented as pleasant and polite woman (sic) who engaged readily and openly. She was prominently anxious, and on occasions she became quite distressed and teary when she reflected upon the issues she had experienced with Mr Marton. She appeared to have adopted a rigid position that Mr Marton should not have contact with [X] in the future in the context of his persistently harassing behaviour. Whilst Ms Jeffries was anxious and upset, she did not otherwise present with signs of a mental disorder.[3]
[3] Report of Dr D dated 18 April 2013 page 1 paragraph 1..
He noted that Ms Jeffries had experienced some psychiatric difficulties after [X]’s birth and that she had been prescribed anti-depressants which she took for some months before relocating to [H]. She had later been prescribed Valium for her anxiety symptoms and had sought the assistance of a psychologist to assist her to manage those symptoms and to deal with her distress at being forced to have ongoing contact with Mr Marton.
Dr D went on to say:
The protracted nature of legal proceedings has clearly had a significant impact on Ms Jeffries’ mental health and she has developed a range of medical problems that appear to be stress related. Ms Jeffries’ anxiety condition can be seen to be attributable to Mr Marton’s demands, but she also appears to lack innate resilience and coping skills. It may be difficult for

Ms Jeffries to acquire greater resilience given the chronicity of these matters.[4]
[4] Ibid page 10 paragraph 4
There was nothing in Ms Jeffries’ presentation in the witness box that causes me to doubt any of Dr D’s conclusions. Her position is entirely rigid and she was not prepared to concede for one moment that there was any hope of [X] wishing to see Mr Marton in the future. Further, she simply could not see any benefit to [X] in pursuing any relationship with her father.
Indeed, it is the basis of her case that she herself is unable to change and that her anxiety has and will have a negative effect on [X] should [X] be forced to spend time with Mr Marton.
Ms Jeffries is adamant that she has not influenced [X] in any way and that it has been [X]’s decision to refuse to spend time with her father.
I have no doubt that Ms Jeffries is honest in her belief about that matter, but her anxiety and distaste are so palpable where Mr Marton is concerned that it is difficult to see how a young child could not pick up on those feelings. [X] is very well aware of her mother’s attitude to and feelings about her father and at her young age that cannot help but have influenced her own feelings about seeing him.
I therefore find that Ms Jeffries’ personal anxiety condition, which may have been exacerbated by her relationship with Mr Marton and the years of legal proceedings, but which existed before the breakdown of that relationship, is likely to have affected [X]’s view of Mr Marton, and that in those circumstances Ms Jeffries’ condition and attitude to Mr Marton have largely contributed to [X]’s alienation from him.

b) Has Mr Marton’s behaviour contributed to that alienation?

Mr Marton might be described as “driven”. This characteristic is found in the evidence of the rather extraordinary steps he took to obtain a passport for [X] without her mother’s knowledge, in his filing applications in this Court within months of final orders being made in 2011, in his establishing a Facebook page in [X]’s name, and in his persistence with the current proceedings when it is very clear that if there were to be any rapprochement between him and [X] the process to get to that point would be onerous indeed, not only for [X] but for him, and possibly for his new family.
He clearly loves his daughter dearly. In 2008, during the previous proceedings, he purchased a property in [H], where the mother lives, and renovated the garage so that it now comprises a two-bedroom self-contained unit where he spent time with [X] until mid 2012. The main dwelling on the property is rented out. In my view that displays a genuine commitment to being involved in [X]’s life.
However, it is equally clear that Mr Marton’s behaviour in persisting with further litigation two months after final orders were made, his continued and insistent communications with Ms Jeffries, and particularly in taking [X] to New Zealand not only without her mother’s permission but against her express wishes has contributed indirectly to [X]’s alienation and to her perception (as reported by

Mr O in the Family Report) that her father “stole” her at that time.
Evidence was adduced at trial that within two months of the delivery of judgment in the previous proceedings, Mr Marton had interpreted the orders made by Judge O’Dwyer in a certain way and had visited the office of Ms Jeffries’ lawyers seeking clarification of his interpretation. He refused to leave when asked and police were called. That behaviour can only be called odd and inappropriate and it cannot help but have raised in Ms Jeffries a fear that this legal process would never be over.
In giving evidence at trial about the New Zealand trip in mid-2012, Mr Marton said that he had sought the advice of his then solicitor and had been told that it was not unlawful for him to take [X] out of Australia during her Court-ordered time with him.
Setting aside for a moment the fact that such advice, if given, would be incorrect as that action would contravene s.65Y of the Act, this illustrates the way Mr Marton thinks. If a desired action is not unlawful, then there is no impediment to implementing it.
In her memorandum provided to the Court on 6 September 2012, Ms E said the following in relation to Mr Marton:
Mr Marton stated that the only remorse he feels for his actions are (sic) that he now realises Ms Jeffries has a mental illness and this makes her stressed, but contemporaneously he does not consider that he is the cause of her stress. Mr Marton provided a list of Ms Jeffries’ disorders including that “… you cannot argue or reason with her, everything she says is a fabrication and the basis of a complete lie.” Mr Marton did not consider that this description could be applied to his behaviour.[5]
[5] S.11F Memorandum of Ms E dated 6 September 2012 page 2.
Further evidence was adduced in cross-examination that Mr Marton had received advice from his then solicitor that even if taking [X] to New Zealand were not unlawful, he would risk being seen by the Court as deceptive if he did not inform Ms Jeffries of his intentions. Nevertheless, Mr Marton went ahead, not even telling [X] that she was going to New Zealand until the night before they left.
It is clear from his evidence that he did not consider how acting against Ms Jeffries’ wishes might play out other than that Ms Jeffries would be reassured of his bona fides. When it was suggested to him that his decision might have an emotional impact on [X], he said:
I guess the impact on the mother was that she would be okay once I got back. That was my train of thinking at the time. As far as [X] was concerned there wasn’t – I – I don’t think there was any – at the time, any emotional impact. But knowing what I know now that she’s going against her mother’s wishes then I obviously shouldn’t have put [X] through that obviously. But at the time I know I wouldn’t have got approval from [Ms Jeffries] to do this and I just wanted to know that I was legally able to, which is why I asked my solicitors.
In cross-examination on this issue, Mr Marton was asked whether he was sorry that he had taken [X] to New Zealand. The following exchange then took place:
Mr Marton: I am, yes. I should never have done it. I should have had the right advice from the start. I should have done things by the right process which I had no idea about until it had already happened.
Counsel for Ms Jeffries: Right. So there’s a number of things that went wrong. Is one of them the fact that you were just determined to get your own way?
Mr Marton: No.
Counsel: No?
Mr Marton: I was determined to take [X] to New Zealand, yes.
Counsel: Well that’s your own way isn’t it?
Mr Marton: Well, it’s not much my way, no, because [X] had always said to me that she would love to go and see the horses and feed the horses and see Gran and Grandad because they have only ever come over here. So she has always shown interest in that. And I knew that she wanted to go but her mum didn’t agree with it unfortunately.
When pressed on the issue of Ms Jeffries not giving her permission because she was afraid that he would take [X] and not return her,

Mr Marton said:
I guess that’s the only concern I had from it and, I guess, my thought process at the time was to – if I went to New Zealand with [X] and brought her back on time then the mother wouldn’t have anything to be concerned about.
Given the history of particularly acrimonious proceedings between him and Ms Jeffries and disputes about the minutiae of orders over several years, this lack of insight is somewhat breathtaking. Throughout his evidence at trial, and despite his statements that he understood that it had been wrong to take [X] to New Zealand against her mother’s wishes, Mr Marton still appeared to think that his actions were justified because he had brought [X] back and he had thought that he was acting legally.
In his psychiatric report Dr D said the following about Mr Marton:
Mr Marton has made a number of poorly judged decisions, including deciding to take [X] to New Zealand, breaching an intervention order by communicating outside stipulated boundaries, and creating a Facebook site can [X]’s name. In part these decisions reflect Mr Marton’s personality style and sense of entitlement, but also reflect the profound lack of effective communication between him and Ms Jeffries (sic).
In his judgment of 25 November 2011 in the previous proceedings, Judge O’Dwyer said the following:
It is obvious that the father is a difficult, self-centred personality with an apparent unrelenting and dictatorial attitude to getting his way. I am satisfied that the identification he makes as to what is in the child’s best interest is happily, for him, what is in his own interest.
I have seen nothing in these proceedings, either in the Affidavit material or from evidence given at trial, to indicate any change in

Mr Marton’s central behavioural traits as described by Judge O’Dwyer more than two-and-a-half years ago.
It is clear to me that Mr Marton’s personality traits and behaviour since the last proceedings have contributed to [X]’s alienation from him, because they have confirmed Ms Jeffries’ view of him, that view having been communicated to [X].
That is particularly sad because of Mr Marton’s clear love for [X] and his apparent inability to put her emotional needs ahead of his own.

c) Should [X] be ordered to attend counselling with Mr Marton in circumstances where it is clear that she does not wish to have anything to do with him?

Since the filing of the Initiating Application in these proceedings [X] has seen multiple social science, family and mental health professionals, some for assessment and some for treatment.
Quite extraordinary lengths have been pursued in order to get her to a point where she is willing to see her father, but to no avail. She is insistent that she wants nothing to do with him and when asked why, she says that he “stole me” and that he was mean to her mother and yelled at her at changeover.
In the course of these proceedings [X] attended the [B] Children’s Contact Centre where staff attempted unsuccessfully to persuade her to meet with her father. Ms Jeffries’ evidence is that the staff went far beyond professional boundaries in doing so, causing significant distress and trauma to [X]. It is her evidence that she has lodged a complaint with the Centre’s management about their behaviour.
When [X] attended Mr O for the preparation of a family report for these proceedings in August 2013, she bluntly refused to meet

Mr Marton and could not be persuaded otherwise despite Mr O’s best efforts. I note in that context that Mr O is a very experienced child and family therapist who is well used to dealing with reluctant children.
In his family report, dated 29 December 2013, Mr O provides two options for [X]’s future: first that she have no contact with her father at all; and second that she engage in long term therapy with a view to finding a way back to a relationship with him.
At trial, Mr O said he believed that the second option was in [X]’s best interests in the long term and that he feared for the welfare of the 30-year-old [X] if she were not to have any contact with her father at all from now on.
As I said to Mr O at trial, while the 30-year-old [X] will necessarily be affected by the orders I make as a result of these proceedings, in making those orders I must be concerned primarily with the seven-year-old [X] whose situation is before me now.
Mr O was placed under quite vigorous cross-examination by counsel for the mother at trial and conceded the following points:
·    He could give no certainty about the duration of any counselling for [X] but said that it could be more than one year.
·    The counselling would need to be conducted in a scenario where [X], Ms Jeffries and Mr Marton each had their own therapists, and a separate therapist would conduct any joint sessions between [X] and Mr Marton should they eventuate.
·    Given that Ms Jeffries lives in [H] and Mr Marton in Melbourne, he could not say whether it was even possible to find four such therapists in convenient locations.
·    He had not spoken to Mr Marton’s wife, and therefore could not say what her view would be of Mr Marton engaging in counselling whose purpose was re-engagement with [X] in circumstances where Mr Marton has a new and still consolidating family.
Ms Jeffries’ evidence was that [X] was traumatised by what Ms Jeffries refers to as her “abduction” by Mr Marton in mid-2012, and that [X] shows little or no interest in the cards and letters Mr Marton sends her regularly.
The only possible light in this dark tunnel is the report of the workers at [B] Child Contact Centre that [X] had been “curious” about her father, although she adamantly and persistently refused to see him when given the opportunity to do so.

The Law

Section 60CA of the Family Law Act 1975 (“the Act”) is clear that when making a parenting order, as I am required to do in this case, the Court must make the child’s best interests its paramount consideration.
Section 60CC sets out the matters the Court must take into account when considering what order will be in the child’s best interests, and I will set out the relevant parts of that section here in full and evaluate the evidence against their provisions:
Section 60CC(1) Subject to subsection (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections(2) and (3).
Primary considerations
Section 60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
The issue raised by s.60CC(2)(a) is not one to be glossed over. Nor is it to be taken as a fait accompli that a meaningful relationship with a parent will automatically benefit a child.
The question of what constitutes a “meaningful relationship” in this context was considered by Brown J in Mazorski v Albright (2008) 37 FLR 518.
In that case, Her Honour was considering a situation where the mother of a child conceived during a casual relationship wished to relocate the residence of the child from one State to another. Her Honour said, at paragraph 26:
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders [2007] Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In the present case, given the father’s propensity to forge ahead with his own agenda, regardless of its impact on his daughter and her mother, it is somewhat difficult to see how a relationship with him would be “meaningful” to [X] (as defined by Brown J and Cronin J) without a major change in his personality.
The second limb of s.60CC(2) requires me to protect [X] from physical or psychological harm from abuse, neglect or family violence.
Ms Jeffries obtained an Intervention Order against Mr Marton in 2011 because of his relentless attempts to communicate with her about [X] – sometimes sending up to 30 messages in one day – and his belligerent behaviour at changeover. I note that there was nothing in his evidence before me to indicate that without that Intervention Order he would have ceased that communication or indeed his behaviour at changeover.
When weighing sub-section (a) of s.60CC (2) against sub-section (b), I am required by s.60CC(2A) to give greater weight to matters arising under sub-section (b) than to those arising under sub-section (a).
Therefore, my determination of what is in [X]’s best interests will be informed by the need to protect her from harm ahead of the benefit to her of a meaningful relationship with her father, and I will make orders that protect her from that harm as far as is possible.

Additional considerations

Pursuant to s.60CC(3), the additional considerations the Court must take into account are:
s.60CC(3)(a): any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
[X]’s views are clear and unequivocal. She does not wish to have anything to do with her father. Nevertheless, she is not quite eight years old, and I have found that it is highly likely that her views have been influenced by her mother’s undiluted disdain for him. I therefore place little weight on her views.
Section 60CC(3)(b): the nature of the relationship of the child with:
(i) Each of the child’s parents; and
(ii)Other persons (including any grandparent or other relative of the child);.
[X] clearly has a close and loving relationship with her mother who has been her primary caregiver for her whole life, and there is evidence that she also has a positive and loving relationship with her maternal family, with whom she has regular contact.
Her relationship with her father is simply non-existent at this time, although it was his evidence that when he and [X] were spending time together they had a close and loving bond. There is also evidence, in the form of an Affidavit and oral evidence from Mr M, [X]’s paternal grandfather, that her relationship with the paternal side of her family was also warm and close, albeit that she saw them much less than she saw her maternal family because they live in New Zealand.
However, it is also clear that the relationship between [X] and the paternal side of her family is greatly influenced by Ms Jeffries’ views of Mr Marton, and that Ms Jeffries has little understanding of the impact on [X] of having her relationship with her paternal grandparents severed without notice in 2012.
Section 60CC(3)(c): the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child.
Ms Jeffries has had sole parental responsibility for [X] since the orders of 28 November 2011 and has made all major decisions about her welfare since that time, albeit that pursuant to those orders, she is required to inform and consult with Mr Marton on particular issues.
Mr Marton has been prevented by those orders from making those major long term decisions.
Both parties have taken every possible opportunity to spend time and communicate with [X], albeit that Mr Marton has been prevented from doing so for more than two years now other than via the cards and letters he sends to her.
Section 60CC(3)(ca): the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
[X] is supported in the financial sense by both her parents, with

Ms Jeffries paying for her day-to-day expenses and Mr Marton paying child support as assessed by the Department of Human Services Child Support Agency.
He also paid all expenses resulting from her trip to New Zealand in 2012.
Section 60CC(3)(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;
The orders sought by Ms Jeffries do not involve any change in [X]’s current circumstances, as she is not currently spending any time with her father.
Mr O’s evidence is that [X] will inevitably suffer from the lack of that contact and relationship with Mr Marton, notwithstanding Mr Marton’s particular personality traits.
Mr Marton seeks orders that [X] participate in a long and quite arduous (in terms of travel if nothing else) process of therapy in order to re-establish a positive relationship with her father. That process is vociferously opposed by [X]’s mother.
Such an order would constitute a major change in [X]’s current circumstances and I take all the ramifications of such a process into account.
Section 60CC(3)(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;
Ms Jeffries and [X] live in [H]. Mr Marton lives in Melbourne, some four or five hours drive away. Mr O, who would be involved in any therapeutic process to re-establish a relationship between [X] and her father, practises in [E], a considerable distance from both parents’ homes.
Nevertheless, Mr Marton has demonstrated throughout these and previous proceedings that he is prepared to travel to [H] to visit [X], and indeed he has bought property there to facilitate those visits. He has also brought [X] to Melbourne to stay with him.
In those circumstances, while the considerable distance (and its associated travel and accommodation expenses) is significant, it does not on its own appear to have greatly affected the amount or quality of time [X] has spent with Mr Marton.
However, if I were to make an order for [X] to participate in therapy with Mr O in order to explore the possibility of re-establishing a relationship with Mr Marton, it is possible that the significant distance from [H] to [E] (approximately 215 kilometres and three hours’ drive) might have an impact on [X] and perhaps on the therapy itself.
Section 60CC(3)(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;
This is perhaps the most pertinent consideration in this case.
Both parents are intelligent and educated people who are perfectly capable of caring for [X]’s needs in the material and intellectual senses.
However, both have shown personality traits over long periods which give the Court great concern as to their ability to meet her emotional needs.
Ms Jeffries’ vulnerabilities, exacerbated by the actions of Mr Marton, and whether consciously or not, have been communicated to [X] such that she now wishes to have nothing to do with her father.
One can only wonder what might now be the case if, on her return from New Zealand, [X] had been able to convey the fun she had experienced with her paternal family, and her mother had made positive statements about how lucky she was to have been able to travel overseas and have such a good time.
Similarly, one can only speculate on what the situation might now be if Mr Marton had put aside his own wishes and kept [X] in Victoria in the mid-year school holidays in 2012.
As discussed above, both parents have put their own emotional needs ahead of [X]’s to her detriment, although I am sure both would deny having done so.
Section 60CC(3)(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;
[X] is almost eight years old. Her mother is a 38-year-old Australian, her father a 41-year-old dual New Zealand and Australian citizen. There are no particular cultural characteristics of the child to be taken into account and I have already addressed the personal characteristics of the parents that I consider relevant.
Section 60CC(3)(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 a relevant factor in this case.
Section 60CC(3):(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
Both parents clearly love [X] very much, and each has much to offer her, albeit in very different ways.
However, both have allowed their own needs and emotions to outweigh and overshadow their responsibilities as [X]’s parents. They have displayed an immaturity and lack of insight in dealing with her that has allowed her to become a pawn in their continuing conflict, and like

Mr O, I too fear for the adult [X]’s emotional wellbeing as a result.
I will make orders that protect [X] as far as is possible from the effects of that conflict at this time in her life, although it is probable that damage has already been done to her emotional development.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family.
I have already made reference to instances of family violence alleged against Mr Marton. I note his rejection of those allegations and while I find on balance that it is likely that they have been somewhat exaggerated as a result of Ms Jeffries’ personality difficulties,

Mr Marton clearly lacks insight into the whole issue of what constitutes family violence. If a course of action is legal and promotes his needs and wishes, then nothing will stand in his way.
The fact that Ms Jeffries was able to obtain an Intervention Order after a contested hearing indicates that there was some family violence, as defined in the Act, between the parties, and that its instigator was

Mr Marton. The fact that he was fined for a breach of that order adds weight to that view.
Section 60CC(3) (k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
(v) any other relevant matter;
Ms Jeffries obtained an Intervention Order against Mr Marton in 2011 as a result of Mr Marton constantly sending text messages to

Ms Jeffries about [X]’s time with him. That order was made after a contested hearing and a finding was made that family violence had occurred and was likely to occur again. That is a significant finding and again weight is added to the severity of the abuse by the finding that Mr Marton had breached the order.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The history of this matter does not give me any confidence that there are any orders the Court could make that would prevent further litigation. These parties have been engaged in heated and highly conflictual litigation since [X] was about two years old. Their individual personality traits, as diagnosed by Dr D and played out in their evidence before the Court, mean that neither is able to let the matter go for the sake of their daughter.
That said, if there is no contact between [X] and Mr Marton, at least until she is adult and can make a mature decision as to whether she wishes to have a relationship with him, she would at least experience some respite from the conflict between her parents, and it is to be hoped that they will understand that and allow her to grow up without that conflict in her daily life.
Section 60CC(3)(m): any other fact or circumstance that the Court thinks is relevant.
[X] has never met, and may not even know of the existence of her half-sister [Y], and while that situation is unlikely to change in terms of her having contact with [Y], Mr O was very concerned about the emotional and psychological impact on [X] if she were to discover later in her life that she had a sister and that that fact had been kept from her.
In those circumstances, I will make an order that she be told in appropriate circumstances.

Conclusion

On balance, when I consider the whole history of this matter, I find that it is not in [X]’s best interests to be put through a long period of therapy whose outcome is uncertain in order for her to re-establish a relationship with her father, and will therefore make orders that there be no direct contact between them.
[X] is a young child. She does not deserve to live with the continued animus between her two very different and highly incompatible parents.
This decision should be seen neither as a punishment for Mr Marton nor as a victory or vindication for Ms Jeffries, although each will no doubt view it through the filter of his or her own particular personality traits.
It has been made simply to remove the pressure from a young girl who has been at the centre of her parents’ toxic feud almost her whole life.
That feud must end, or at least [X] must be removed from its centre for the sake of her welfare and development and in her best interests.
For the same reasons as set out above, I find that the presumption of shared parental responsibility found in s.61DA of the Act is rebutted under s.61DA(3). That is, I find that it is not in [X]’s best interests for her parents to have equal shared parental responsibility for her and will make an order for Ms Jeffries to continue to have sole parental responsibility.
Having decided that there should be no time spent between [X] and her father, there is no need to address the fourth issue set out in paragraph 12 hereof.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 7 August 2014

[2014] FCCA 1730

4 August 2014

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Injunction

Judicial Review

Procedural Fairness