Lou & Wong (No 2)
[2022] FedCFamC1F 883
•14 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Lou & Wong (No 2) [2022] FedCFamC1F 883
File number(s): MLC 11644 of 2016 Judgment of: JOHNS J Date of judgment: 14 November 2022 Catchwords: FAMILY LAW – CHILDREN – parental responsibility – with whom children should live – with whom children should spend time – where the children have refused to spend time with their father – whether the children’s time with the father should be in accordance with their own wishes – whether the mother has and will facilitate a relationship between the children and the father – where the parties reached agreement as to the issues of parental responsibility, live with and spend time – where the remaining issues are limited in scope – where there is agreement that the father’s time with the children should be supervised – where the father should fund the cost of that supervision – where the children should be free to communicate with their paternal family when they wish – where the father should be permitted to attend parent-teacher conferences at the children’s school subject to certain conditions. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), Division 12A, Part VII, ss 60B(1) & (2), 60CA, 60CC(2) & (3), 61BA, 61DA, 64B, 65C, 69ZN, 102NA
Cases cited: Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
Mulvany & Lane (2009) FLC 93-404
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Division: Division 1 First Instance Number of paragraphs: 81 Date of last submission/s: 8 August 2022 Date of hearing: 6-9 June 2022; 8 August 2022 Place: Melbourne Counsel for the Applicant: Mr Robertson Solicitor for the Applicant: Hartleys Lawyers Counsel for the Respondent: Ms Johnson Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Mr Goddard Solicitor for the Independent Children's Lawyer: Autumn Legal ORDERS
MLC 11644 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LOU
Applicant
AND: MS WONG
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JOHNS J
DATE OF ORDER:
14 November 2022
BY THE COURT IT IS ORDERED THAT:
1.The costs of supervision pursuant to Order 6 of the orders dated 8 August 2022 (“the Orders”) be paid by the father.
2.In the event that the children or either of them request to communicate with the father or members of the paternal family, whether by telephone or electronically, the mother do all such acts and things as may be required to facilitate such communication.
3.The father be permitted to attend parent-teacher interviews at the children’s school, provided that:-
(a)He arranges his own appointments separate to those arranged by the mother; and
(b)The appointments are arranged out of school hours at a time when the children or either of them are not in attendance at the school.
4.All extant applications be otherwise dismissed.
5.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lou & Wong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
At issue in these proceedings are the future parenting arrangements for the parties’ two children, X, aged 13, and Y, aged 10. The children live with the mother, Ms Wong, and have spent no time with the father, Mr Lou, since July 2021.
Parenting proceedings were originally commenced by the father in 2016 following the breakdown of the parties’ marriage. On 2 September 2019 final parenting orders were made by consent in the Federal Circuit Court of Australia (as it then was) (“the Final Orders”) which provided for the parties to have equal shared parental responsibility, for the children to live with the mother and spend time with the father for 6 nights per fortnight, half school holidays and on special days.
Approximately 6 weeks after the Final Orders were made, on 22 October 2019 their operation was suspended by order of the Magistrates’ Court of Victoria upon application by the mother for an intervention order against the father, for the protection of herself and the children. That application was made as a result of an alleged physical assault by the father upon Y when she was in his care.
Following the suspension of his time with the children, the father filed a fresh application for final parenting orders in the Federal Circuit Court on 30 October 2019 seeking the resumption of the operation of the Final Orders. That application was transferred to the Family Court of Australia (as it then was) on 10 December 2019.
On 23 January 2020, interim orders were made by consent for the father to have supervised time with the children on a weekly basis. Pursuant to interim orders made on 30 April 2020, the father’s time was to be supervised by a family member for a further period of 8 weeks and then transition to unsupervised day time each alternate weekend.
Notwithstanding those orders, since that time the parties have been embroiled in seemingly endless litigation, both in this court, the Magistrates’ Court of Victoria and the Administrative Appeals Tribunal (with respect to child support). The applications filed have included applications for intervention orders sought by both the mother and the father against each other, the father’s applications to review interim orders made by a Senior Registrar, application for a recovery order as well as contravention applications.
There can be no dispute that the children have been exposed to and involved in the war between their parents; the battle zones have included changeovers at the mother’s home, outside a bank, the children’s language school and their primary school. The father has routinely video-taped changeovers with the mother. The mother too has made audio recordings of changeovers. On occasion, one or other of the parents has called the Police to assist the parties to affect changeovers. The father has installed surveillance devices in his home, including in the children’s bedroom; he says such action was necessary to protect himself against further allegations of family violence being advanced by the mother.
Since July 2021, the children have refused to spend time with the father. The father blames the mother for that circumstance, alleging that she neither encourages nor supports the children’s relationship with him. The mother maintains that the breakdown in the father-daughters relationship is attributable to the children’s exposure to violence at the hands of their father.
The expert evidence before this Court, namely from the family report writer, Ms C, and Ms H, who has provided reportable therapeutic counselling to the family, is that neither the mother nor the father have appropriately shielded the children from the adult dispute. The experts’ view is that the unwavering hostility between the parents has forced the children to choose between them and as a result, they have rejected the father. Both experts expressed significant concern as to the psychological harm being visited upon the children by their parents as a result of the conflict.
The father’s application at the commencement of the hearing was that he have sole parental responsibility for the children, that the parties engage in further therapeutic counselling, that the children live with the father for a period of six months (with there to be a moratorium on the mother spending time or communicating with the children during that period) and thereafter the mother have supervised time with the children and limited telephone communication. At the completion of the therapeutic process, the father proposed that the children live with the parties on a week-about basis.
The mother sought orders that the parties have equal shared parental responsibility, that the children live with her and that they spend time with the father as agreed between the parties and in accordance with the children’s wishes.
The preliminary view expressed on behalf of the ICL at the commencement of the hearing was that orders should be made for the children to live with the mother and spend time and communicate with the father pursuant to their wishes.
I heard evidence from the mother and the father as well as Ms C and Ms H over the first four days of the hearing. The matter was then adjourned part-heard to enable final submissions to be made on behalf of each of the parties on the final day of the hearing, 8 August 2022.
The delay in the proceedings enabled the parties to consider and reflect upon the evidence given in the first week of the trial. The parties likely benefited from that delay as in the result, by the time of completion of closing submissions, many matters were agreed between them. That agreement was largely informed by the evidence of both Ms C and Ms H.
During closing submissions I was informed that the parties had agreed that the mother ought retain sole parental responsibility for making decisions regarding the children’s long-term care, welfare and development, subject to appropriate provision of information to the father prior to any such decision being taken. Further, there was agreement between the parties that the children should continue to live with the mother and spend time with the father for a period of four hours on the first Saturday of every second month and that that time should be supervised. There was also agreement that the father should be permitted to communicate with the children on special occasions, including their birthdays, Christmas Day, Lunar New Year and Father’s Day. Having regard to the evidence before the Court I was satisfied that the parties’ proposed consent orders with respect to those issues were in the children’s best interests and I made orders in relation to those matters at the conclusion of the parties’ submissions.
The issues remaining to be determined by the Court were therefore limited to six, namely:-
·Should the cost of supervision be shared between the parties or at the father’s sole expense?
·Should the father’s time be supervised by Ms C?
·Should there be an order permitting the children to communicate with the father and the paternal family at their election and a requirement that the mother facilitate such communication?
·Should the father be permitted to attend parent-teacher interviews and school events to which parents are ordinarily invited to attend?
·Should the mother be required to attend a parenting course and family violence course as nominated by the Independent Children’s Lawyer?
·Should the parties and the children be required to engage in family therapy with Ms C at the joint expense of the parties?
Although the father’s counsel informed the Court that the father also sought orders requiring the children to attend upon their school psychologist, no submissions were made in support of such order. This family has had a long history of engaging with psychologists to assist and support their relationships with each other. During the course of submissions, I determined that Ms C will continue to provide support to the family through her supervision of the children’s time with the father and I made orders to that effect. Having regard to those matters, I am not persuaded that it is in the children’s best interests that they be required to attend upon their school psychologist.
These are my reasons for judgment with respect to those issues.
THE PARTIES
The applicant father, Mr Lou, is aged 47 years. The father is a Manager, though at the time of hearing was not working.
The respondent mother, Ms Wong, is aged 42 years. The mother is employed as a finance professional.
The parties married in 2008 and separated in December 2015 (as contended by the father) or January 2016 (as contended by the mother). Nothing turns on that issue.
There are two children of the relationship, X, aged 13, and Y, aged 10. X is in Year 7 at a local secondary school and Y is in Year 5 at a primary school close to the mother’s residence. Both children are progressing well at school and enjoy good health.
MATERIAL RELIED UPON
The applicant father relied upon the following documents:-
·Further Amended Initiating Application filed 17 May 2022;
·Affidavit of the Applicant filed 17 May 2022;
·Affidavit of Ms J filed 9 February 2022;
·Family Report of Ms C dated 6 April 2021;
·Affidavit of Dr F sworn 20 December 2018;
·Affidavit of Dr F sworn 25 February 2018;
·Child Inclusive Conference Memorandum of Family Consultant L dated 8 April 2020;
·Family Report of Ms C dated 21 May 2017; and
·Documents tendered throughout the course of the final hearing, being Exhibits F-1–F‑3.
The respondent mother relied upon the following documents:-
·Affidavit of the Respondent filed 30 May 2022;
·Further Amended Response to Final Orders filed 30 May 2022;
·Affidavit of Ms H filed 10 May 2022;
·Affidavit of Ms J filed 9 February 2022;
·Affidavit of the Respondent filed 5 November 2021;
·Family Report prepared by Ms C filed 25 October 2021; and
·Documents tendered during the course of hearing, being Exhibits M-1–M-6.
The ICL relied upon the following documents:-
·Applicant’s Amended Application for Final Orders filed 22 October 2021;
·Affidavit of the Applicant filed 22 October 2021;
·Affidavit of the Applicant filed 10 November 2021;
·Respondent’s Amended Response to Application for Final Orders filed 5 November 2021;
·Affidavit of the Respondent filed 5 November 2021;
·Affidavit of Ms C filed 25 October 2021; and
·Documents tendered during the course of hearing, being Exhibits ICL-1 and ICL-2.
THE HEARING
As this is a parenting case, the Court must give effect to the principles enunciated in Division 12A of the Act. Section 69ZN of the Act sets out the principles for conducting child-related proceedings. Of particular relevance to these proceedings are:-
·The first principle, which requires the Court to consider the needs of the child/ren concerned and the impact the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
·The second principle, which requires the Court to actively direct, control and manage the conduct of the proceedings; and
·The fifth principle, which requires that the proceedings should be conducted without undue delay and with as little formality and legal technicality and form as possible.
At the Case Management Hearing conducted by me on 27 May 2021, I made orders that the requirements of s 102NA of the Act would apply to any cross-examination in the proceedings. That order was made as a result of the final family violence intervention orders made against the father for the protection of the mother and the children. As a result of that order, both parties obtained representation through the Commonwealth Scheme and were represented by Counsel at trial. The ICL was also represented by Counsel at the final hearing.
The hearing was conducted over a period of five days. Both the father and the mother were cross-examined, as were the experts, Ms C and Ms H.
LEGAL PRINCIPLES
Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except where 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).
The parties seek parenting orders in accordance with the definition provided by s 64B of the Act. That is, they seek orders with respect of:-
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons; and
(c)the allocation of parental responsibility for a child.
Each of the parties has standing to apply for such orders pursuant to s 65C of the Act, both being biological parents of the children.
In making a particular parenting order, the best interests of the children are to be the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) set out the primary and additional considerations the Court must have regard to in determining what is in the children’s best interests. The Court must give greater weight to the need to protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of these considerations will depend upon the unique circumstances of each case.
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at [76]-[77] as follows:-
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in original)
There is a general presumption that it is in a child’s best interests for both parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates solely to the allocation of parental responsibility, as defined by s 61BA to comprise all duties, powers, responsibilities and authority which, by law, parents have in relation to a child. The parties agree, and I am satisfied, that in this case, it is not in the children’s best interests for the presumption to apply and that the mother should have sole parental responsibility for making decisions regarding their long term care, welfare and development, on the condition that the father is given prior notice of any proposed decision and an provided opportunity to have input into such decision.
THE EVIDENCE
Findings are made on the balance of probabilities, having regard to the evidence. In applying that standard, the Court must consider the nature and subject matter of the case and the gravity of the matters alleged (Evidence Act 1995 (Cth), s 140). In what follows, statements of fact constitute findings of fact.
I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the parties when giving evidence in Court.
In making my findings, I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.
WHO SHOULD BEAR THE COST OF SUPERVISION?
The father’s position is that the cost of the supervisor engaged to supervise his time with the children every second month ought be shared between he and the mother.
The mother opposes that application and maintains that the father should meet that expense. The mother maintains that an order in those terms is appropriate in circumstances where:-
·There are approximately $15,000 in child support arrears payable by the father to the mother;
·The mother meets all expenses associated with the children’s day-to-day care and their extra-curricular activities; and
·There are outstanding property orders that the father pay the mother $20,000 in respect of her entitlements from his self-managed superannuation fund.
In his trial affidavit filed 17 May 2022, the father deposes as to the history of his child support payments. At [220] of that affidavit the father deposes that he resigned his employment after the children stopped living with him as he was “struggling mentally and unable to concentrate at work”.
At [221] of the father’s trial affidavit, he deposes that he has a current child support assessment to pay $1,794.50 per month. Further, he has arrears of child support of approximately $15,000.
The mother’s position is set out in her trial affidavit filed 30 May 2022. At [454] of that affidavit, she deposes that the father is not currently paying child support due to his unemployment.
In circumstances where it is common ground that there are significant arrears of child support, as conceded by the father, and where his oral evidence confirmed that he is currently not working and therefore unlikely to be in a position to meet his child support liability whilst that situation remains, I am satisfied that it is appropriate that he meet the costs associated with supervised time. The mother is almost solely responsible for the day-to-day support of the children. Having regard to that fact, in my view it is appropriate that the father meet the costs incurred in facilitating his time with the children.
SHOULD THE FATHER’S TIME BE SUPERVISED BY MS BOTTOMLEY OR ANOTHER AGENCY?
During closing submissions, the ICL proposed that the father’s time be supervised by Ms C. The father supported that position. The mother opposed an order in those terms.
The submission made on behalf of the mother in opposition of Ms C was that it is uncertain that she would be available to assist the parties and further, that her engagement would be on a reportable, rather than confidential, basis. The mother’s view was that that position was likely to invite further proceedings.
I did not accept that submission and included provision at Order 6 of the 8 August 2022 orders that the father’s time be supervised by Ms C or another supervisor agreed by the parties from time to time.
In my view, given the long history of conflict between the parties at changeovers, having an independent expert available to assist them who is experienced in supporting families in such situations can only benefit the children in this matter. That her involvement is reportable, in my view, is likely to encourage the parties to remain child-focussed. In my view, supervision will ensure that the parties refrain from engaging in argument and conflict in the children’s presence, as has occurred previously during changeovers and is reflected in the audio and video recordings made by the parties (Exhibits M1 and F1).
Ms C has had extensive involvement in this matter, having prepared her first Family Report on 21 May 2017. Her second Family Report, dated 6 April 2021, is annexed to her affidavit filed 25 October 2021. Ms C has had the opportunity to meet with both parents and the children for the purposes of the preparation of those reports. She has also given evidence in the proceedings and been cross-examined by Counsel for all parties.
Ms C’s Family Report dated 6 April 2021 clearly identifies the challenges facing this family as a result of the poor relationships between the parents. At [22] of her report, Ms C identified the issue as follows:-
… Whilst these parents present as caught up in a battle with one another, they have failed to consider what needs to be done to protect the children from the psychological damage of the extended battle between their parents. Providing skilful and unified coparenting support for the children is far better than eliminating a parent from the child life or subjecting the family to ongoing court proceedings. Both parents have contributed to the parent-child problem in one way or another and must make changes to resolve it. Certainly, engagement with therapy will be critical to correct faulty dynamics within the family and to restore coparenting cooperation that will lead to family peace and healthy relationships.
At [23] of the report she continued to observe of the parents as follows:-
Both parents presented as trapped in polarized thinking, blame, and bitter resentment about the conflict they have had to endure…
A significant issue in the case is the question of how the children can be supported to transition to the father’s care in circumstances where they have been steadfast in their refusal. Ms C was questioned as to what could be done to support the children successfully transitioning from the mother’s care to spend time with the father, given the long history of difficulties in the children successfully moving between their parents. Ms C’s evidence in relation to that issue was insightful and compelling. It was her view that it is inappropriate that such transitions occur in a public place (as has been attempted by the parties previously). She also noted that there is a history of unsuccessful transitions at school and involving the police. Given that history, it was Ms C’s view that the transitions require:-
…really intensive monitoring of time with dad, in terms of the children being able to be really well-supported to transition but also to pick up on their reporting straight back to an independent professional who knows how to work through and unpack any of those difficulties at the conclusion of their time with the father.
Ms C confirmed her view that in this case, the children’s time would not be successful “without really intensive, on-the-ground support”. When asked, Ms C confirmed her preparedness to provide that support to the parties to facilitate the father’s time with the children.
I accept Ms C’s evidence as to the attitudes of the parents, the experiences of the children and the difficulties facing these parties in formulating an arrangement to enable the children to successfully have the opportunity of time with the father.
The advantage to the parties, and more particularly the children, of having Ms C supervise the time is that she is familiar with the family and the dynamics between the parties and the children, having had the opportunity to observe the family over an extended period. She is well aware of the issues that face the family and is well-equipped to support the children in their transition from the mother to the father.
Having regard to her evidence as to the challenges facing the family, her awareness of the allegations raised in the dispute, her familiarity with the parenting style of both the mother and the father and her experience in providing such support to other families, I am satisfied that it is appropriate and in the children’s best interests that Ms C be engaged to assist the parties in the supervision of the father’s time with the children.
Should the parties and the children be required to engage in family therapy?
The father seeks an order that the parties and the children be required to attend upon Ms C for therapeutic counselling in order to assist in the re-establishment of the relationship between the father and the children. That order is opposed by the mother and the ICL.
On behalf of the father, it was submitted that an order in those terms may assist the children in their transition to the father’s care. The father also relied upon the evidence of Ms C as to the potential long-term damage to the children if the relationship they have with the father is not repaired. The positon of the ICL is informed by the long history of the parties’ engagement in family therapy with little or no success.
The parties commenced family therapy in 2018 with Dr F, Psychologist. The father relies upon the two affidavits of Dr F, both filed 30 October 2021. Annexed to those affidavits are Dr F’s reports, dated 16 February 2018 and 20 September 2018.
The ICL placed reliance on the observations of Dr F set out in her report dated 20 September 2018 at page 3 of 14 of her affidavit affirmed 20 December 2018, wherein she states:-
Discussions with [Y] and [X] have revealed that both parents have coached the children prior to attending psychological sessions. The children have also reported that both parents have either discussed with the children directly or in front of them access arrangements. Such discussions appear to exacerbate [X]’s anxiety, as she describes a sense of guilt that her parents are in conflict over her and [Y]. The parent’s individual accounts of the parenting alliance reflect competitive co-parenting; [the father] and [the mother] often consumed with not allowing the other parent to “win”…
Although that assessment was made in September 2018, it was submitted on behalf of the ICL that little has changed in the parties’ subsequent approach to co-parenting. It was submitted that in circumstances where “nothing has changed”, there is little benefit to the children in making orders for further family therapy. The ICL’s view was bolstered given the family’s recent attempts to engage in family therapy with Ms H, Psychologist. Ms H was engaged by the parties upon recommendation by Ms C.
Ms H engaged in assessment sessions with the parties in March 2022. She reports in relation to those sessions by letter dated 28 March 2022 which is annexure ‘A’ to her affidavit filed 10 May 2022. At page 1 of that letter, Ms H assessed the parties as follows:-
I found you both to be caught in strongly held grievances about each other. The level of mistrust is of concern and poses a risk to any recovery for [X] and [Y]. Until you can find a way to put these grievances aside and assume the higher ground as parents, I believe that [X] and [Y] will continue to feel psychologically caught.
On the second page of that correspondence Ms H observed that:-
…Ongoing complaints about each other, as well as blaming, will only indicate that you are not ready to consistently take the higher ground as parents. Should that continue, then I will withdraw from the therapy.
At the conclusion of that report, Ms H set out her proposals for ongoing therapy.
Each of the parties forwarded emails to Ms H in response to that letter, each party seeking to advocate their respective views and to apportion blame for their situation upon the other (Annexure ‘B’ to the affidavit of Ms H).
By letter dated 5 April 2022, Ms H informed the ICL of her positon, having regard to the parties’ responses to her proposed therapeutic intervention (Annexure ‘A’ to the affidavit of Ms H). She informed the ICL as follows:-
In light of the response of both parents to the assessment and proposal recently undertaken in this matter, I consider that a therapeutic approach will not assist this family.
[The father] seems intent on litigation and so any therapeutic input will be countered by the Court’s ongoing involvement.
…
… the focus [of the parties] is on further litigation and blaming of the other, thus negating the positon of responsibility that I request they take.
The evidence of Ms H, both in her affidavit and during her oral evidence, supports the view that the parties have little capacity to engage in family therapy. The observations of Ms H in March 2022 are consistent with those of Dr F in her reports of 2018; little has changed.
The submission made by Counsel for the ICL is that the children should not be exposed to further conflict between the parents in that setting. The evidence of Ms H supports the view that the parties have sought to use the therapeutic processes to vindicate their own position and apportion blame to the other, rather than focussing on how to improve their parenting relationship.
Having regard to that evidence, I am not persuaded that the children will benefit from further orders for family therapy. Accordingly, that part of the father’s application will be dismissed.
Should there be orders permitting the children to communicate with the paternal family?
The father seeks orders that would require the mother to facilitate any request by the children to communicate with him or other members of the paternal family. That application is opposed by the mother.
The mother’s position is that any order which imposes an obligation upon her enlivens the prospect of further litigation; it is her fear that the father may issue further Contravention Applications if he perceives a breach of the order. Further, it is submitted on behalf of the mother that if such request was made by the children, she would facilitate that time. Hence, she submits that an order in those terms is unnecessary.
In my view, an order as sought by the father is in the children’s best interests. Previously, the children have enjoyed strong relationships with members of the paternal family. The children have had little, if any, communication with the paternal family since the commencement of these proceedings. In light of that history and the evidence of Ms C as to the importance of the children maintaining their relationships with the paternal family, I am satisfied that an order that the mother facilitate such communication, should the children request it, is in their best interests. In my view, the benefit to the children of an order in those terms outweighs the risk of the father bringing further spurious applications. In any event, were such application made without proper foundation, the father is on notice that an application for costs by the mother would inevitably follow the dismissal of such application.
Should the father be permitted to attend parent/teacher interviews and other school events?
The father seeks orders permitting him to attend parent/teacher interviews and school events to which parents are ordinarily invited to attend. The mother’s position is that insofar as parent/teacher interviews are concerned, provided that appointments are arranged such as to ensure that neither she nor the children come into contact with the father, she does not oppose that arrangement. Otherwise, the mother opposes orders that the father be permitted to attend other school events.
The mother’s position is that given the highly conflictual nature of the parties’ relationship, to allow both parents to attend school events will invite the prospect of the children being exposed to further parental conflict. The ICL supports that position.
Throughout the hearing, I have heard much evidence from both the mother and the father as to circumstances in which they have been unable to contain their hostility and anger towards the other and that the children have been exposed to that behaviour. I have had the opportunity to listen to the audio recording of the changeover that occurred at the mother’s home (Exhibit M-1) and I have also observed video recordings made by the father of contact changeovers (Exhibit F-1). The parties’ behaviour on those occasions includes raised voices and shouting, attempts to engage the children in the dispute, including asking them “do you know how much money I’ve spent in court to get to spend time with you?” and threatening that “if you go with mummy, mummy will go to jail” (Exhibit M-1). That conduct satisfies me that the children should be protected from the possibility of their parents coming into contact with each other.
In her assessment of the children, Ms C reports as to the lasting impact of the parental conflict. At [35] of the Family Report, she notes:-
It is clear [the children] cannot rely on their parents to communicate, as [X] reports, ‘They don’t talk to each other’. [Y] reports, ‘Dad always frowns, and mum tries to keep her distance’, with [X] stating, ‘They don’t try. This is reflected in [Dr F’s] report who refers to [X] as a child who ‘feels under pressure with a huge sense of responsibility considering her young age’, further reporting, ‘both parents coach the children and discuss care arrangements with them, exacerbating [X]’s anxiety’.
At [36] of the Family Report, Ms C notes the children’s self-report of the pressure they feel from their parents.
Having regard to that evidence, which is consistent with the earlier reports of Dr F from 2018, I have no confidence that the children would not be subjected to pressure and potential parental conflict in the school setting at events which the parents may attend. School events to which parents are invited to attend are usually opportunities to share in and acknowledge their children’s achievements, whether it be on the sporting field, in music or art; they are celebrations. Given the parties’ inability to appropriately regulate their behaviour when together, it is my view that the children should be protected from such behaviour, particularly in the school setting. Accordingly, I am not persuaded that there ought be orders for the father to be permitted to attend such events.
Should the mother be required to attend a parenting course or family violence course?
The father seeks orders that the mother be required to attend a post-separation parenting course and also a course in relation to family violence. That application is opposed by the mother and not supported by the Independent Children’s Lawyer.
The evidence before the Court is that the mother has already attended a post-separation parenting course. The mother annexes to her trial affidavit evidence of her completion of that course (Annexure LL-1). Having regard to that evidence, I am not persuaded that she should be ordered to attend another course.
Further, in circumstances where there is a final family violence intervention order in place and where the prospect of these parties coming into contact with each other is remote, I am not satisfied that it is necessary for the mother to attend a family violence program.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.
Associate:
Dated: 14 November 2022
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