Johnson & Field
[2008] FamCA 591
•2 July 2008
FAMILY COURT OF AUSTRALIA
| JOHNSON & FIELD | [2008] FamCA 591 |
| FAMILY LAW – CHILDREN – With whom a child spends time with – Orders were made in January 2007 providing that the child live with the father and spend time with the mother which is to be supervised at first then unsupervised – These proceedings are concerned with the amount of time the child should spend with her mother – The mother continues to undermine the child’s relationship with the father and does not recognise her responsibility to support and facilitate the child’s time and relationship with the father – The mother does not recognise that much of her behaviour is abusive to the child – The child needs to be protected from psychological harm from behaviour of the mother that is emotionally abusive of her – Orders are made for the reduction in the time the child spends with her mother as well as restraining the mother from requesting, and the father from permitting, any additional time FAMILY LAW – CHILDREN – With whom a child communicates – Best interests of a child – Orders are made for the child to have telephone communication with the mother limited to one call each Sunday when she has not spent time with the mother and the mother may communicate with the child by card or letter or send her a gift only for the child’s birthday or for Christmas and not for other occasions. FAMILY LAW – CHILDREN – With whom a child lives – Child’s views – The child still wishes to live with her mother and otherwise to spend more time with the mother – Clearly part of the child’s motivation for these wishes is her sense of responsibility for her mother’s welfare and her knowledge of her mother’s wishes – The child’s wishes, because of her young age and immaturity, do not reflect a careful consideration of short and long term implication of living with her mother or spending more time with her mother. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Johnson |
| RESPONDENT: | Ms Field |
| FILE NUMBER: | NCF | 3468 | of | 2000 |
| DATE DELIVERED: | 2 July 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | JUSTICE MULLANE |
| HEARING DATE: | 23 May 2008 |
REPRESENTATION
| THE APPLICANT: | Mr Johnson |
| COUNSEL FOR THE RESPONDENT: | Mr G Kenny |
| SOLICITOR FOR THE RESPONDENT: | Messrs Stacks |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms K. O’Rourke |
Orders
The interim order (order 7) of 13 March 2008 is discharged.
Orders 8, 9 and 10 of 25 January 2007 are discharged.
The parties’ child […] born […] August 1998 is to spend time with the mother only on the following occasions:
3.1each 4th weekend in school terms from 7pm Friday to 4pm Sunday (Monday if it is a public holiday);
3.2each year from 7pm Boxing Day to 6pm on 29 December;
3.3in each summer school vacation from 7pm on the last Wednesday of the vacation to 4pm on the last Saturday of the vacation; and
3.4from 7pm Thursday to 4pm Sunday commencing on the first Thursday of each other school vacation.
The father is restrained from permitting the child to spend any other time with the mother than as defined in order 3.
Each period the child is to spend with the mother is to be implemented by the father (or a responsible adult familiar to the child and nominated by him) delivering the child to the mother’s partner Mr W (or a nominee of the mother approved beforehand by the father) at the MacDonald’s Family Restaurant at F at the start of the period and N (or the mother’s approved nominee) delivering the child to the father (or his nominee) at the same place at the end of the period.
Each party must each keep the other informed of his or her home telephone number, mobile telephone number and residential address.
The child is to have telephone communication with the mother limited to one call each Sunday when she has not spent time with the mother and to be implemented by the mother telephoning the child at the father’s residence between 7.00 pm and 7.15pm.
The mother may communicate with the child by card or letter or send her a gift only for the child’s birthday or for Christmas and not for other occasions.
The mother is restrained from:
9.1discussing with the child or in her presence or hearing the possibility or likelihood of the child living with the mother;
9.2questioning the child about or discussing with her, or in her presence or hearing, the father or events in his home;
9.3enrolling the child in any extra curricular activity or suggesting to her any such proposal without the father’s prior written approval;
9.4arranging for the child to attend any counselling with any person;
9.5attending at the child’s school at any time;
9.6attending any changeover under order 5; and
9.7making any request of the father for the child to spend any time with the mother other than the times listed in order 3.
The father must as soon as practicable arrange and implement counselling for the child (to assist her to adapt to these orders) with the counsellor the child saw pursuant to order 13 of 25 January 2007 or, if that counsellor is not available, a counsellor nominated or approved by the Manager of Child Dispute Services of the Newcastle Registry of the Family Court of Australia and the father must continue the counselling so long as the counsellor reasonably advises.
The Manager of Child Dispute Services of the Newcastle Registry of the Court must appoint a Family Consultant to supervise the parents’ compliance with these orders and the continuing orders of 25 January 2007, such supervision to continue until 31 December 2008.
The supervisor must give each party such assistance as is reasonably requested by that party in relation to compliance with and the carrying out of the orders.
These Orders incorporate and have attached to them a document setting out:
13.1 the obligations that these Orders create;
13.2the consequences that may follow if a person contravenes an Order;
13.3the availability of programs to help people understand the responsibilities under parenting orders; and
13.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.
The father must bring the child to the Newcastle Registry at a time arranged with the Judge’s Associate so that the orders and reasons can be briefly explained to the child before the Judgment is released to the parties.
Otherwise any outstanding applications between the parties are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Johnson & Field is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCF 3468 of 2000
| MR JOHNSON |
Applicant
And
| MS FIELD |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This was a hearing pursuant to orders of 25 January 2007 as to what time the parties’ daughter the child, who turns 10 in August, should spend with her mother.
ORDERS
After a 5 day defended hearing before Justice Purdy orders were made on 4 April 2002 as follows:
1)That the Orders made by the Federal Magistrate Service on 22 August 2001, be discharged.
2)That the Father have contact with the child […] born […] August, 1998 for two hours every third Saturday commencing Saturday 18 May 2002.
3)That the said contact take place at the Interrelate Children’s Contact Centre at Coffs Harbour (“Interrelate”) and shall be supervised by an employee of that service.
4)That by way of implementation of Orders 2 and 3 above, within 7 days of the making of these orders, each party shall contact Interrelate and will provide information and attend interviews or assessments as directed by Interrelate.
5)That each party sign the Supervised Contact Service Agreement as required by Interrelate.
6)That each party is to pay fees as required by Interrelate.
7)That contact pursuant to the above orders be implemented by the Mother delivering [the child] to Interrelate at Coffs Harbour 15 minutes prior to the commencement of contact and collecting [the child] 15 minutes after conclusion of contact.
8)That, at all times, each party comply with the directions of the Co-ordinator of Interrelate at Coffs Harbour or his or her nominee.
9)That each party inform the Co-ordinator of Interrelate at Coffs Harbour of the particulars of any Apprehended Violence Order affecting either of them.
10)That each of the parties be restrained from bringing any person other than [the child] to any of the contact sessions unless requested to do so by the Co-ordinator of Interrelate at Coffs Harbour.
11)That without admissions, within 14 days of the date of these Orders, the Mother make arrangements to attend therapeutic counselling, as approved by the Director of the Family Court Mediation Service at Newcastle, such counselling to assist the Mother with the following issues:-
a.her attitude towards the Father’s role with [the child];
b.the effect of her own upbringing on her attitude towards the Father’s relationship with [the child];
c.her fears regarding [the child]’s safety with the Father;
d.strategies to assist [the child] in separating from the Mother for contact visits with the Father;
e.parenting after separation:
f.such other issues as agreed between the Mother and the counsellor.
12)That the Father continue to attend upon Ms J, Psychologist, of B Medical Centre for therapeutic counselling to address issues arising from the breakdown of his relationship with the Mother, the re-establishment of his relationship with [the child] and parenting after separation.
13)That by the last working day in July 2002, the Father is to have attended and completed an Anger Management course approved by the Director of the Family Court Mediation Service at Newcastle.
14)That within 7 days of the date of these Orders, the Child Representative shall forward to the Co-ordinator of Interrelate at Coffs Harbour a copy of the Family Report dated 6 August 2001, and a copy of the affidavit and report of Mr B sworn 31 October, 2001.
15)That within 21 days of the date of these Orders the Child Representative forward to each of the Father’s and Mother’s therapeutic counsellors a copy of the Family Report dated 6 August 2001 and a copy of the affidavit of Mr B sworn 31 October 2001 including his report.
16)That a further Family Report be prepared, pursuant to Section 62G(2) with the assessments to take place as close as possible to the resumption of the hearing pursuant to Order 18 below.
17)That the Child Representative do all things necessary to obtain a report from Interrelate at Coffs Harbour in relation to the sessions of supervised contact, at a time approximately 6 weeks prior to the next hearing date.
18)That these proceedings be adjourned for a further three days hearing Part Heard, at the first available sittings in Newcastle, after September 2002.
19)That liberty be granted to the parties and Child Representative to restore to the list on 7 days notice.
20)That each party advise the other within 7 days of any change in residential address.
21)That the Mother enrol [the child] in a pre-school or daycare centre on or before 6 May 2002 and ensure her attendance no less than one day or two half-days each week.
22)That upon enrolment of [the child] at such pre-school or daycare centre the Mother is to inform the Child Representative of the name and address of such pre-school or daycare centre and authorise the Principal to supply such information to the Child Representative as may be sought concerning [the child]’s progress.
23)That the Father be restrained from contacting or visiting such pre-school or daycare centre without the consent of the Mother.
24)That the Father pay to the Mother the sum of $75 towards the cost of implementing each occasion of contact, payment to be made not less than 7 days prior to each occasion of contact and to be paid to the credit of an account with a financial institution nominated by the Mother within 14 days of the date of these orders, and contact pursuant to the above orders to be conditional on such payment.
25)That each party be restrained from discussing these proceedings with [the child] or with any other person in the presence of [the child], or allowing any other person to discuss the proceedings with [the child] or with any other person in the presence of [the child].
26)That neither party denigrate the other in the presence or hearing of [the child] or allowing any other person to so denigrate in the presence or hearing of [the child].
27)That the Mother inform the Father of any medical emergency affecting [the child] whilst in her care, including admission to hospital or urgent medical treatment by a doctor.
Orders were made on 25 January 2007 after a 5 day defended hearing before me as follows:
1.All previous parenting Orders in relation to the child […] (also known as [the child]) born […] August 1998 are discharged.
2.[The child] is to reside with the father.
3.Pursuant to section 65L of the Family Law Act the Manager of Children’s Dispute Services appoint a Family Consultant for a period of 1 year to do the following:
3.1.Supervise the compliance of the parties with these orders;
3.2.Supervise the time [the child] spends with the mother under Order 7 and organise the implementation of the arrangements for that time,
3.3.Liaise with parties of the child to assist them in compliance with the parenting arrangements,
3.4.Provide a party with such assistance as he or she reasonably requests in relation to compliance with and carrying out these Orders;
3.5.Consider recommending delay in the commencement of unsupervised and overnight time the mother spends with the child,
3.6.Provide advice to the father in caring for the emotional needs of the child,
3.7.Report on the progress of the parties’ compliance with the parenting arrangements.
4.The Family Consultant is requested to arrange as soon as possible for the mother and the maternal grandmother to meet with [the child] so that the mother and the maternal grandmother can inform [the child] of the following:
4.1.That the father is not a “mean” person;
4.2.That the father did not try to kidnap [the child] nor break [the child]’s bedroom window when she was younger; and
4.3.That the father did not sexually or physically abuse [the child].
5.The mother must deliver to the Family Consultant at the meeting under Order 4 an adequate amount of clothing and 'special' belongings for [the child], including her school requisites and any sporting clothing or equipment, for provision of these items to the father.
6.Until 1 March 2007 [the child] is to have no telephone contact or face to face contact with the mother or the maternal grandmother.
7.Thereafter the Family Consultant is to supervise [the child] spending time with the mother on at least 3 occasions on dates and times to be arranged by the Family Consultant with the parties, such contact to occur at the Child Care Facilities of the Newcastle Registry of the Family Court of Australia.
8.Thereafter, unless otherwise recommended by the Family Consultant in a short report within 14 days of the third occasion, [the child] is to spend time with the mother as follows:
8.1.every second Sunday from l0am to 5 pm;
8.2.after the fourth occasion of such Sunday contact, on every other weekend from l0am Sunday until start of school Monday.
9.Change-overs for the unsupervised time the mother spends with the child must occur at the school the child attends if on a Monday morning and otherwise at [T] McDonalds at the commencement of the time and a public venue nominated in writing by the father to the mother at the conclusion of the time.
10.Pending further order the mother not communicate with [the child] by telephone, letter or card without the written consent of the father and the Family Consultant.
11.After the fourth occasion of contact under Order 8.2 the Family Consultant is to prepare a report considering the following issues:
11.1.a history of the time the mother has spent with the child since the making of these orders;
11.2.an analysis of the quality of the time spent by the mother with the child and the benefit to the child of such time;
11.3.a consideration of the mother's attitude to the child's relationship with the father;
11.4.a recommendation as to the arrangements for the mother to spend further time with the child, including alternate weekends, holiday time and communications with the child by way of telephone, cards and letters;
11.5.any other matter considered relevant by the Family Consultant.
12.When the report of the Family Consultant is released the matter is to be relisted for consent orders or further directions for hearing.
13.The father must do all acts and execute all documents to ensure the attendance of [the child] for ongoing counselling with a Counsellor nominated or approved by the Independent Lawyer for the Child concerning the parental conflict, the child’s separation from her mother, and the child’s relationship with each parent, and the father must:
13.1.contact the Independent Lawyer for the Child’s within 7 days to obtain the necessary nomination or approval;
13.2.arrange an urgent appointment for [the child] and her attendance at such appointment;
13.3.ensure his attendance and the attendance of [the child] on each such occasion of counselling as the Counsellor requests such attendance and comply with all reasonable requests of the Counsellor in relation to the counselling; and
13.4.the father must promptly pay the reasonable fees of the Counsellor for the counselling services.
14.The Independent Lawyer for the Child must provide the Counsellor with a copy of the report of the Single Expert, Ms S, and a copy of the Judgment before the first appointment.
15.The mother has responsibility for decisions as to the day to day care, welfare and development of [the child] at periods when [the child] is spending time with the mother.
16.The father has all other parental responsibility in relation to [the child].
17.Commencing within 21 days of these Orders the mother must attend ongoing counselling regarding implementation of these Orders, the mother’s behaviour towards [the child] and the mother’s relationship with [the child] with a Counsellor approved or nominated by the Manager of the Children's Dispute Services of the Court at Newcastle Registry and the mother must:
17.1.contact the manager of the Children's Dispute Services within 7 working days to obtain the necessary approval or nomination;
17.2.attend the first appointment nominated by the Counsellor;
17.3.promptly pay the reasonable fees of such Counsellor for each appointment; and
17.4.attend all subsequent counselling appointments the Counsellor reasonably nominates.
18.By consent the father must authorise the Principal of any school which [the child] attends to provide the mother with copies of school reports and any other information regarding [the child]’s education requested by her from time to time.
19.By consent the father must authorise any medical professional treating [the child] to provide the mother with information requested by her regarding [the child]’s health and treatment.
20.By consent the father notify the mother urgently of any medical emergency or serious medical condition suffered by [the child].
21.For a period of 12 months from today the mother is restrained from questioning [the child]or conversing with her about the father, the father’s care of [the child], or events in the father’s household, or permitting anyone else from questioning [the child] about such topics.
22.By consent the parties must each comply with the reasonable and lawful directions of the Manager of Children's Dispute Services, Newcastle Registry of the Family Court of Australia and the Family Consultant in regards to their compliance with the parenting arrangements.
23.Pending further order the mother not contact or approach [the child] at her school except with the written consent of the father and the principal of the school.
24.By consent each of the parties is restrained from discussing proceedings between the parents in the hearing or presence of [the child] or allowing [the child] to view any documents associated with any such proceedings.
25.By consent each of the parties is restrained from denigrating the other party or any member of the other party’s household in the presence or hearing of [the child] or allowing any other person to do so, or permitting [the child] to remain in that person’s presence if such denigration continues, notwithstanding.
26.The Registry Manager is to provide a copy of the Judgment to the Department of Community Services responsible for the [T]/[TC] area.
27.Each party must keep the other informed of his or her address and telephone number(s) and the father must keep the mother informed of what school [the child] attends.
REASONS FOR THE ORDERS OF 25 JANUARY 2007
The orders of 25 January, 2007 were published and amount to 166 pages. They will not be repeated here. Suffice it to say for purposes of this Judgment, that the principal reasons for the Order for the child to reside with her father and orders 3, 4, 6 to 14, 17, 21 to 26 were primarily as follows:
1)The child enjoyed time spent with her father and his family and wanted to continue that;
2)The mother was unable to facilitate the child’s development of independence of her mother, including sleeping separately and staying away overnight and unable to separate the child’s interests from her own regarding the child’s relationship with her father and spending time with him. The mother’s relationship with the child was emotionally abusive as she pursued conflict with the father and her negative attitude towards him at the child’s expense – “not just in terms of [the child]’s time with him and relationship with her, but also in terms of her relationships with her paternal family, her Aboriginality, and her need for support of Aboriginal people in coping with racism”.
3)The mother’s relationship with the child was also abusive in terms of a pattern of conduct by her eliciting negative statements by the child about her father and denying the child reality testing about such matters.
4)the child’s relationship with her maternal grandmother was also abusive because of the hostility of the maternal grandmother to the father and her pursuit of that contrary to the child’s interests.
5)The father was better able and more likely to support the child in accepting her Aboriginality and coping with racism, and also likely to have more positive effects on her in terms of her self-esteem and self-identity.
6)The father was likely to better facilitate the child’s involvement with her Aboriginal family and the support and other benefits that that will provide her.
7)In the father’s care the child was likely to grow without an enmeshed relationship and without her inappropriately parenting him, feeling responsible for him or his happiness, or having difficulty separating from him.
8)The father was likely to facilitate the child spending such time with the mother and the maternal grandmother as is consistent with the child’s interests. He was also likely to facilitate the mother participating in decisions about major long term issues concerning the child. If the child lived with the mother she was not likely to facilitate the father participating in decisions about long term issues and she was likely to restrict or frustrate his spending reasonable time with the child. She was likely to prevent the child from having reasonable communications with him.
9)If the child lived with the father in the short term this was likely to cause her emotional trauma, but this was likely to be moderated and limited in terms of duration if she had the benefit of counselling.
10)A change to living with the father was likely to have the following benefits to the child:
·Minimise or eliminate emotional abuse of the child by the mother and maternal grandmother;
·Ensure that the child has the benefit of a meaningful relationship with each of her parents;
·Ensure that the child has the support and other benefits of close relationships with her extended paternal family (including her paternal grandmother) and members of the Aboriginal community;
·Ensure that the child has involvement in Aboriginal culture and the Aboriginal community; and
·Provide her with support of Aboriginal people in preparing her for, and coping with, racism.
11)If the child continued to live with the mother, the mother was likely to undermine, frustrate, obstruct or prevent the child spending time with the father and communicating with him, so much as to substantially deny her right to maintain personal relations with the father and direct contact with him on a regular basis.”
12) The mother’s capacities were inadequate to provide for the child’s needs to:
·Enjoy a meaningful relationship with both parents;
·Be protected from exposure to parental conflict;
·Avoid emotional abuse by her mother and the maternal grandmother;
·Grow in her independence;
·Enjoy the freedom and innocence of childhood and avoid responsibilities inappropriate for a child;
·Enjoy her Aboriginal and South Sea Islander cultures and participate in the Aboriginal community; and
·Prepare for and cope with racism.
13)The mother’s attitude to the father was negative and hostile and she did not recognise the significance to the child of him personally, or his role as the child’s father.
14)If the child resided with the mother further proceedings about the child were much more likely as it was likely the mother would continue to undermine, frustrate and obstruct orders for the child to spend time with her father, and the child’s relationship with her father. The likelihood was that the father would be forced to take further contravention proceedings and/or further proceedings seeking an order for the child to reside with him.
15)The benefits to the child of having a meaningful relationship with both of her parents would only occur if the child resided with her father.
16)The child needed to be protected from emotional abuse by the mother and the maternal grandmother and consequent psychological harm.
17)Equal parental responsibility or shared parental responsibility would be contrary to the child’s interests because the mother would use the opportunity to pursue her hostility towards the father and conflict with him at the child’s expense.
18)To enable the child to settle with her father and in her new school without undermining behaviour by the mother and the maternal grandmother, it was in the child’s interests that they not spend time with the child until after 1 March 2007, which would mean that from when the child went to spend time with her father on 14 January 2007, she would have more than 6 weeks to settle with the father and more that 4 weeks to settle at her new school.
19)In the meantime there should be an occasion when, with the assistance of a Family Consultant, the mother and the maternal grandmother meet with the child and inform her that the father is not a “mean” person, did not try to kidnap the child, nor break her bedroom window when she was younger and did not sexually or physically abuse her. That should happen as soon as possible and should also be the occasion when the mother hands over clothes, school requisites, sporting equipment and special belongings of the child for provision to the father.
20)Until 1 March there should otherwise be no face to face or telephone contact by the child with the mother or the maternal grandmother, so that the child and the father are not undermined and the child can settle in his care and her new school.
21)To protect the child from emotional abuse there should be an Order restraining the mother until further order from communicating with the child by telephone, letter or card, or contacting or approaching her at school except with the written consent of the Principal and the father.
22)The child’s contact with the mother should then be supervised by a Family Consultant to protect the child from emotional abuse by the mother. The supervised contact should occur on 3 occasions, at the Child Care Facilities of the Court at Newcastle at dates and times to be arranged by the Family Consultant with the parties.
23)After the fourth occasion of the child spending time with her mother from 10am Sunday to start of school Monday, the Family Consultant should prepare a further report addressing the history of the time the child has spent with her mother, the “quality” of the time and benefits to the child, the mother’s attitude to the child’s relationship with the father, a recommendation for further time to be spent by the child with the mother, and any other matters the Consultant considers necessary. When the report is released, the proceedings are to be relisted for further directions for hearing.
24)Meanwhile, in the hope of developing insight by the mother into the effects of her behaviour on the child and the need for her to support the father in his role as residence parent, and support the child’s relationship with him, and also in the hope of obtaining help for her to implement the orders and improve her relationship with the child, there should be orders for the mother to attend ongoing counselling commencing within 21 days of the Orders.
25)The child’s interests also required that she be protected from emotional abuse by the mother by an order restraining her for 12 months from questioning the child or conversing with her about the father, the father’s care of the child or events in the father’s household, or permitting anyone to do so. This perverse process had to be stopped. The child had to be protected from the conflict of loyalties, stress and negativity of her mother using her as a spy against her father, his household and family.
26)By way of further protection of the child and in anticipation that the mother may again use the Department of Community Services (“DoCS”) to pursue her conflict with the father by raising unmeritorious complaints about him, the DoCS Office for T area should be provided with a copy of the Judgment.
27)As further support for the parents and support and protection for the child there should be an Order under Section 65L of the Act for a Family Consultant to supervise compliance of each parent with these Orders and provide them with any reasonable assistance they need or request. This should include advice for the father on providing for the child’s emotional needs. This supervision should be reportable.
28)The child should also have the benefit of ongoing counselling by orders requiring the father to facilitate that.
EVENTS SINCE 25 JANUARY 2007
Ms X, a Family Consultant, was appointed to supervise the initial contact and prepared the report.
On 14 February 2007 Order 4 was implemented and Ms X supervised the meeting of the child with her mother and maternal grandmother.
The supervised time that the child was to spend with the mother pursuant to order 7 occurred on 2 March, 15 March and 4 April, 2007. The child then commenced spending time with her mother every second Sunday and on 4 August 2007 commenced the weekend contact under Order 8 on every other weekend.
Instead of the overnight Sunday contact that was ordered, the father offered the mother, and she agreed to, time from 10am Saturday till midday Sunday. This involved the child spending more time with her mother than under the orders.
By December 2007 the parties had agreed to the child spending each alternate weekend with her mother from 9am Saturday till 5pm Sunday, and for her being with her mother from 3pm Christmas Eve until 3pm Christmas Day in 2007 and each alternate year. They also agreed that the child would spend 2 periods of 7 nights with her mother during Term 4 school holidays in 2007.
In addition the father made the child available to visit her new born half sister on the day of her birth in August 2007. In addition he also agreed to the child having an additional time with the mother (including 2 overnights) to attend the wedding of the mother’s brother.
The father also agreed to the mother attending the child’s school for any occasions that a parent would normally be invited to attend the school, but requested a limit to the number of voluntary roles the mother might undertake at the school. The mother agreed to not undertake more than one voluntary attendance each week at the school in addition to the parent occasions.
By December 2007, the father reported to Ms X that the child was no longer becoming upset after returning from the mother’s care, but that at times her attitude was “a little defiant and obstructive”. He said though, that this did not last long and was manageable.
By then the child had settled in to the school, made some good friends and enjoyed sleeping over at the homes of friends and extended family on a regular basis. She had restored a close and affectionate relationship with her extended paternal family.
The child was still expressing a wish to each of the parents that she wanted to return to her mother. She confirmed this when interviewed by Ms X in October 2007, but also agreed that the order for her to live with her father was “okay”, but she wished to spend more time with the mother.
In December 2007 Ms X reported that the Clinical Psychologist who saw the child on 12 occasions was of the view that the child was coping well living with her father despite her wish to live with her mother.
The psychologist described the observed relationship between the child and her father as “lovely and appropriate”. She was of the opinion that the child was learning to transfer between her 2 families quite well. The psychologist considered that further counselling of the child was not necessary at that stage and she was confident that the father would contact her if further problems arose.
Ms X reported in December 2007:
Even against this backdrop it would appear that [the child] is managing to exist across both her families and cultures and would probably benefit from some more time with the mother in the future and would benefit from the parties coming into contact with each other as little as possible. It is also important for [the child] to have a regular relationship with her half-sister and the mother’s extended family.
Ms X recommended in December 2007 as follows:
33It is recommended that whilst the child lives within the existing distance from the mother that the child spend each alternate weekend from Friday after school to Monday to school (Tuesday if Monday is a public holiday) with the mother. It is also recommended that the child spend half of all school holidays with the mother, alternating first and second halves over the years. [The child] should spend Mother’s Day with the mother and Father’s Day with the father.
34If time and distance permits, [the child] should spend time with the mother on [the child]’s, the mother’s and the half sister’s birthdays. However, if time and distance do not permit, then a telephone call would be appropriate.
35[The child] should speak with the mother by telephone on the Sunday she is not in the mother’s care and once midweek in the off week. The mother should not need to write letters to [the child] with this level of contact between them and cards should be kept to special occasions only. The maternal grandmother should be discouraged from writing to [the child] as [she] will spend time with the grandmother whilst in the mother’s care.
36The father has been unable to secure his regular type of employment in the area he is now residing in. His employer, the Attorney General’s Department initially gave the father twelve months leave without pay which expired recently. The father has continually investigated the possibility of working in his past capacity in the [T] area without success to date. His employer has agreed to extend his leave without pay for one more year. If the father cannot secure work in his area of expertise in the [broader mid-North coast region], he seeks that [the child] be permitted to relocate with him to [the Richmond/Tweed] area to enable him to return to his previous employment in 2009.
37If the father is unable to secure employment with the Attorney General’s Department, or like employer, in the [broader mid-North coast region] area within the next twelve month period, then it is recommended that [the child] be permitted to relocate with the father to the [Richmond/Tweed] area for the sole purpose of the father returning to his place of employment.
38If this occurs, it is further recommended that [the child] spend one weekend of each term with the mother, delivered to and collected from [T] by the father. It is recommended that [the child] spend the entirety of the Term 1 and Term 3 school holidays and half the remaining holidays with the mother. In addition the father should make [the child] available to spend an additional weekend or part thereof each term with the mother in the [Richmond/Tweed] area if the mother travels to that area and gives the father one month’s notice in writing of her intention to travel.
39[The child] should communicate by telephone with the mother at least once each week and be at liberty to write and receive letters and cards, no more that one each week from the mother and maternal extended family combined.
40The mother should be at liberty to communicate with any school [the child] attends and arrange to receive reports and newsletters from that school and attend any special school event that she is able to considering the distance involved.
On 13 March 2008 a further report was requested from Ms X. The mother was seeking that the child spend time with her from Friday after school until start of school Monday, every second weekend and also for half school holidays and special occasions.
The following orders were made on 13 March 2008:
1The proceedings are adjourned to Friday, 23 May 2008 at 10am for a 2 hour hearing.
2The issue to be decided is the amount of time that [the child] should now spend with her mother.
3The father has permission to rely upon an affidavit by each of him and his partner and the mother has permission to rely upon an affidavit by each of the mother and her partners.
4The permission to rely on an affidavit is subject to the following conditions;
4.1the material in the affidavit must all be relevant to the issue;
4.2the affidavit must be filed and served by 3 April 2008.
5Ms [T], Family Consultant, is appointed under Section 65L of the Family Law Act until the hearing to supervise the compliance with the parenting orders and give either party such assistance as is reasonably requested in relation to compliance with and carrying out of the parenting orders.
6The court requests Ms [T] to also give an updated written or oral report at the hearing.
7By consent pending final hearing [the child] spend time with the mother as follows:
7.1in school terms other than the current term each second weekend from after school on Friday to 5pm Sunday, and each second weekend for the remainder of this term commencing Friday, 14 March 2008, the mother to collect [the child] from [TC] School and to return [the child] to the father at the [T] McDonalds at the conclusion of the time.
7.2from 9am on Friday 21 March 2008 until Saturday, 22 March 2008 at 5.30pm, the mother to collect [the child] from the [T] McDonalds and return her to [F] McDonald’s;
7.3from after school on 3 April 2008 to 7pm on 3 April 2008, the mother to collect [the child] from the [TC] School and to return [the child] to the father at McDonalds [F];
7.4from 9am 16 April 2008 to 6.30pm on 22 April 2008, the mother to collect [the child] from the father at [T] McDonalds and return her to the father at [F] McDonalds.
Since those orders the child has been spending half each school vacation and each second weekend in school terms with her mother. The father also agreed to her spending half of Mother’s Day with the mother if it was not a weekend she would otherwise be with her.
After discussions on 29 April 2008 when the child returned from school holiday time with her mother, the father was of the view that limiting the child’s time with the mother to school holiday periods may be in the child’s best interests. He acknowledged that this would be upsetting for the child and said he was loath to do it, but he said that the limited time may be the only way to relieve the child of the regular and constant pressure he perceived she was exposed to in the mother’s care.
Ms X’s second report was released on 2 May 2008. She said that the father remained unsure as to what he should seek in regard to the child’s best interests. He claimed that the child continued to be under much pressure from the mother and her family and because of this he was concerned whether fortnightly time with the mother was in the child’s best interests.
Ms X concluded her report as follows:
Evaluation.
47Unfortunately it would appear that over the last seventeen months of the supervision of these orders [the child] has not been able to shift from leading a “split” existence between the two families. Evidence of this is that she continues to refer to the father as “[C]” rather than “Dad” in the mother’s care, she remains unable to show her love and affection for the father in the mother’s care and continues to feel the need to be critical of the father and make allegations and accusations about him to the mother.
48It would appear that the mother continues to have no trust in or respect for the father and his parenting capacity as evidenced by her continuing to believe [the child]’s allegations and denigrations of the father without question.
49It is clear that the mother persists in holding out “false hope” for [the child] in regard to [the child] returning to the mother’s care. This is evidenced by [the child] confirming the mother has told her that at age twelve [the child] can choose to return to the mother’s care.
50It is concerning that each fortnight [the child] has one to three days of sadness and anger after returning to the father’s care. This is an immense stress for any child, particularly if it continues in the future. It appears that this is not going to abate with time as it has continued religiously over the last seventeen months.
Recommendations:
51If the court finds that [the child] is suffering unduly from emotional distress or psychological damage as a result of spending fortnightly time with the mother, then it is recommended that this time be limited to once each calendar month whilst ever [the child] lives within a two hour radius of [T] and the first half of each school holiday period if [the child] lives at a further distance. [The child] spending the first half of each holiday period with the mother will give her the opportunity during the second half to settle back into the father’s care in readiness for the new school term.
52If the court finds that [the child] is not suffering unduly from emotional distress or psychological damage as a result of spending fortnightly time with the mother, then it is recommended that [the child] spend each alternate weekend from Friday from school to Monday to school and half school holidays with the mother.
53It is further recommended that special occasions with the mother be limited to Mother’s Day, [the child]’s birthday and the Christmas period.
54It is recommended that whenever changeovers occur outside of [the child]’s school terms that the father and the step-father only attend the changeovers and that the travel is shared.
55It is respectfully recommended that if an order is made to limit [the child]’s time with the mother that an order also be made permitting the father to relocate away from the [TC] area, but within NSW, for the sole purpose of taking up permanent part-time or full-time employment.
56If the mother’s time with [the child] is limited, it is recommend that [the child] resume therapeutic counselling with her previous counsellor for a period of time as recommended by that counsellor and that a copy of this report be forwarded to that counsellor.
The hearing proceeded on 23 May 2008. The mother relied upon an affidavit by herself and one by her partner. The father had filed no affidavits and was unrepresented. He sought to have evidence admitted by him and his partner in accordance with written statements he produced in the court room. Upon objection by Counsel for the mother, the father was refused permission to rely on evidence by himself or his partner.
The hearing proceeded without evidence in the father’s case. The mother was cross-examined, but her partner was not. Judgment was reserved.
The Child
The child turns 10 in August. She has settled in her father’s care. She is also settled at the TC School. This is her second year at that school.
In the first Family Report which was written in December 2007, Ms X said:
21At interview [the child] presented as well nourished and well cared for. She appeared lively and active. She reported liking her school and her new friends and reported enjoying sleep-overs and other activities with the friends and extended family networks. She reported missing the mother and the half-sister but that she was managing. [The child] was observed to relate in a comfortable and spontaneously affectionate manner with the father and observed to enjoy a close relationship with the father’s partner.
22Similarly [the child] was observed to have an affectionate and close relationship with the mother and a close relationship with the step-father.
In her report of May 2008, Ms X said that the child told her that she wanted the Judge to know that she still wants to live with her mother. She asked why she could not spend afternoons with the mother if the father had to work in the future. She said she wanted to speak on the telephone to her mother on the off Sunday. She said she thought it was better to have the change-overs at the school. She also repeated her request to talk to the mother by telephone on the off Sunday and agreed that she probably did not need to send or receive letters from the mother or her family if she was having some form of contact weekly with the mother.
The child reported that she worries about her mother’s feelings being hurt. When asked if she were to tell her mother that she loved her father and enjoyed being with him, how she thought her mother would feel, she said, “Hurt”.
THE MOTHER’S CONDUCT & ATTITUDES SINCE THE 2007 ORDERS
In the Judgment of March 2007 there were findings that the mother and the maternal grandmother had been calling the child by her middle name (“…”) instead of her Christian name which is an Aboriginal name chosen by the parents and used exclusively as the child’s first name prior to the separation. There was also evidence that in May 2005 without notice to the father, the mother wrote to the child’s school, which she had been attending since the start of the 2004 school year, asking that they use the surname “Fields” for the child instead of “Johnson”.
Notwithstanding the adverse findings about this conduct of the mother, the mother and members of her household have since the orders of January 2007 continued to refer to the child by her middle name in their household.
In addition, despite criticisms of the mother in the Judgment for allowing/encouraging disrespect of the father in her household by the child and others by referring to the father by his Christian name, that process has continued.
There were extensive adverse findings in the Judgment about the mother’s emotional abuse of the child in terms of conversations the mother has where she permits the child to make negative statements about her father, and the mother does not reality test such allegations.
The mother has had the Judgment for more than a year at the time of this hearing but this process of emotional abuse was still continuing. Indeed she was adopting most of such statements to make complaints about the father. Some examples of the untrue or grossly exaggerated statements are:
·“He (the father) will get angry if I hug and kiss [Mr W].”
·“I’m not getting any help with my homework or with reading books.”
·“[The father] told me that you won’t love me after you have the baby. He said that you will forget about me.”
·“[The father] told me not to hug and kiss [Mr W].”
·“[The father] said [Mr W] has other girlfriends and the baby probably isn’t [Mr W]’s. [The father] also told me that you and [Mr W] won’t want to see me after the baby is born.”
·“I don’t want to show [the father] because I don’t think he’ll let me keep what’s in the bag.”
·“[The father] told me that he will get his belt out when I am sad and cry about you.”
·That her father did not give her enough to eat at home and at school, and that at times she had had to ask the school staff for food.
·That she was concerned that her father would not be at school to collect her at the end of school day or not be at home if she walked home as she sometimes does.
·That she does not like her step-mother or her 2 sons.
·That the father told her, “Don’t call the baby [Y] and don’t call [Mr W] ‘Dad’.”
·That she had “wet her pants”.
Ms X reported regarding the false negative statements about the father:
41[The child] was not tearful in the father’s care when discussing the same issues as were discussed when she was in the mother’s care. [The child] was again able to confirm that she tells lies to the mother or exaggerates things to criticize the father. [The child] said she did not know why she did this but that the mother believed her each time and “gives me a hug.”
42The father reports he is concerned that the situation that [the child] is placed in, in the mother’s care, that is feeling that she has to denigrate and make allegations about the father to the mother, worry about the mother’s feelings so she cannot be free to call him Dad in the mother’s presence or talk about her affection for him and the fact that [the child] can take up to two days each time to “bounce back” from spending time with the mother may mean that spending time so regularly is not in [the child]’s interest. However as soon as the father voices opinions about limiting the time for [the child] with the mother whether he remains living in [TC] or relocates to [the Richmond/Tweed region], he becomes concerned for [the child] in that she would miss the mother, her younger half sister and the maternal extended family and would need to change schools again.
43The father has sounded quite despairing at times in regard to his view that the mother will “never stop doing this to [the child], she just doesn’t seem to see how it hurts [the child]. I’d love to be able to say sure have [the child] for another weekend or whatever but I can’t do that when this is the effect on [the child].”
The mother does not accept or support the order for the child to reside with her father.
In her report of December 2007 Ms X reported:
19…. [the child] was told that the interviews on this day and resultant report was not to assess where she should live as this had already been decided by the Court, rather it was to assist the court in deciding how much time she should spend with the mother. [The child] then asked for “50/50” explaining that this would be two weeks with the mother and two weeks with the father. When asked who she has discussed this concept with, she said “no-body.” When asked where she had heard the term “50/50” she said she did not know.
20The mother became angry with this writer when informed of this discussion with [the child]. The mother stated it was unfair to tell [the child] that where she lived could not be amended at this stage as “it gives her no hope.”
Clearly the mother has not supported the Orders to the child. She has not persuaded the child that they are final, but has led her to have expectations of the orders being changed. On the balance of probabilities, despite her sworn denials, she has told the child that when the child is 12, she can decide to live with her mother.
In the second report, Ms X reported that the problem was continuing. She reported:
30The father reports his view is that pressure is brought to bear on [the child] when in the care of the mother to continue to want to live with the mother or be able to spend more time with her. The father claims just recently [the child] told her half sister [E] that “when I’m twelve I’ll be allowed to choose where I live and I’ll go back to Mum’s.” The father further alleges that the mother has told [the child] “only three more years and you can come back to live with me.” [The child] confirms the mother has told her that at twelve years of age [the child] can choose to return to the mother’s care but that the father has told [the child] when she’s sixteen they will talk about it again.
44When interviewed in the mother’s care [the child] wanted the judge to know that she still wanted to live with the mother. She also asked why she could not spend afternoons with the mother if the father had to work in the future. [The child] also wanted to know how old she needed to be to choose which parent to live with and when she was told by this writer eighteen years she became very tearful and said “I thought it was twelve.”
…
49It is clear that the mother persists in holding out “false hope” for [the child] in regard to [the child] returning to the mother’s care. This is evidenced by [the child] confirming the mother has told her that at age twelve [the child] can choose to return to the mother’s care.
The mother undermines the residence order, the father’s role as the child’s father and his relationship with her.
In the father’s home the child has in her room photographs of the mother, the maternal family and her half-sister Y displayed on her desk and the wall. But in the mother’s home she does not have any photograph of her father, her half sister E or any member of her paternal family.
There has been a serious problem about the mother’s lack of communications with the father at change-overs if they both attend. The child has reported that usually the father says “Hello” to the mother and to her partner. But only the partner responds and the mother refuses to speak to the father. That situation is occurring 16 months after the orders were made.
Ms X reported in the first 9 months after the orders she had to be regularly involved to negotiate agreements and “to constantly re-assure the mother and at times, her extended family, that [the child] was safe and well in her father’s care”. She said that this involvement decreased markedly after that.
In interactions with Ms X since the residence order was made, the mother has continued to raise a litany of complaints about the father which are generally without substance. That process is continuing.
When she delivered the child’s belongings in accordance with Order 5 of the final Orders, the mother had impregnated them with her usual perfume and the scent was so strong that it was necessary for the father to wash all of the child’s clothes from the bag.
At the first 2 supervised periods with the child, the mother, the maternal grandmother and step-father brought multiple gifts for the child including some from friends and friends of the family. It was only after Ms X advised the mother to limit the number of gifts to an appropriate number, that the mother did so.
When the child was to start the school year for 2008, the mother without notice to the father or consultation with him, completely kitted the child out for school. She bought her a lunch box, drink bottle, exercise books, school shoes, school bag, textas, stationery and school hat. Ms X was critical of this as being the mother “again inferring that the father was unable or less able than her to see to [the child]’s needs in returning to school”. When the father returned the school bag because he already had a school bag for the child the mother then criticised him for that to Ms X and in these proceedings.
While the supervised contact was still occurring the mother persisted in trying to arrange a face to face meeting with the principal of the child’s school at the school, despite order 23, and contrary to advice given by Ms X that she should speak to the principal by telephone only. The principal and Ms X later had discussions and agreed that the school should initially be “a safe haven” for the child where the parents would not come into contact with each other. The mother’s request to attend the school open day was denied.
But subsequently the father agreed to her attending the school on occasions when parents would normally attend. He also agreed to volunteer attendances, so long as they were no more than one per week.
Ms X reported in her first report:
23[The child] remains aware of the mother’s vulnerability in regard to [the child]’s relationship with her father. At interview [the child] reported she would not feel comfortable wearing an “I Love Dad” bracelet similar to the “I Love Mum” bracelet she had as “Mum’s feelings would be hurt and she would worry that I love Dad more than her.”
Ms X also reported:
28The quality of the mother’s relationship is improving over time. Initially the mother showed great difficulty in “letting go” the control of [the child]’s day to day life but appears now to have accepted that [the child] will remain living predominantly in the father’s care. The mother remains critical of the father and his ability to parent [the child] saying as recently as the interviews in October 2007 that the father needed to attend a Parenting Course. It would appear that the mother does not trust the father in the decisions he makes about [the child] and her environment. The mother has raised numerous concerns about who lives in the father’s house, whether [the child] was receiving adequate dental care and how much food [the child] is given to eat.
29The father provided documentation to this writer of [the child]’s attendance at the dentist and to her family doctor. The dentist is monitoring [the child]’s teeth as she may require braces or teeth extracted in the future. [The child] has only needed to use her Ventolin inhaler on one occasion over the last eleven months. This was following a long distance cross country run.
30It appears over the last two months that the mother’s attitude is relaxing a little and this may be a direct result of the agreed additional time with [the child]. The psychologist, who saw the mother for counselling as ordered, reported that the mother attended twelve sessions, appeared to work well in these sessions and appeared co-operative with the process. The counsellor could see no further gain in continuing to see the mother. It would appear that the mother has an understanding in the main as to what her attitude toward the father and his ability to parent should be but she still demonstrates no insight into the damage her attitudes and behaviours caused to [the child] and [the child]’s relationship with the father prior to [the child] changing residences. It would appear that the mother and particularly the maternal grandmother believe [the child] is living with the father rather than the mother in the main because of her Aboriginal heritage.
However, the mother’s affidavit sworn as recently as 3 April 2008, contains a proliferation of complaints about the father’s conduct and statements. Most of that material is irrelevant to the issue before the Court of how much time the child should spend with her mother. The complaints are generally unsubstantiated.
The mother has persisted in making demands on the father for more and more time with the child. On many occasions he has agreed to additional time, but the only occasion when the mother has expressed any appreciation or thanks to him was an occasion when she did so only after she was advised by Ms X to do so.
When the father agreed to extra time including 2 overnights, for the child to participate in the wedding of the mother’s brother, the mother complained in the affidavit that she wanted an extra night and the father has refused. She also complained that he had requested that any fitting sessions for the bridesmaid dress for the child occur during periods when the child was otherwise going to be with her mother.
On 6 February 2007 the mother contacted the Principal of the child’s school to obtain confirmation that the child had been enrolled.
Even before the mother had attended counselling pursuant to the Orders, by 15 May 2007 she had sent 5 letters to the child.
The father has observed the mother and her partner driving past his home on several occasions prior to 27 May 2007. He made a request to them to stop stalking him.
On 17 February 2008 the mother had discussions with the child in which the child requested to stay an additional night. The mother did not discuss this with the father. Instead she permitted the child to use the mother’s telephone to text the father requesting that she be able to stay another night. This undermined the father’s authority because, as the mother should have expected, when he declined the request, the child was disappointed. The mother did not support the father or his decision. She did not then attempt to persuade the child to accept the decision. Quite the contrary. She then facilitated the child telephoning her father to plead with him. The mother’s conduct was disrespectful of the father and undermining of him and his role and decisions as the child’s father and residence parent.
By February 2008 the mother had been attending the child’s school as a volunteer in the child’s class reading. She enrolled the child in ballet classes on Saturdays commencing 1 March 2008. She did this without consulting the father and knowing that the child would be unable to attend on every second Saturday unless the father also involved her. She then subsequently criticised the father in her affidavit, for not arranging for the child’s attendance at classes when she is with him: “Unfortunately, her father would not make arrangements for the child to attend classes. Due to the fact that she is not attending regularly, this will mean that she won’t be able to undertake any concerts or competitions.” The father has enrolled the child for the dancing classes when she is in his care.
The mother also arranged for the child to have flute lessons when in her care. She did this without consulting the father.
In addition the mother has maintained contact with children who attended T School with the child prior to the end of the 2006 school year. Through this she has facilitated the child attending sleep-over parties with such children during periods the child was to spend time with the mother. She has encouraged the families to invite the child to birthday parties for children she knew at the T school. Four such invitations have been sent and the mother has informed the child of them. One of the invitations was sent to the child at the father’s home and the mother received the others. Fortunately, the invitations were for parties on dates when the child would be staying with the mother.
Despite the father’s generosity in the circumstances in extending the time the mother spends with the child since these orders were made, the mother swore in her affidavit in April 2008: “I am apprehensive in respect to being able to arrange future contact visits between myself and [the father], in the event that there are special functions that [the child] might wish to attend. The reason for my apprehension is that whilst we have been able to agree on various arrangements for changes in collection and delivery times, we have been unable to reach agreement in respect to arranging additional time for [the child] to spend with me, except when we have had the assistance of [Ms X]. I feel that it has only been through [Ms X]’s insistence and persistence that the contact visits have taken place, and been able to work reasonably effectively.
Ms X has a different impression of what has happened in that regard. She said in her second report that it appeared to her that from August to December 2007: “The mother consistently asked for more and more agreements from the father and when he agreed she would ask for more and then become critical of him if he did not accede to her wishes. It appeared the mother had difficulty feeling appreciative of the father’s agreement to additional time for [the child] outside of the Orders.”
The mother is hostile to the father. She demonstrates disrespect for him as a person and as the child’s father. At changeovers she does not extend to him the courtesy one would give to a stranger one is meeting for the first time. Her criticisms of him in her affidavit and in interviews with Ms X and otherwise are quite obsessive. This is particularly demonstrated in her affidavit where the criticisms of the father are largely irrelevant to the issue before the Court.
In oral evidence in chief the mother gave some evidence suggesting greater insight and better attitudes than the other evidence indicated. She said she does not want to challenge the orders for the child to live with the father. She said that the child is well cared for by her father in a physical sense and is “doing OK at School”. She said she hadn’t made complaints about the father to anyone else than Ms X. (She overlooked her affidavit.) She said she accepts the child has told her untruths about the father. She said that she will accept an order that she is not to request the father for any time with the child additional to that ordered.
She conceded in cross examination that it is not in the child’s interests to “see herself as only marking time with her father” and the child needs to feel comfortable about living with him and feel some permanence about it. She conceded she did not believe the father would not feed the child properly.
There were very adverse findings about the mother’s credit in the judgment of March 2007. When she was cross-examined in this hearing she was often evasive and did not present well at all. Her evidence at the hearing suggesting greater insight and better attitudes was inconsistent with her behaviour prior to the hearing, her affidavit sworn only the previous month and the evidence in the reports of Ms X. The court could not consider such evidence at the hearing as reliable. It was more likely a desperate pretence.
PROPOSED ORDERS
The Independent Lawyer for the child proposes that the Court adopt the recommendations of Ms X. In her submissions she said that she accepts that the child is suffering emotional distress and feels that she is living 2 lives. She acknowledged the child’s wish to spend more time with her mother and also said that she had concerns about the effect on the child if she sees her mother only one weekend per month. She said that that is a difficulty she has because she does not know which of each second weekend or one weekend per month would be more beneficial to the child.
She said that she supports restraining orders restraining the mother from:
a)discussing with the child the possibility or likelihood of the child living with the mother;
b)questioning the child about or discussing with the child, the father or events in his home;
c)enrolling the child in any extra-curricular activities without consulting the father; and,
d)permitting the child to attend counselling with any person.
She also proposes that if the time that the child spends with the mother is less than the present arrangement, then there should be provision for the child to have further counselling with the same counsellor she saw pursuant to the orders of January 2007.
Neither the father nor Counsel for the mother opposed the injunctions and counselling order proposed by the Independent Lawyer for the child.
When I raised with parties and the child’s lawyer the issue of whether the supervision order should be continued, the father was of the view that he did not oppose that, but that he did not consider there was a need. The child’s lawyer said that there would be some advantages, but at some stage the parties would have to negotiate and she would want the period of the extension limited to 6 months. Counsel for the mother agreed with the father’s submission but said that he did not have a strong view either way.
The mother sought the following orders:
1That in additional to the Orders made by this Honourable Court on 25 January 2007, the following further orders be made:
1.1That the child, […] born […] August 1998, spend time with the mother as follows:
(r)Each alternate weekend commencing 1 February 2008, from Friday after school until Monday, or from Thursday after school to Tuesday, if Monday is a public holiday.
(s)The first half of each school holiday period in even numbered years, from after school on Friday, until 5:00 pm on the second Sunday of the school holiday period, with the exception of Christmas school holidays.
(t)From after school on the last day of the fourth term of the school term, until 3:00 pm Christmas Eve.
(e)From 3:00 pm Christmas Day until 3:00 pm New Year's Day.
(f)For the last seven days of the Christmas school holiday period, the mother to return the child to school on the first day of the school term.
(g)In odd numbered years, from 3:00 pm Christmas Eve to 3:00 pm Christmas Day and from 3:00 pm New Year's Day to 3:00 pm on 20 January each year.
(h)On Mother's Day, in the event that the mother is not spending time with the child on that weekend.
(i)That the mother's time with the child be suspended should the time that she spends with [the child] fall on Father's Day.
(j)From 9:00 am to 5:00 pm on 3 April, 17 August and 20 August, should those days fall on weekends. Should the days not fall on weekends, then from after school until 7:00 pm.
(k)That time with the child on weekends be implemented by the mother both collecting and delivering [the child] from and to her school at the beginning and conclusion of the time.
(l)That time with [the child] be implemented in school holiday periods by the mother collecting [the child] from her school, if the Orders so specify, and returning her to the father at McDonalds Family Restaurant in [T] at the time specified, or by the mother collecting [the child] from McDonalds Family Restaurant at [F], and delivering her to the father at McDonalds Family Restaurant at [T] during school holiday periods where the mother is not collecting the child after school.
(m)Every time that the time spent with the mother does not commence after school, then the mother is to collect the child from McDonalds Family Restaurant at [F], and return the child to the father at McDonalds Family Restaurant at [T].
(n)That the father ensure that the child is available to receive a telephone call from the mother on a landline, such phone number to be communicated by the father to the mother, within seven days of these Orders, or if the child is not available to speak to the mother at the landline, the father is to contact the mother and advise her of the phone number where [the child] will be available to speak to her on Sunday, such contact time to commence at 5:00 pm on the Sunday when the child is not in the mother's care.
(o)The father to ensure that [the child] is also available to speak to the mother by telephone on a Wednesday evening, prior to the mother's weekend time with the child, such time to commence at 5:00 pm on the Wednesday.
(p)That the father ensure that the child is at liberty to write to the mother, and receive letters and cards from the mother and her maternal extended family, however, no more than one each week.
(r)That the mother be at liberty to communicate with any school that [the child] attends, and to arrange and receive reports and newsletters from that school, and attend any special school event that she is able to.
(s)That the mother be at liberty to attend at [the child]’s school on a voluntary basis, once a week, to any functions that parents may be invited to or to attend school canteen duties.
1.2That should the child request that she require further counselling that the father ensure that the child is taken to an appropriate counsellor, as per the recommendation of the Family Court.
The father provided a list of orders that he proposed:
1.Additional to the orders made by this honourable court on the 25th of January 2007 I request that the following orders be made:
1.1.That [the child] born […] of August 1998 reside with her father and spend time with her mother as follows:
(a)Monthly weekend contact commencing 23rd May 2008 from Friday after school until 5pm Sunday.
(b)The first half of each school holidays on Friday after school until 9 am on the second Friday of the school holidays.
(c)At the end of the fourth term from 3 pm Christmas Day until 3pm New Years Day.
(d)Mother to have [the child] for seven days for the last week of the Christmas holidays ending on the Sunday before school returns at 5pm.
(e)That the Mother’s time with the child be suspended if it falls on Fathers Day at 9 am
(f)On Mothers Day that the child spend time with her mother from 9am till 5pm
(g)The mother can have further contact with [the child] on these days. From 1 pm till 5pm on the 3rd of April, 17th of August and 20th of August should those days fall on a weekend, if a school day from 3.30pm till 6.30. If the 17th of August falls on the mothers contact weekend for the father to have contact from 1 pm till 5pm.
(h)For the father to also have contact on the following days if they fall on the mothers contact weekend, 15th of November, 5th of January, 13th of November, 22nd of December from 1pm till 5pm.
(i)That the time with the child for weekend contact with her mother begin from collecting [the child] from School and ending at [F] McDonalds.
(j)If the time of contact does not begin after school for the mother to collect [the child] from [F] McDonalds and return to [F] McDonalds at the time specified.
(k)That no phone contact is necessary when extra contact has already been implemented, by the mother volunteering at the school on a weekly basis.
(l)No letters or cards to be sent to [the child] except on special occasions such as birthdays or Christmas.
(m)That the mother can attend [the child]’s School no more than once a week, whether that is on a voluntary basis or to any special event.
(n)Moving area if required for work reason.
RELEVANT LAW
76. The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
77. Subsection 60B(2) provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
78. Subsection 60B(3) provides:
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
79. Subsection 60CC provides:
Determining child’s best interests:
(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
(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).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
SUBSECTION 60CC(3) FINDINGS
80. The findings under subsection 60CC(3) are as follows:
a) Expressed wishes of the child
81. The child still wishes to live with her mother and otherwise to spend more time with the mother.
82. The child is nearly 10 years of age. Clearly part of her motivation for these wishes is her sense of responsibility for her mother’s welfare and her knowledge of her mother’s wishes. The child’s wishes, because of her young age and immaturity, do not reflect a careful consideration of short and long term implication of living with her mother or spending more time with her mother.
b) The child’s relationships
83. The child’s relationship with her father is close, positive and enjoyable.
84. Her relationship with her mother is still close but is still negative in terms of their enmeshment and the mother’s hostility to the father, her undermining of him, her undermining of his roles as the child’s father and residence parent and per practice of encouraging the child to make negative statements about her father.
85. The mother’s behaviour continues to cause the child considerable stress. It involves reverse parenting. She perceives her mother as unable to accept that the child loves her father and enjoys her time with him. She perceives her mother would be very upset if the child told her those things. The child still perceives herself as responsible for her mother’s happiness and in that regard demonstrates loyalty to her mother by telling her lies and exaggerations about her father.
86. The child is so concerned about her mother’s emotional welfare and wish to have the child live with her, that the child is distressed each time she leaves her and has to return to her father and this upset often lasts for more than a day.
c) Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
87. Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
88. The father’s willingness and ability in regard to these matters are adequate, except that he has underestimated the danger of the mother continuing emotional abuse of the child during the child’s time with her. The mother does not recognise the importance to the child of her relationship with her father and of his role as her residence parent. Her willingness and ability to support and facilitate each of those are both inadequate. She is likely instead to act to undermine and frustrate that relationship and role.
d) Likely effect of any changes including any separation
89. The child is likely to be disappointed and unhappy in the short term if her time with her mother is reduced. She is likely, however, to benefit from such a change because of the reduction in opportunities for enmeshment with her mother and in opportunities for the mother to undermine the child’s relationship with her father and his roles in her life.
e) Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis
90. A reduction of the child’s time with the mother to several days in each school holiday plus every fourth weekend in school terms and one telephone communication in other weekends will reduce the time the child spends with her mother and will reduce the time and occasions when she can maintain personal relations and direct contact with the mother. But such a change is likely to be beneficial to the child for reasons already stated.
f) Capacity of each parent and any other person to provide for the child’s needs
91. The father’s capacity is adequate. The mother’s parenting capacity is inadequate because she is incapable of properly supporting and promoting the child’s relationships with her father and his role in her life.
g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child
92. The mother has a longstanding history of frustrating the child’s time and relationship, with her father. She has actively undermined those and the father’s roles in the child’s life. She is likely to continue that when she spends time with the child.
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
93. Reducing the time the child spends with the mother will involve her spending more time with her father and paternal family. It will better facilitate the child having support of Aboriginal people to assist her to cope with racism.
Attitude to the child and the responsibilities of parenthood
94. Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
95. The mother does not recognise her responsibility to support and facilitate the child’s time and relationship with her father. She does not recognise that much of her behaviour is abusive of the child, including:
· Her enmeshment with the child;
· Her hostility to the father;
· Her exposure of the child to her negative attitudes to the father;
· Facilitating the child calling her father by his Christian name;
· Facilitating the child making negative statements about the father;
· Calling the child by her middle name instead of by her first name.
· Undermining the father in his roles as the child’s father and residence parent;
· Undermining the Court’s Orders for the child to live with her father; and
· Demonstrating in the child’s presence disrespect for the child’s father.
l) Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child
96. The mother’s behaviour since January 2007 demonstrates that each occasion the child spends time with her is likely to be used by the mother to further her efforts to have the child live with her and undermine the Court Orders of January 2007, the child’s relationship with the father and his roles as her father and residence parent. Such behaviour will cause further stress and unhappiness for the child and the father and increase the likelihood of further proceedings.
97. A reduction in the time the child spends with her mother and an order restraining the mother from requesting, and the father from permitting, any additional time is preferable in the sense that such changes will reduce the likelihood of further proceedings.
m) Any other fact or circumstance the Court thinks is relevant
98. It is contrary to the child’s interests that the mother visit her school. The child in her mother’s presence is unable to be herself. She is unable to express her love for her father and his family and her enjoyment of time with them. With her mother she is exposed to the mother’s negativity about the father. School should not be a place where the child has such pressures.
99. The mother should not be visiting the school and having the opportunity to undermine the father there to the child or others. School should be a sanctuary for the child where she has no such pressures.
It is not in the child’s interests also to have time with her mother for birthdays, Mother’s Days and other special days. Those can be celebrated on the nearest other occasion the child has time with the mother.
If there is a need to limit the time the child spends with her mother there should also be an order restraining the mother from requesting, and the father from agreeing to, additional time, as since the January 2007 orders he has agreed to additional time, when it has not been in the child’s interests to do so. He in these proceedings has proposed the child spend more time with her mother than is in the child’s interests.
PRIMARY CONSIDERATIONS
The findings as to primary considerations under Subsection 60CC(2) are:
a) The benefit to the child of having a meaningful relationship with both of the child’s parents
If the time the child spends with the mother is limited to several days in each school holiday and each fourth weekend in school terms there will be less time spent by the child with the mother and less time to have a meaningful relationship with the mother. But for reasons already discussed, there will be a net benefit to the child.
b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The child needs to be protected from psychological harm from behaviour of the mother that is emotionally abusive of her.
OTHER CONCLUSIONS
The child’s time with her mother should be limited in the child’s interests to each 4th weekend in school terms and two periods of 4 days in each summer school vacation and one period of 4 days in each other school vacation.
For the same reason, her telephone communications with her mother should be limited to once on any Sunday when she does not spend time with her mother, and the occasions that the mother sends her cards, letters or gifts should be limited to the child’s birthday and Christmas.
The changeovers for the time the child spends with the mother should be implemented by the father (or his nominee known to the child) and the mother’s partner (or some other person approved by the father) at the McDonalds Family Restaurant at [F] and the mother should be restrained from attending.
It is in the child’s best interests that the mother be restrained as proposed by the child’s lawyer.
The father should be ordered to facilitate further counselling for the child to assist her to overcome her disappointment with the reduction in time with her mother.
It is also in the child’s interests that the appointment of Ms X to supervise and assist the parents’ in compliance with the Court’s orders for a further 6 months.
It would be best for the child if I meet with her and briefly explain the orders and reasons before the Judgment is released to the parties.
___________________________
The Hon Justice Graham Mullane
Date: 2 July 2008
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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