K and K
[2004] FMCAfam 634
•19 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| K & K | [2004] FMCAfam 634 |
| FAMILY LAW – Children – residence – contact – best interests of children – children’s wishes – two boys aged 7 and 5 at time of hearing – change of residence. |
Family Law Act 1975 (Cth), ss.60B; 65E; 68F
Re David (1997) FLC 92-776
Cooper (1977) FLC 90-234
| Applicant: | A R K |
| Respondent: | G K |
| File No: | PAM 3476 of 2002 |
| Delivered on: | 19 October 2004 |
| Delivered at: | Sydney |
| Hearing dates: | 17, 18 & 19 March 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms O’Connor |
| Solicitors for the Applicant: | Chahoud Kalouche & Associates |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | D.M Roberts & Co |
| Counsel for the Children’s Representative: | Mr Schroder |
| Children’s representative: | Smythe & Mallam |
ORDERS
THAT all prior orders in respect of the children K N K born
8 September 1997 and M K K born 21 November 1998 are discharged.That the children K and M are to live with the Applicant mother.
That the parties are to do all things as are required to attend upon the Keeping Contact Program at 27-29 Hassall Street Parramatta and follow all reasonable directions of the convenor of that program.
That commencing three (3) months from the change of residence of the children from the father to the mother the Respondent father is to have contact with the children as follows:
(a)During school term time each alternate weekend from after school on Friday until 6.00 p.m. on Sunday and each other Wednesday after from school until 7.30 p.m. with the father to collect the children after school and on the Wednesdays to return the children to the mother’s residence;
(b)For one half of each of the Autumn, Winter and Spring school holidays being the first half in 2005 and each alternate year thereafter and the second half in 2006 and each alternate year thereafter;
(c)For three (3) weeks from 2 JAary in each year;
(d)From 6.00 p.m. on the day before Father’s Day until 6.00 p.m. on Father’s Day in each year if that day does not fall on a contact weekend;
(e)From 12 noon on Christmas Day until 6.00 pm. on Boxing Day in 2004 and each alternate year thereafter and from 6.00 p.m. on Christmas Eve until 12 noon on Christmas Day in 2005 and each alternate year thereafter.
That the father’s contact is to be suspended and the children are to be with the mother as follows:
(a)On Mother’s Day in each year from 6.00 p.m. on the day prior to Mother's Day until 6.00 pm. on Mother’s Day;
(b)From 6.00 p.m. on Christmas Eve until 12 noon on Christmas Day in 2004 and each alternate year thereafter and from 12 noon on Christmas Day until 6.00 p.m. on Boxing Day in 2005 and each alternate year thereafter.
That changeover for contact except where specified in Order 4(a) is to take place at the McDonald’s Family Restaurant in O Road V.
That the Respondent father is restrained from denigrating or abusing the mother or using offensive or insulting language to her in the presence or hearing of the children.
That the father is restrained from bringing any other adult with him to contact changeover.
That the parties are restrained from physically punishing the children or permitting any other person to do so.
For the purposes of these Orders:
(a)school holidays are deemed to commence on the Saturday immediately after the school term concludes;
(b)school holidays are deemed to conclude on the day immediately before the first day the children are required to attend school at the commencement of each school term;
(c)a day designated by the school attended by each of the said children as a “pupil free day” is not a day when the children are required to attend school;
(d)contact for the first half of the Spring, Autumn and Winter school holiday periods will commence at 9.00 a.m. on the Saturday immediately after school term concludes and will conclude at 6.00 p.m. on the middle Saturday of the school holiday period; and
(e)Contact for the second half of the Spring, Autumn and Winter school holiday periods will commence at 6.00 p.m. on the middle Saturday of the school holiday period and will conclude at 6.00 p.m. on the day immediately before the children are required to attend school at the commencement of the next school term.
All other applications are dismissed and the application is removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3476 of 2002
| A R K |
Applicant
And
| G K |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of two boys, K N K, born
8th August 1997 and M K K, born 21st November 1998, that they should live with her and that the father should have contact with the children each alternate weekend and for half of the school holidays. The mother filed her application in the Family Court of Australia at Sydney on 18th April 2002. The proceedings were transferred to the Federal Magistrates Court. The mother filed an amended application in this Court on 3rd September 2002.
In his response, filed on 30th September 2002, the father sought orders that the children should continue to live with him and that the mother should have from 11.00 a.m. to 5.00 p.m. on alternate Sundays. The father also sought an order in these terms:
“That the Applicant’s contact in 4[1] shall be suspended for one half of each NSW school holiday period.”
[1] Referring to the contact on alternate Sundays
The father did not seek an order that the mother should have any overnight contact at all, and certainly not any contact in the school holidays. What he sought was an order that the mother should not [emphasis added] have contact for half of the school holidays.
On 8th May 2003 I made orders until further order that the mother should have contact with the boys each alternate weekend from 9.30 a.m. on the Saturday until 5.30 p.m. on the Sunday. I also made an order under the provisions of s. 68L of the Family Law Act that the children should be legally represented.
On 2nd June 2003, upon the application of the children’s representative, Ms Kyle, I ordered the preparation of a Family Report under the provisions of s. 62G of the Act.
At the hearing, the mother relied on her affidavits sworn on 11th April 2002, 27th March, 15th April and 8th October 2003. She also relied on an affidavit by G K sworn 11th April 2003.
For his part, the father relied on his affidavits sworn on 30th September 2002, 15th April and 22nd September 2003. He also relied on the following affidavits:
a)S K, sworn on 22nd September 2003;
b)S G, sworn on 27th May 2003; and
c)S K, sworn on an unspecified day in September 2003.
Mr Theo George, a Court Counsellor at the Parramatta Registry of the Court, prepared the Family Report. The Report was released to the parties and I had regard to its contents.
Background
The parties were both born in Fiji. The father was born on 11th May 1965 and the mother was born on 19th August 1973. They were married on 20th December 1994. They arrived in Australia in 1996 and have lived in Australia since that date.
The child K was born on 8th September 1997 and the younger child, M, was born on 21st November 1998. The father and mother separated on 12th March 2000, when the mother says that the father assaulted her. She says that he would not let her take the children with her.
The mother obtained an Apprehended Violence Order against the father at the Local Court of New South Wales at B on 7th April 2000. That order remained in force for twelve months.
The mother commenced having contact with the children but says that the father cancelled the arrangement in October 2000, as a result of his having entered into a relationship with another woman. The mother herself entered into a new relationship the following year, with Mr G K. The father says that the mother did not seek to exercise contact with the boys between 16th July 2000 early in 2002. He says that on 16th July, when he had taken the older child K to see the mother at her home, he was wounded in the hand. The father says the wounding took place during an altercation between two men called A and M. He says that the police charged the man M with malicious wounding.
The mother claims that on 21st February 2002 she and the father entered into an agreement that she would have contact with the boys on one weekend a month for two months, and then for alternate weekends. She says that the father withdrew from that agreement a week later. She then commenced proceedings in the Family Court, seeking interim orders for defined contact and final orders for residence.
On 30th September 2002, the parties entered into interim orders by consent that the mother would have contact with the two boys from 10.00 a.m. until 5.00 p.m. each alternate Saturday, and that contact changeover would be at the L Railway station.
It is the mother’s case that she had difficulty in obtaining the contact provided by the consent orders. On 8th May 2003 I varied the interim consent orders and made the interim orders referred to in paragraph 4, which provided for overnight contact on alternate weekends. On 15th October 2003 the mother filed an Application to deal with the father for contravention of the contact orders. In the application she claimed that the father breached the orders in various ways on 10 occasions between 10th May and 13th September 2003. In particular, she claimed that the father denied her contact completely between 5th July and 13th September 2003.
On 16th October 2003, a further interim hearing took place before Barnes FM. On that date, Her Honour varied the interim contact orders again, so as to provide that the mother would have contact with the boys from Friday afternoons on alternate weekends, and also for the second half of the school holidays. The Court also ordered that contact changeover should take place at the Central West Contact Centre.
The final hearing of the mother’s application took place on 17th, 18th and 19th March 2004.
Evidence
At the outset, counsel for the Children’s Representative, Mr Schroder, submitted that the evidence would show that the father was undermining the contact regime. It was the view of the Children’s Representative that if the mother were prepared to persevere with her application for residence, then the Children’s Representative would support a change of residence. He said that the contact orders were not complied with in any real form at all. The father kept saying that the children did not want to go with the mother. He appeared to be undermining the children’s relationship with the mother.
The mother’s counsel, Ms O’Connor, said that it was the mother’s case that the father was frustrating contact. The mother wished to persist with her application for residence.
Counsel for the father, Ms Snelling, agreed with the outline given but pointed that there was a significant status quo. It was the father’s case that the children had not had any opportunity to build up a relationship with the mother at all.
The mother gave oral evidence and was subjected to cross-examination. Mr G K, the mother’s new husband, also gave oral evidence and was subject to cross-examination.
The father gave evidence in his case, and turned out to be the only witness. The affidavit of S K was withdrawn. S K and S G were not required for cross-examination.
The Court Counsellor who prepared the Family Report, Mr Theo George, was cross-examined by all three counsel on the afternoon of the second day of the hearing. Submissions by counsel occupied the third hearing day.
The mother gave evidence of her efforts to exercise contact with the children since separation. She gave evidence in chief of her view that the children could have contact with their father every weekend or alternate weekend if he preferred. Her view about alternate weekend contact was that the father could collect the children after school on the Friday and return them to school on the Monday morning. She would allow mid week contact in the off week.
For the children’s education, the mother said that the older boy, K, would go to W Park Primary School, which is only about five minutes’ walk from her home. The younger boy, M, would go to the pre-school across the road from her home.
In cross-examination by Ms Snelling of counsel, the mother denied that she had left the children. She said:
“I didn’t leave the children. He wouldn’t let me take the children. The police said ‘You will have to go to Family Court’.”
The mother went to say that she had some contact after separation. The father left the children with her two or three times a week, whenever he wanted. The contact stopped in October 2001 (sic), when the husband got a girlfriend. He said to her “They (the children) don’t need you any more because they have got a new mother.”
The mother told the court that she had applied for legal aid, as she wanted to go on seeing the children. She filed her application in
April 2002 in the Family Court. She said that she could not go to the father’s place because he had said to her “If you come to the house I will call the police”.
She denied that anyone had been stabbed at her home, as the father had alleged.
The mother told how contact continued by the father bringing the children to her home unit. When asked about the contact at the Central West Contact Centre, she said it had only happened twice. The mother described how the father would ring and say that the children did not want to go on contact. She denied that she had not gone to the contact centre as arranged, and said “It’s really hard being there (at the contact centre) and I can’t see my children”.
In cross examination by Mr Schroder, for the Children’s Representative, the mother said that she and Mr K rent a two bedroom house in L. The children have a bedroom at her house. When they are there for contact, the mother reads them stories before they go to bed. She said that the children call Mr K “Uncle”.
The mother went on to say that she was not currently employer, Mr K is a process worker by occupation. The mother said that she would look for part time work, but she wanted to spend time with her children. She told the court that the father had not told her what school K is attending.
The mother’s new husband, G K, gave evidence. He said that he was employed on a casual basis as a process worker. He denied threatening to kill the father. He also denied ever hitting the children.
In cross examination by Ms Snelling of counsel, Mr K said that he lived in the same household as the mother. He had read the Family Report. He has no children of his own. He said that he had not been married before.
The Respondent gave evidence. He said that he was a Loss Prevention Officer by occupation. He told the court that K attends primary school at B and M goes to kindergarten at B.
In cross-examination by Ms O’Connor of counsel, for the mother, the father said that he lived with the children. He has a fiancee, but she lives in Queensland. His mother and father are staying with him for a year. They plan to return home in April. When they go, he will take leave from his job to look after the children.
He said that the mother never asked him what school the children attended and he never saw the need to tell her. He said that the children had not gone to contact on occasions because they had flu, caused by “neglect” on the mother’s part.
The father agreed that contact was for the welfare of the children. He told the court that the mother has “love, motherly love, to offer the children.” He went on to say that “The children love her, maybe, but I don’t know why they don’t want to go”. I found this answer to be disingenuous.
The father said that there was never a day when he missed out on the children’s lives, but he conceded that he had sent K to Fiji for two and a half months. He denied that he had said to the children that their mother does not love them. He also denied saying that he would not force the children to go on contact with their mother. He admitted telling the court counsellor that the children should choose whether they had contact with their mother.
The father’s cross-examination extended into the afternoon of the second day of the hearing. He was 25 minutes late returning from the lunch break, to the surprise and embarrassment of his counsel. He explained in cross-examination by Mr Schroder that someone had to pick up the children from school, and he was delayed by traffic and parking problems.
The father admitted that at the interview for the Family Report on 10th September 2003 he had shouted at the court counsellor that he was “sick of her (the mother’s) lies” and she could have the residence of the children. He explained this outburst by saying, “I was tense. I had been going through all this for 4 years, 5 years.”
The Family Report
Mr Theo George, a Court Counsellor at the Parramatta Registry, prepared the Family Report. He completed his report on 26th September 2003. I found the Family Report to be very helpful.
Mr George observed that the children were initially off hand and nonchalant with their mother, but:
“Suddenly, K burst into endless conversation with her. He told her that he had recently celebrated his birthday and listed some of his presents.”[2]
[2] Family Report, paragraph 12.
Mr George described the incident referred to in paragraph 41 above:
“When I returned M to the reception area, he ran to his father to show him the craft and a sketch of Pluto the Pup that I had drawn. While the boy was running to his father, Mr K rose from his seat, ignored M, approached me, and angrily demanded to meet with me. He then loudly proclaimed that he was ‘sick of’ Ms K’s lies, that ‘from now on’ she can have residence, and that he would cease to see the children.
While Mr K waited in the reception area, I returned to Ms K and asked her what would happen if the children came into her residential care. She said that although Mr K was important to the children, ‘I’d look after them very well’. She also offered contact of every weekend as well as telephonic contact.
I then returned to the reception area, where I found a weeping M sitting on his father’s lap and clutching the man. Mr K loudly announced that M had to go [ie. reside] with his mother and that Mr K could no longer tolerate Ms K’s lies. When I asked Mr K if he was transferring residence of the children to their mother, he said that he was. I then invited him to meet with Ms K in my presence. Mr K then insisted that the children be present at such a meeting so that I could witness their distress. I refused to participate in such theatrics.”[3]
[3] Family Report, pages 14 and 15
Needless to say, this incident shows the father in a very bad light, whilst the mother appears to have behaved in a calm and sensible way. Mr George was subjected to extensive cross-examination and his account of this incident was not shaken at all. I accept his evidence unreservedly on this point.
Mr George described the father’s behaviour as “manipulation” and said that the father wo0uld not accept his word that the children were very relaxed in their mother’s company. He doubted that the father would promote the mother to the children.
By comparison, Mr George described the mother as very calm. He referred to the way she sang to the children, both in the Report and in his oral evidence.
The counsellor felt that the father would have difficulty disciplining himself to stop undermining the mother. I doubted that a change of residential care would create trauma for the children. In any event, he believed that the mother would be able to cope with any problems in that regard.
The Family Report dealt with the situation where the mother was seeking contact with the children, not residence per se. Mr George’s comments in the report strongly supported the mother’s original case for a considerable amount more contact with the children than she had been able to exercise over the years. He said:
“The observations of the children with their mother show that they want her attention and affection. However, Mr K’s behaviour with the children cause(s) them to be insecurely dependant upon him; they know that he loathes their mother and thus they are unable to display to him their need for her, possibly because they fear that he may reject them.
I have no doubt that Mr K wants the best for his sons. However, in the midst of his theatrical displays of his loathing for her, he may be unaware of the emotional plight to which he subjects K and M. He would benefit his sons if he and Ms K facilitated the contact that she seeks. More importantly for the children, though, is their need to perceive that their mother is a worthy person regardless of their father’s perception of her. Thus, Mr K would benefit his sons if he ceases to degrade her and simultaneously ceases to enmesh these defenceless boys in his hatred for her.”[4]
[4] Family Report pages 15 and 16.
The Family Report had been prepared in the belief that the mother was seeking orders for contact, but the hearing proceeded on the basis that the mother was in fact seeking residence. For that reason, counsel cross-examined Mr George at some length on the impact on the children of a change of residence to the mother. I took detailed notes of Mr George’s oral evidence, and, so far as possible, I quote from his evidence verbatim.
Mr George’s evidence was as follows:
“It could benefit the kids to have a period of ‘bedding down’. K needs to be reassured that he will not have to pay a price for his mother’s attention. He was the one who could not get enough of her when she was giving attention to M. She needs to reassure this boy that there is no punishment for loving and being with his mother.”
Mr George said in his cross-examination by Ms O’Connor of counsel:
“K needs a break from this onslaught (ie of criticism of his mother by his father). His mother is very important to him. The father’s fury was so powerful it may suggest that he was aware of her importance to the children. I was really wondering why she wasn’t pursuing residence.”
He went on to describe the father’s behaviour towards the children as “treating them like emotional yoyos”.
In cross-examination by Ms Snelling of counsel, Mr George said:
“Mr K kept referring back to his former wife…The major part of the children’s lives has been in the care of the father. These kids do have a warm relationship with the mother, which they want to maintain. Mr K has traumatised K.”
Ms Snelling asked him if a fair part of K’s trauma stems from his sense of abandonment. Mr George replied:
“K would be more secure in the care of his mother. She was very patient with them (the boys). Mr K showed no patience with them. Mr K virtually rejected the children in front of them.”
When Ms Snelling asked him to comment on the fact that if residence was awarded to the mother, the children would have to change schools, Mr George said:
“Most kids adapt quite readily, as long as they know they are loved.”
Submissions
Counsel for the Children’s Representative, Mr Schroder, submitted that the children should go to their mother to live and that after three months they could have contact with their father. The court had heard comprehensive evidence about the competing proposals. There was independent evidence in the Family Report and the oral evidence of the Court Counsellor.
Whilst he conceded that the children had a close relationship with their father, Mr Schroder submitted there was a strong case for a change in circumstances. There was a lengthy status quo with the father, but it had not had a positive effect on the children’s right to be parented by both parents (see Family Law Act, s. 60B). The Family Report showed that the father had deliberately attempted to undermine the contact arrangements provided by the interim orders of 30th September 2002.
Mr Schroder submitted that the evidence showed that the father deliberately intervened to prevent contact and make the children say negative things about their mother. He said that this would continue on all the evidence if the father continued to be the primary residential parent and would happen on contact. There was a need for a three-month settling down period, free from influence by the father. He submitted that the father might well seek to influence the children on the first contact, and there was a need to attend the ‘Keeping contact’ program, which would encourage the father to see the importance of having a good relationship with both parents.
In conclusion, Mr Schroder submitted that if the status quo continued, the children would not have a positive relationship with both parents. If the children were to live with the mother, there would be contact with the father.
Ms Snelling, for the father, submitted that the Court should be cautious to disturb the status quo. The father had been the primary caregiver for the children since the mother left in March 2000. The father says that he is disturbed when the children cry or become ill after contact. The removal of the children from the primary caregiver cannot be in their best interests.
Ms Snelling submitted that the father asked the Court to leave the children in their current environment and give the father support to deal with his attitude to contact, by psychological counselling or other programs. The mother had little track record of parenting and the children have no real relationship with the mother’s new partner, Mr K.
There was no evidence of any shortcomings in the father’s physical care of the children. The difficulties arise from the father’s feelings about the breakdown of his marriage. The father’s sense of being wronged by the mother has remained with him and has overshadowed the children’s issues.
Dealing with the matters required to be considered under s. 68F(2) of the Family Law Act, Ms Snelling submitted that the children were very young and little weight should be given to their wishes. They would prefer to stay with the father, as his home was familiar territory.
Ms Snelling conceded that the children’s relationship with the mother was one of affection, but it would not be in the children’s best interests to uproot them and place them in an unfamiliar situation. There was no criticism of the father’s physical care of the children, but the primary issue was the father’s inability to promote contact with the mother. There were no current family violence issues, she submitted.
In short, it was the father’s case that it would not be in the best interests of the children to change a long-standing situation in favour of an unknown quantity. It would be preferable to assist the children to remain in their present environment and guarantee them some emotional security.
I should note that in her submission, as in her entire presentation of her client’s case, Ms Snelling conducted herself with a dignity and a professionalism that reflect great credit upon her. In my view, she put her client’s case in its best possible light whilst remaining conscious of her obligations to the Court.
For the mother, Ms O’Connor supported the orders sought by counsel for the Children’s Representative. She submitted that it was a bit late for the father to concede that he needed help with the children. It was clear that if the children remained with him, something would always happen to prevent contact happening.
Ms O’Connor submitted that the father’s attitude to the mother had traumatised the contact. Whilst the father said that he had done all he could to make contact happen but the children had refused to go, she said that the father could be regarded as a witness of truth.
Ms O’Connor pointed to the Family report and the oral evidence of Mr Theo George to show that the father was manipulative and that the children’s continued residence with him was not in their best interests. The 4-year status quo has not been good for the children, as the father continually undermined the mother and undermined the contact. The Family Report and the Court Counsellor’s evidence supported the proposition that the mother would be able to cope with the demands of being the children’s primary caregiver.
Principles to be applied
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration (s.65E).
Except when it would be contrary to a child’s best interests, a court should have regard to the principles set out in s.60B(2) of the Act. These include children’s right to know and be cared for by both parents and their right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
In determining the best interests of a child, the court must consider the matters set out in s.68F(2). These matters include the wishes of the child, subject to the child’s maturity and level and understanding. The court may inform itself about the wishes expressed by a child by having regard to anything contained in a report given to the court under s.62G(2).
(a)Children’s relationships with parents, status quo and the effect of change
The court must consider the nature of the relationship of each child with each parent (s.68F(2)(b)) and the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of the child’s parents (s.68F(2)(c)).
There is a general view that if a child’s situation is stable and the child is doing satisfactorily, it is sensible to be cautious about changing the situation unless there are good reasons for considering that doing so will benefit the child.[5] This does not mean that there is an onus that a party must discharge before there can be a change to the status quo. The status quo is no more than one factor to be taken into account in determining what is in children’s best interests.
[5] Chisholm, R, and Dewar, J, “Australian Family Law”, Butterworths, Chatswood, 2003, p.1326.4, paragraph s. 68F.57
As long ago as 1976, the Full Court of the Family Court disapproved earlier statements that suggested that changing the status quo was automatically a serious inroad into a child’s sense of stability. The Court said:
“This may or may not be so in a particular case. Several matters may be relevant – the age of the child, the length of the status quo, its quality, and in particular, the nature of the child-adult relationships developed within it. If the status quo is predictably more detrimental to the child’s welfare than proposed alternatives, a change may not only be desirable, it may be necessary.” (see In the Marriage of Raby (1976) 12 ALR 669; 2 Fam LR 11,348; 27 FLR 412; FLC 90-104).
The Full Court examined the situation in Re David (1997) 22 Fam LR 489; FLC 92-776. In that case, the Court concluded that on the facts a change of residence was the only way to preserve contact with the other parent. The Court made it clear that altering residence was a serious step, and referred to a number of matters that needed to be considered (at Fam LR 506-7 and FLC 84,574). These matters included:
a)the obligation of a residence parent to take all reasonable steps to ensure that a child is made available to the other parent for the purpose of contact in compliance with the order;
b)that in high conflict situations the child might adopt the position he or she thinks is desired by the residence parent; and
c)that it is necessary to determine if there is any basis for the child’s attitude, such as a genuine complaint of ill treatment or abuse.
Conclusions
In this case, I am firmly of the view that the situation calls for a change of residence. I have had the opportunity to see and hear both parents give evidence in the witness box. I have also had the benefit of a Family Report and I have heard the evidence of the Court Counsellor, Mr Theo George. Whilst a Family report does not decide a parenting case, Mr George’s strong, independent report and his eloquent evidence about the emotional difficulties being suffered by the two children, especially K, is very persuasive. Mr George’s clear description of the interaction between the boys and their mother (see paragraph 12 of the Family Report) shows a strong affectionate relationship between them. At the same time, the “theatrics” by the father, as set out in paragraphs 19 to 21 of the Family Report, show the father as being unable to put the children’s emotional well-being before his own sense of anger towards the mother.
I was not favourably impressed by the father’s oral evidence. He appeared as self-righteous and unable to consider that the children had much to gain from a positive relationship with their mother. His explanations that the children were actively thwarting contact with their mother despite his best efforts I found disingenuous, to say the least, and most unconvincing. I did not believe him.
Whilst the father has the capacity to provide for the children’s physical needs, he demonstrated in his evidence and in the Counsellor’s evidence a lack of capacity to understand the children’s emotional needs (s.68F(2)(e)). The father’s attitude to the responsibilities of parenthood seems to have been clearly demonstrated in the incident described by the counsellor. From Mr George’s evidence, which I accept, it was the father’s emotional outburst in the presence of M that caused the child to weep. This seems to me to be a mean and insensitive way to treat a child who was not yet five years of age at the time.
It seems regrettable that the father has not been able to move on emotionally from the circumstances of the break-up of his marriage after four years. I recently attended a lecture by an American psychologist, Dr P S, who had had a considerable amount of experience in family law matters in the United States. Dr S made the point that most people in these circumstances have “disengaged” from the former partner after about two years. That the father remains in the role of the “wronged husband” after four years is unfortunate, to say the least. It is even more unfortunate when he appears to be incapable of taking an objective view of the effect of his behaviour on his children.
By comparison, the mother presented as a calm and affectionate person, who was able to have a positive effect on these two children quite soon after being reunited with them for the purpose of the family report. The mother did not display the same degree of animosity towards the father as he does to her, and she appeared to have a clear understanding of the boys’ need to have a close and loving relationship with both parents.
In short, if the children were to remain living with the father, I agree with the proposition put by counsel for the Children’s Representative that contact would be undermined too such an extent that their relationship with their mother would effectively be sabotaged. If the children live with the mother, I am satisfied that the mother would comply with orders that the children should have contact with the father.
In my view, the evidence points strongly to the fact that the best interests of the children would be served by their living with the mother and having contact with the father. I agree that there should be a “bedding down” period, as suggested by Mr George, when the children would not have contact with the father, to enable their relationship with their mother as residential parent to be given a firm foundation. In also agree that the children need a break from the emotional onslaught of their father, who must learn that continued hostilities with the mother will not benefit the children, or his own emotional well-being.
It is for those reasons that I propose to make the orders suggested by counsel for the Children’s Representative. The orders I make are set out in the schedule at the beginning of these reasons for decision.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 14 December 2004
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