Lyndon and Lyndon

FAMILY COURT OF AUSTRALIA

LYNDON & LYNDON

[2007] FamCA 459

FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child - Children aged 17 and 12 ½ years – Time to be spent with father – High conflict and lack of communication between parents – Children’s views – Children’s relationships

Family Law Act 1975 (Cth)

APPLICANT:

Mr Lyndon

RESPONDENT:

Mrs Lyndon

FILE NUMBER:

SYF

3815

2002

DATE DELIVERED:

21 May 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

13 December 2006, 12 & 13 March 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr M. Twigg of
Adrian Twigg & Co

COUNSEL FOR THE RESPONDENT:

Ms Rees

SOLICITOR FOR THE RESPONDENT:

Abrams & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Boyle

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

All prior parenting orders in relation to the children, the elder daughter (born in May 1990) and the younger daughter (born in August 1994) are discharged.

The children are to live with their mother at all times other than those specified in these orders.

Subject to orders 1 and 2, no orders are made with respect to the elder daughter’s arrangements.

The younger daughter’s arrangements are as follows:

(A) The younger daughter is to spend time with her father:

(a)during the school term every third weekend from after school Friday to before school Monday, commencing on the first Friday immediately after the commencement of the school term;
(b)for one half of each school holiday period at the conclusion of terms 1, 2 and 3 as agreed between the parents or failing agreement commencing 9am on the first Saturday after the commencement of the holiday period;
(c)for three weeks during the holidays following the conclusion of term 4 as agreed or failing agreement commencing on the midpoint day at 12 noon (when there are an odd number of days in the holidays) or commencing 9am on the first day of the second half of the holidays (when there are an even number of days in the holidays);

(d)      on Christmas Day from 4pm to 10pm;
(e)on Father’s Day from 9am to before school the following day if not otherwise a weekend she would spend time with her father according to these orders;
(f)if she is spending time with her father according to these orders on Mother’s Day then she is to be returned to her mother’s from the weekend visit no later than 9am on that day and remain there for the duration of the weekend;
(g)on the younger daughter’s birthday if not otherwise spending time with her father according to these orders –
(i)       if a school day, from after school to 7pm;
(ii)      if a non-school day from 6pm to 9pm; and
(h)at other times agreed provided the arrangement is agreed first between the parents before any arrangement is made with the younger daughter.

(B) To facilitate the above arrangements:

(a)The mother is to take the younger daughter to the father’s residence at the start of the time the younger daughter will spend with the father and the father is to return the younger daughter to the mother’s residence at the conclusion of that time except where the younger daughter is to be collected or delivered from/to school in which case the father is to do so.
(b)Each parent is to notify the other in writing of any change to his/her residential address and telephone number prior to any change and keep the other informed of their current address and telephone number.
(c)Each parent is to facilitate the younger daughter communicating with the other parent at any reasonable time she might wish to do so.

(C)If either parent intends to take the younger daughter away from their residence overnight, the travelling parent is to give prior notice to the other parent in writing of the intended destinations, dates of departure and return, and provide telephone contact numbers for the child during the absent period.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3815 of 2002

MR LYNDON

Applicant

And

MRS LYNDON

Respondent

REASONS FOR JUDGMENT

Proceedings

The decision required is about arrangements for the parties’ two daughters – the elder daughter who is aged 17 years (dob. …/5/90) and the younger daughter who is aged 12½ years [dob. …/8/94] – more particularly, the extent to which orders will provide for them to spend time with their father.

Background

The father (57) and the mother (42) began living together in 1987 and they married in April 1988. They separated in April 2001 when the children were aged almost 11 and 6 ½ years respectively. They were divorced in November 2002.
Not a lot is said of the parents personal circumstances in the material presented. The father once operated a business but he now does casual work as an administrative assistant and one day per week he does volunteer work. Some time ago he was diagnosed with depression and prescribed medication for it in 2001 when he saw Dr M, a psychiatrist, but he has not taken any medication for depression for many months now. The mother works for a firm of accountants. The children have lived with her since the separation.

Evidence

The evidence comes from each parent and from Ms G, Family Consultant. Six affidavits sworn by the father between 21 March 2006 and 17 January 2007 constitute his evidence in chief and the mother relied on her affidavit sworn on 31 January 2007.
Ms G’s report resulted from her initial conference with the parents on 2 November last year and from interviews she conducted with the parents and the children in February: firstly on 7 February with everybody and then on 12 and 14 February with the mother and father in turn. She also had some documents made available to her, including a copy of a report by Mr B related to the children’s arrangements in earlier court proceedings. She elaborated on aspects of her report under cross-examination and the effect of that was to adhere to the evaluations and recommendations set out in her report.
Essentially, she recommended that no orders be made about the elder daughter’s arrangements, leaving her to spend time with her father when she wishes and can, and that the younger daughter spend time with her father every third weekend and for half the school holidays, any changes to be negotiated by the parents initially. As for their circumstances overall, she observed the children to have been involved in extremely destructive and protracted conflict between their parents and she considers the level of animosity and inability of the parents to constructively communicate is psychologically abusive to both children. She sees little likelihood of any improvement in the dynamics; hence, she sees no benefit from counselling for the parents. At the same time, she considers both children may benefit from the development of an independent, confidential, long-term therapeutic relationship.
The effect of one of Mr Twigg’s submissions in closing is that little weight could be given to her recommendations, more particularly about there being no orders made to fix the elder daughter’s arrangements. In cross-examination of Ms G he questioned the time she had spent with each parent and the affidavit material she had available, more particularly the father’s, but the submission is not about these areas. It centres on the proposition that she changed her mind about what she would be recommending for the elder daughter between the first interviews on 7 February and later interviews on 14 February. That comes from the father’s case which is to the effect that at the end of the first day of interviews Ms G said she would be recommending orders for the elder daughter’s contact with her father but when her report issued her recommendation was to the contrary. Picking up just one aspect of what she said when asked for her reasons, the submission is that she did not sufficiently identify the ‘inflexibility’ of the father that so persuaded her, and nor did she satisfactorily demonstrate the reasoning process that led her to make the recommendation in her report. In any event, it is said, it is for the court to make that assessment in light of all of the evidence and not for Ms G.
Her account of what occurred during the interview process is somewhat incongruent with the father’s version. She denies stating in any definitive way at the end of the first day’s interviews that she was going to recommend there be an order about the elder daughter’s arrangements. As she explains it, she met with the parents at that time to give them feedback and explore options, consistent with her practice, and in the course of that she did indicate she was leaning towards the possibility of a defined arrangement for the elder daughter, but this is a far cry from any definitive statement to that effect. She points out she had not at that point completed her assessment process and the further appointments were made with each parent for that purpose. It was those later interviews that caused her to draw away from her tentative leaning and she identified her ultimate view as related to her later assessment of the father as ‘inflexible’ in that he appeared unable to shift his fixed position or consider that his daughters may not be puppets of their mother, as he so steadfastly believes. Nor, in her opinion, did he appear to be thinking about the elder daughter and this left concerns about his capacity to separate out issues for her from his own issues. Thus, the change in her earlier tentative view was the result of her clinical assessment of the father which, as I find, is within her field of expertise and experience to make.
Certainly the decision about outcome is one for the court, there could be no argument about that, but the decision is one based on all of the available evidence, including that of the reporter. I am satisfied Ms G undertook the task asked of her in a competent manner and that she was able to support her opinions in an articulate and reasoned way. I am satisfied therefore that her opinions are worthy of confidence and the weight of her evidence is not depreciated by any reconsideration of the elder daughter’s circumstances or by anything else connected with the process she undertook. Later discussion of her evidence will proceed from the footing these findings establish.
Turning to the parents’ evidence, they have quite opposite views about the underlying causes of the dynamics within the family and they offer quite different perspectives about particular incidents or events that have occurred over many years. Despite that, it is not necessary in this case for there to be any finding about the reliability or creditworthiness of one over the other and, understandably, no submissions were made along those lines. That is because what is relevant is not so much who did what when, but the very fact of their unresolved and long term differences and their disputed perspectives, along with the manner in which those disputes are played out and communicated, including the engagement of the children in it.
The affidavits are not extensive but the history they present covers the many years since their separation. To support a particular perspective, they have each annexed correspondence exchanged either directly between them or through their solicitors and this gives some idea of the nature of their disputes over time and the manner in which they have been aired. The correspondence of itself sketches a problematic picture over a long time and gives force to Ms G’s observation that these children have been ‘caught up in the midst of an extremely destructive and protracted parental conflict for at least the five years since their parents’ separation’, an assessment also borne out by the other material and presentations at the hearing.

The children

The elder daughter is in year 11 of her schooling. She has a history of speech and learning difficulties which have required support and assistance over the years. Ms G found her to be a quietly spoken young woman, conscientious in her approach to her studies, and eager to do well at school. Her father has described her as shy, fragile and vulnerable.
Ms G assessed the younger daughter as more confident than her older sister and generally as a somewhat compliant young person who is trying to please and accommodate both parents. Ms G thought it likely she is more troubled about the family situation then she is prepared to concede.

Background

Court proceedings about the children’s arrangements were first instigated by the father in January 2005. That development will be mentioned shortly, but initially after separation the children had contact with their father by arrangement at regular intervals. The earliest letter amongst the correspondence is dated 10 July 2001, several months after separation, written by solicitors acting for the mother to the father referring to instructions that agreement about the children’s arrangements had been reached at mediation and enclosing draft consent orders for his signature and return. His reply by email on 1 August 2001 was directed not to the solicitors but directly to the mother. Amongst other things, he questioned why she had decided to waste money on drafting up court orders and asked how she thought they would enhance the children’s lives or her life. He was highly critical of the mother’s father which he expressed in quite confronting language. There is another document he wrote referring to her father, undated but written before his death in 2003:
‘You didn’t know how dishonest your father is. Won’t it be great when the arsehole is DEAD. What sort of family could prohibit the children from contacting their father. YOURS!!’
Returning to his email of 1 August, his remarks about her father are the precursor to later passages which self evidently have serious implications for the children:
‘I guess this has come from the direction of your father. I will describe to you my evaluation of his limited relationship skills at another time. He is not going to be on this earth too much longer just as my parents are not. He has displayed time and time again his lack of understanding of the issues which we are attempting to address in the interests of our children. His understanding of the issues which we face today is minimal. Yet in the background he is carefully planning [the mother’s] separation and divorce for her. How kind of him. You are the one who has to live with the outcome. Not him. He will be long dead when [the elder daughter] is still trying to come to grips with some understanding of how she can make a useful contribution to this world and be at peace with herself – provided we don’t lose her before that.
When you last resorted to tactics with your solicitor I told you that the matter will never be sorted out between solicitors. I told you that if you were to revert to this direction you would get an appropriate reaction from me. That is exactly what is going to happen.
Our separation has provided me with an opportunity to develop enriched relationships with the children in a way I could not have achieved when living with you. Your continual abuse of me when we lived together saw paid to that. I have almost free and unfetted (sic) access though marred from time to time by your intervention and control. I can sit on the couch with [the elder daughter] and discuss life issues in depth. I can hold her and cuddle her. She is no longer embarrassed by this. There is nobody to question my behaviour in front of her. To plant doubts in her mind. To continually point out the risks of being alive. We had some of the most useful times on holidays when she was sick.
But I am not sure I want to go down this path with the children any longer. If you find this so threatening that you have to go off and seek revenge in a Court of Law then I think perhaps it is time you took the kids and you own them as your children. It will be sad for me for a few weeks. But at least I will know I am following my mothers excellent advice. She is so strong in this belief that this is in my best interests.
In the meantime I will be writing to the kids to explain the situation. If as in previous correspondence to them you misplace it I will send it directly to your solicitor and she can ensure that it gets to the children. My arrangement with you with regard to [the younger daughter’s] birthday is off. You will be paying for it.
Ask your father how he will feel when he receives a similar letter from my solicitor.’
Contact in the sense of the children visiting and seeing their father at regular intervals did cease at the father’s instigation at some point which was never precisely identified but it is accepted it was from some time around the middle of 2002. It was not restored, for the younger daughter at least, until after orders were made in the 2005 proceedings. In the long intervening period, the father had some contact with the younger daughter by going to her school and he also tried to see the elder daughter at her school. A letter from the father to the younger daughter [exhibit 4] on 4 July 2002 seems to give an indication of the developments between himself and elder daughter:
‘Dear [Elder daughter].
It has been 3 weeks since we talked or had any contact. I am sure you are wondering why this is so and what might happen in the future.
I would like to talk to you in person for about 10 minutes. If you would like to do this then please call me and tell me when we might meet.
Dad’
His decision to make visits to the younger daughter’s school was not without contention and there were difficulties surrounding telephone calls, apparent from his letter to their mother on 8 July 2002:
‘I write to record the fact that you have denied me telephone access to our children over the last two weeks. Whilst I have been able to talk to [the younger daughter] by attending her school you have continually refused my requests on the telephone to talk to [the elder daughter]. I have written to [the elder daughter] and had no response. On Saturday morning last (6/7/02 at 9.05am) you abused me on the telephone and hung up three times…..…’
The reply came from the mother’s solicitor’s letter dated 22 July. Through that, she denied obstructing telephone contact and his visits to the school were described as ‘inappropriate and disruptive’. Generally the letter conveys her perspective about the unsatisfactory state of arrangements involving the children. It suggests she is willing to continue the contact arrangements agreed after separation [every Thursday evening after school overnight and every second weekend from Friday afternoon until Sunday evening as well as half of the school holidays] but asks that it be ‘regular and consistent for the girls’ sake’. One issue taken up in the letter has remained an issue in all the years to follow – her view that it is inappropriate for him to make arrangements directly with the children without first organising it with her.
The long period of unresolved difficulties surrounding the elder daughter is indicated by his much later letter to her in or about May 2004:
‘Dear [Elder daughter],
In October last year I wrote to you about Christmas holidays. I am still awaiting your reply.
I guess the reason that you have not responded to my letter could be:
1.        You have not received it.
2.        You simply don’t want to respond or contact your father in any way at all.
3.        Your mother has encouraged you not to respond to anything that involves your father.
4.        Your grandparents have likewise advised you not to respond to anything that involves your father.
I would be grateful to know which of the reasons above is causing you not to respond to my letter. Unless I get a firm response to this letter I will not bother to write to you again at all which no doubt will please your mother and grandparents.’

This brought a reply from her mother on 7 May 2004, again reflecting themes that have remained constant over later years:
‘[The father],
You wrote to [the elder daughter] prior to Christmas 2003 and invited her to come away on holidays with you. I told her, as I’ve told [the younger daughter], that it was inappropriate for her to make the decision with you alone. Progressing the arrangement is up to you, it is not the children’s responsibility. As I am sole caring parent and guardian of the children I expect you to approach me directly regarding any arrangements you’d like to make regarding the children and not approach the children directly.
Fortunately [the elder daughter] was away during the holidays when your most recent letter arrived threatening her with ex-communication by you if she didn’t respond. I have not given it to [her] as it would leave her bewildered and, no doubt upset, to truly understand your ultimatum. It’s deliberately malicious, vindictive and reckless in nature. Not fit for a thirteen year old child.
What a pity you couldn’t have used the time it took you to pen the undated, unsigned letter to [the elder daughter] to reach out to her in some way. She turned 14 yesterday and, once again, third year running, you couldn’t even put a card in postbox. The very same week you approach [the younger daughter] to accompany you to a dinner.’
Several months later the father wrote to the younger daughter on 9 August 2004 and again this gives an indication of the continuing difficulties of the time:
‘Dear [Younger daughter],
It is unfortunate that you were unable to come over to visit me on your birthday as planned last Saturday. As the time for the visit was proposed by your mother I thought that it would be convenient. I waited at home for you as we confirmed on the telephone on Saturday morning but no [younger daughter]. I have put your birthday cake into the freezer until you are able to come over and share it with me. [Your uncle and aunt] were so looking forward to seeing you after two years. So was your grandfather who is now 89 years old.
You said that you wanted to have a sailing birthday party with some friends. It is just as well we did not organise that last Saturday. It is sad you don’t have any birthday party organised at this time.
Please let me know when you will come over so we can celebrate your birthday. I hope it will be soon. My mobile phone number has not changed and is […]. I suggest you write it down in your diary.
In the meantime have a happy birthday next Saturday. Congratulations on reaching 10 years old.
Your dad,
PS There is little point in arranging any holidays for September at this time.’
Her mother replied the next day by letter which reads in part:
‘[The father],
In response to your disturbing letter to [the younger daughter] left open in our mailbox to today.
The difficulty with you refusing to either speak directly to me regarding arrangements you make with the children, or, at the very least, confirm them in a letter, is that you are relying on the child as the organiser. But then you’re the adult, so I assume you understand that and persist making arrangements directly with [the younger daughter]. You continue to do so regardless of my repeated requests to make any plans that involve the children directly with me.
[The younger daughter] and you did not have a telephone conversation last Saturday morning. [She] telephoned you on the Friday evening to request, for the third time that week, that you write me a note to confirm the arrangements you had made with her at school. During that phone conversation you cancelled the Saturday plan. When [the younger daughter] had finished speaking with you she was left in no doubt that there were no longer any plans for Saturday. No doubt you heard her crying before the two of you hung up.
How mischievous, in fact vicious, to write to her now and declare she disappointed you by not turning up. Your deliberate emotional agitation in your letter is unwarranted.
…………
If you’re concerned about whether [the younger daughter] has a birthday party this year, feel free to post a cheque to me to cover expenses and I’m more than happy to arrange something really fabulous for her.’
In January 2005 the father instituted proceedings in the Local Court seeking orders for contact with both children. A number of directions and interim orders were made over the months to follow:
·On 4 February 2005 a separate representative was appointed, directions were made for the filing of affidavits, and the matter adjourned for hearing in late February. The hearing was later rescheduled for mid-March.
·However, on 16 March 2005 an interim order was made for the children to have contact with their father on specified days, the elder daughter’s contact being contingent on her wishes, and the matter was adjourned to a date in April for mention.
·On 19 April 2005 further interim orders were made by consent providing for the children to live with their mother and have contact with their father on certain dates with any further contact to be as requested by the children or as agreed in writing and, again, the elder daughter’s contact with her father was to be subject to her wishes, while her mother was obliged to use her best endeavours to encourage the elder daughter to have contact.
·On 16 May 2005 these orders were repeated save that other specific days were substituted.
Around this time there was discussion of counselling by family relationships specialists for the children and the mother suggested in her letter of 11 May the engagement of Ms J. It was also in the course of those proceedings that Mr B prepared the report made available to Ms G who accepted in the course of her cross-examination that his report had described the relationship between the elder daughter and her father as a normal father/daughter relationship and it had related the elder daughter feeling she might betray her mother if she were to demonstrate enthusiasm for contact with her father.
On 22 June 2005 the proceedings were finalised by consent orders. They provided for the parents to have joint decision making responsibility and the children were to live with their mother. Provision was also made for the younger daughter to have contact with her father every fourth weekend during school terms from 9am Saturday to before school Monday, during the short school holidays from Monday to Friday, and for two weeks in January [all expressed to be extended if the younger daughter wishes] as well as on certain specified special occasions. As for the elder daughter, expressed to be subject to her wishes, she was to have contact with her father on Saturdays from 9am to 4pm when the younger daughter is with her father, the first day of the younger daughter’s school holiday contact, and at any other time she wishes.
This did not see an end to the troubles and the time spent by the elder daughter with her father was minimal. Indeed, it is the father’s evidence, not disputed, that since the orders were made he has seen the elder daughter on only 15 occasions. Indications of the difficulties are to be seen from his letter of 23 August 2005 to her mother expressing his concern ‘that [the elder daughter] continues to show such reluctance to have contact with her father’, he said he would be prepared to do anything which could assist, and told her he would welcome the possibility of taking up her earlier suggestion about engaging Ms J.
In October that year there was a father/daughter breakfast at the elder daughter’s school and it became the subject of disagreement. The father wrote to the children’s representative on 19 October 2005 seeking her intervention to see the elder daughter’s attends. As is apparent, he had discussed this with the elder daughter [again this raises the issue of planning arrangements directly with the children without confirming it first with their mother]. Essentially it is his position that the elder daughter agreed to go, this had been confirmed with her later, but the mother then said to him ‘You won’t be taking [the elder daughter] to any father/daughter breakfast until you start paying fees.’ The response of the children’s representative produced a further letter from the father on 21 October and a reply refuting his interpretation of their exchanges.
In any event, it is clear that difficulties continued notwithstanding the June orders. In November the father arranged to take the younger daughter and one of her friends horse riding, but this was later called off. His letter of 23 November reflects the arrangement was made with the younger daughter directly while she was visiting him in the company of her friend. The younger daughter later told him she had spoken to her mother about it and the date of the proposed outing did not present a problem. But when he visited the younger daughter’s school the day before with her friend’s consent form, she told him her mother had decided she could not go. In his letter he said, amongst other things, he saw the order giving the children the election to have contact with him as unworkable and that it would have to change, preferably by a working relationship rather than a return to court and he sought her suggestions in finding a solution.
By her reply the following day, the mother told him that if he continues to put ‘harrassing letters’ in her mailbox she will seek a restraining order. She related difficulties about the changeover for the younger daughter’s visits and commented on what she regarded as his ‘long standing depressive state’. Specifically in reply to his letter, she suggested he review the orders and write down his contact weekend dates, she reminded him that if he wants to arrange horse riding then it should be done on his next weekend under the orders, and if he wishes to make arrangements outside the orders to please notify her. She asked that he not put the children in the middle of unnecessary conflict by ‘deliberately and directly arranging contact outside agreed times and expecting them to broker the arrangements with the parents’.
There was conflict about the holiday arrangements in the following January. The mother advised by handwritten note dated 6 January their holiday would be extended and they would return on Sunday 15 January. He replied by letter that same day confirming his SMS to her: ‘If the children don’t turn up at 9.00am on the 14^th January I will apply for contravention order immediately’. He added that her failure to provide telephone contact for the children over the previous three weeks would be added to the order.
On 21 March 2006 the father instituted further proceedings in the Local Court. Amongst others, he sought orders for joint decision making responsibility, the children live with their mother, the daughters have set periods of contact with him, though for different duration, the younger daughter to be enrolled at a particular high school in 2008, and the mother be restrained from instructing the Principal of the elder daughter’s school to refuse his contact with her teachers.
He later withdrew those proceedings. As he explains it, this was because the mother had agreed to go to counselling, something he had been urging for some time, but she reneged on the agreement and so he instituted further proceedings in June 2006.
In the meantime, in late May 2006 there were difficulties surrounding the younger daughter’s attendance at a school camp. In essence there was a proposal that the younger daughter return early from the weekend with her father to prepare for the camp and the early return would be compensated by going to her father’s earlier ie on Friday evening. However, the father did not agree and he expressed his view in a letter delivered on 30 May 2006:
‘With regard to this coming weekend I have heard of your request to change contact via [the younger daughter] today. You have not contacted me regarding this change. I have an engagement on Friday evening and your proposed change would be inconvenient. The contact arrangements will remain as per the Court Order. I look forward to taking [the younger daughter] to school for camp. If she cannot being her bags for camp with her on Saturday you might consider dropping them off here Sunday.
Next school holidays start on the 30^th June. I am taking [the children] away to [S](tel […]) where they have both gone many times. The holidays will start on the 1^st July and we will return on the Sunday the 9^th July. This arrangement has been made with other families and and deposit has been paid. If [the children] is not here on Saturday at 9am the 1^st July I will be leaving regardless. If I don’t get your confirmation that they will attend then I will let the other family have the spare room.’
The mother’s response of 31 May:
1. [The younger daughter] has requested she return here on Sunday evening prior to her leaving for camp. She has said to me that she has discussed this directly with you. She would prefer not to have the contact weekend at all if you won’t allow her to have Sunday evening here. It would appear to be a simple enough request. She has suggested the Friday night as a make-up option for the Sunday.
2. [The younger daughter] has said she doesn’t want to go away during the holiday period and would prefer to stay with you in Sydney. [The elder daughter] has also said she doesn’t want to go away.
[The younger daughter] has also said she’d prefer the Monday to Friday week as per the holiday agreement rather than roll in the contact weekend at the beginning of the week.
Note the contact holiday period finishes at 5pm on the Friday – not on the Sunday as per your letter.’
Asked about the school camp in cross-examination, the father was unable to agree with the suggestion that it was reasonable for the younger daughter to return home to prepare for her departure. As he explained it, her mother had not contacted him with any change and the proposal meant he would lose time which is minimal now. On 5 June 2006 he filed a contravention application alleging failure to provide contact on 3 June.
On reinstituting proceedings in the Local Court on 30 June, his proposals for orders were lengthy but included contact with the younger daughter every fourth weekend and during school holidays and for contact with the elder daughter to be subject to her wishes but at times during the day as nominated. By her response filed on 15 August 2006 the mother sought the dismissal of the application and costs. Subsequently the proceedings were transferred to this Court.
Difficulties continued, including difficulties the father alleged in establishing telephone contact with the children and in establishing a means of communicating with the mother.
A psychologist, Ms H, became involved at some point at the mother’s instigation in that she was approached to undertake counselling with a view to facilitating the relationship between the elder daughter and her father and to examine how he might assist the elder daughter develop confidence within the relationship. In her letter of 29 August Ms H referred to the father’s request for joint counselling for the parents to precede any other counselling but she said in experience that is better undertaken after some work consistent with the recommendation of the child consultant working with her. Ms H’s letter concluded:
‘However as we discussed I will continue to assist you in addressing these important issues in relation to [the elder daughter’s] self confidence as identified through our Child Consultation process. As mentioned I will contact you to discuss what options are available to assist [the elder daughter] in this regard once I have researched appropriate services……..’
In early September correspondence exchanged about horse riding at the weekend [other than per the court order] saw the same continuing issue of the father’s request about a particular arrangement met with a request from the mother that arrangements for non-contact weekends be raised with her before the younger daughter. The father wrote a response recording the refusal and reiterated that she is welcome to call him at anytime to discuss. However, this overture has to be seen in the context of the following and concluding paragraph:
‘In the meantime I hope you have considered carefully the effect on your health of protracted litigation with me over the children. I have told you before I am ready at anytime to come to an appropriate working relationship with you over the parenting of our children and contact. I can assure you that this path would have significant benefit for you and your long term health.’
Later that month there was further correspondence exchanged about the younger daughter going with her father on a trip to S at the end of the month. Her mother’s response pointed out he had not given the required 14 days notice to take the younger daughter outside Sydney, and this was followed by further correspondence and the involvement of solicitors, the upshot being that he had the younger daughter for a shorter period as the holiday began on Monday rather than Saturday as he had proposed.
Around that time there was other correspondence exchanged about a passport for the younger daughter to accompany her mother on a trip to New Zealand. The father pointed out in his letter of 27 September that the mother had asked him on many occasions to approach her directly about arrangements rather than raise it directly with the younger daughter and yet the younger daughter had raised the passport approval directly with him on her mother’s request. He called her attitude to communication ‘two faced’.
On 6 October Ms H provided an outline of key recommendations made through the child consultation process undertaken with the children. They were these:
·That a course of counselling be undertaken to build skills within the relationship between [the elder daughter] and [the father], so that [the elder daughter] can develop greater confidence within this relationship. It was indicated through the child consultation process that [the elder daughter] finds it difficult to assert herself in her relationship with [the father], which may impact negatively on the time she spends with him. The Consultant strongly recommended that this work be undertaken to benefit the relationship so that [the elder daughter] has the opportunity to feel more confidence and secure when spending time with her father. This counselling would involve initially [the father] and [elder daughter], and at the discretion of the therapist, [the younger daughter] and [the mother] where appropriate.
·That [the mother] support the relationship between both girls and their father, particularly throughout the recommended counselling process. The Child Consultant has also recommended some literature for [the mother] to read which may assist in her supporting [the elder daughter] in particular.
·The Child Consultant noted that [the younger daughter] enjoys her time spent with her father however there was nothing to indicate that this time should be increased or decreased at this time for [the elder daughter].
The father did not take up the recommendation about counselling with the elder daughter. He maintained his position that joint counselling between the parents was the agreed objective and he would not agree to this path with the elder daughter unless that occurred first. As he saw it, there could be no useful outcome otherwise.
In the meantime the court proceedings made their way towards final hearing. On 2 November there was a joint case assessment conference and on 13 December the matter was set for hearing with directions for a report from Ms G and for the filing of affidavits.
This was followed by further dispute about holidays. This comes from the father’s letter of 21 December 2006:
‘I refer to your letter dated 13^th December about the coming holidays which was delivered to my letter box this morning by hand (i.e. your letter is 8 days out of date).
There was no conversation between you and myself in Court on the 13^th December 2006. On two occasions I attempted to speak to you outside Court and you walked away.

There was further correspondence exchanged demonstrating the younger daughter was still involved in carrying messages between her parents. The father’s letter of 1 January 2007:
‘I refer to your letter above delivered here by hand by [the younger daughter] on Christmas Day without an envelope. Your mother was recently critical about my delivering letters to your letterbox without an envelope. You might like to take the time to consider the implications of your requiring [the younger daughter] to deliver a letter by hand unsealed……’
It will be apparent from what has been said that the arrangements for the children to spend time with their father have differed and continue to differ for each child. The elder daughter’s contact with her father continues to be sporadic and quite minimal. As she described it to Ms G, she spends time with him ‘sometimes weekly and sometimes fortnightly’ during the day only, but both parents say this is an overestimate and, as noted earlier, it is not contested that her father has seen the elder daughter on only 15 occasions since the 2005 orders. The means by which the visit is brought about is that when she wants to see her father she either telephones him or she tells the younger daughter who passes the information on to her father. The younger daughter’s visits to her father occur every fourth weekend from Saturday until Monday mornings as well as during school holidays.

Orders now sought

The orders the father now seeks are to be found not in the application filed earlier in the Local Court but in exhibit 1 tendered at the outset of the hearing. In summary, he proposes the younger daughter live with him every second weekend during school terms from after school Thursday to before school Monday, for half of the school holidays, and on other special occasions nominated. So far as the elder daughter is concerned, he seeks an order that she live with him from 9am Saturday to 4pm Sunday during school terms when the younger daughter is with him, on the first day of school holidays when the younger daughter is with him, and at other times the elder daughter wishes. This represents a change from his proposal in discussion during the report interviews where he indicated he was happy to see the elder daughter during the day and was not pressing overnight. He proposes other orders related to implementation and certain obligations to be imposed on each parent. As the father sees it, orders defining the children’s time with him are necessary and there ought to be no provision for the children to make that decision as that puts pressure on them and permits their manipulation by their mother.
The mother’s response is to be found in exhibit 5. That proposes the younger daughter spend time with her father every third weekend during school term from after school Friday to before school Monday and for one half of the short school holidays and for three weeks during the Christmas holidays as well as other specified special occasions. This is a change from her earlier position of one in four weekends. She does not propose that the elder daughter’s time with her father be the subject of any court orders. Ms G in her evidence said she was aware at the end of the interviews the mother would be prepared to consider a change from her initial proposal about the younger daughter. Other orders proposed by the mother are directed to implementing the arrangement and she seeks to impose certain obligations on the father about communication.
The children’s independent lawyer, through counsel, tendered proposed orders at the outset of the hearing and that position did not change after the evidence concluded. It adopts the recommendations of Ms G and is in similar terms to the revised arrangement proposed by the mother, with some minor cosmetic differences of no real moment.

Legal principles

The concept of best interests of the child, the paramount consideration in making a parenting order [s 60CA], is at the heart of the legislation and there are a number of statutory provisions related to it. The stated objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. These objects are supported by a number of underlying principles which, except when it would be contrary to a child’s best interests, acknowledge a child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)]. Against the background of those objects and underlying principles, the determination of best interests requires regard to be had to ‘primary considerations’ which reflect in part the objects just mentioned: the first is the benefit to a child of having a meaningful relationship with both parents and the second is the need to protect the child from physical and psychological harm [s60CC(2)]. It also requires regard to be had to a number of ‘additional considerations’ which are wide ranging and in some instances their meaning elaborated upon in other sub-sections.

Key considerations

The evidence raises several key considerations. There is no question of risk to the children’s physical safety and so that aspect of the primary considerations can be put aside. There is a question of the need to protect them from psychological harm. As Ms G assesses it in her report, the involvement of the children in extremely destructive and protracted conflict and the parents’ inability to constructively communicate is psychologically abusive to both children. Regrettably, she was unable to be optimistic about any improvement in the parental dynamics, despite the suggestion of a more recent civil exchange between them, and she came to the rather unusual opinion that counselling was unlikely to be of any assistance in bringing about change.
The other relevant primary consideration in assessing the children’s best interests is the benefit to each child of having a meaningful relationship with both parents. It is accepted as a matter of principle that each child would benefit from such a relationship with their father but there are a number of other considerations which have to be assessed in the particular circumstances of this case and weighed in the overall balance.
Not unexpectedly, the children’s views are an important consideration and that will involve also an assessment of the weight to be given to their views having regard to their ages and level of maturity. As the father contends their views are unduly influenced by their mother - indeed he maintains their wishes are the result of manipulation by their mother to align them with her hostile attitude towards him, motivated by her dislike of him and her desire for the children not to spend time with him – it will be necessary to consider the support for that. Allied to the children’s views is the nature of their relationships with each parent, another important consideration to be evaluated. Other considerations made relevant by the evidence are the parents’ willingness and ability to foster the children’s relationship with their other parent, their appreciation of the impact on the children of the ongoing conflict between them, their ability to advance the children’s interests by constructive communication, and their respective capacities to meet the children’s needs. It will also be necessary to consider whether it would be preferable to make the order least likely to lead to further proceedings.

Best interests

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) ….relevant to the weight it should give to the child’s views

In her discussions with Ms G, the elder daughter said she wishes to be able to spend time with her father whenever she likes and she does not want a set arrangement. Asked what she could ‘live with’ if the time was to be defined, she tentatively suggested once a month during the day and the odd Friday for the afternoon. Pressed further, she reluctantly explained the odd Friday could be from after school Friday until 10pm every third week. She also indicated she would not have a problem with her father attending her touch football games on Saturday mornings, though she would worry if both parents were present and there were tension or conflict between them. Nor did she identify any difficulties spending time with her father on special occasions such as Christmas and birthdays.
As for the younger daughter, while she is aware her father would like her to spend more time with him, she told Ms G she wants the current arrangement [one weekend in four] to remain – ‘because I am used to it’ and ‘I like it’ - but she wants the ‘freedom’ for him to take her to activities if her mother is busy. Asked about the problem in spending more time with her father, she said ‘I am closer to Mum’ and ‘I am used to being with Mum’. Asked about the possibility of spending some mid-week with her father, she thought this would be possible if she could get her homework done but it was not her preference. As she related it, her mother would not see that as a problem; what her mother objects to is her father making arrangements directly with the younger daughter without first consulting her mother. Pressed about moving away from her preference and what she could ‘live with’, the younger daughter thought perhaps every third weekend and while her preference would be two weeks at Christmas holidays, she would consider three weeks. However, she added ‘I wouldn’t want the Judge to increase the time with Dad but I want the freedom to ring him up and arrange something else.’
The father does not accept that the elder daughter’s views are her own. He regards the elder daughter’s learning difficulties render her vulnerable to her mother’s wishes and thus little weight should be put on the views she expresses. He is steadfast in his belief what she says are her mother’s views and he regards it as wrong to say they are not the result of coaching by her mother or fear of her mother. The history of living so close to her mother with little outside influence, as he put it, means she will express views to comply with her mother’s position. He concedes her views may possibly be attributable to her experiences of him, but he is unable to exclude influence from her mother in the mix. He describes the elder daughter as ‘fragile, vulnerable and shy’ and he doubts she has sufficient level of maturity to freely express her own views. That might change when she is about 20 years of age, but not at this stage. In his opinion, if orders are not made regulating the elder daughter’s contact with him, the opportunity to at least try some contact on a continuing basis will be lost.
The father describes the younger daughter as assertive and strong. He acknowledges his application for her to spend every second weekend with him is inconsistent with her expressed views, but he insists what she says about the frequency of visits must be coming from her mother and the younger daughter would not contradict what her mother wants her to say.
Despite this, I am satisfied Ms G’s assessment of the genuine nature of the children’s views and her observations of their autonomy and levels of maturity, outlined in the following, can be relied upon:
·Ms G found the elder daughter to be quite articulate and clear in her views and of sufficient maturity for her views to be given considerable weight. Ms G acknowledges that in circumstances of extreme parental conflict, as here, it is unrealistic to exclude the possibility of parental influence on a young person’s views about their arrangements, but she assessed the elder daughter’s views to be primarily her own and not the result of coaching or fear of her mother’s reaction. She considers the elder daughter’s preference to be developmentally appropriate and it is by no means unusual that a young person of her age would want to have flexibility and choice. The elder daughter was able to articulate her thoughts and feelings, she was thoughtful and considerate in responding to questions put to her, she impressed as wanting to give a balanced account of her experiences, and she was willing to consider options inconsistent with her views. These were all qualities demonstrating a degree of emotional maturity that many adults cannot muster in situations of high emotional intensity and conflict.
·Ms G regards the younger daughter as articulate about her preference but also willing to explore alternatives. She is assessed as being of sufficient maturity for some weight to be given to her views, but she remains of an age where adults still need to make decisions for her. She commented: ‘It is important for [the younger daughter] to feel heard but not burdened by decision making responsibilities.’ The younger daughter did not present as overly aligned with one parent at the expense of her relationship with the other; rather, as a young person in a very difficult predicament. Her wish for some freedom and flexibility is developmentally appropriate and by no means unusual given her age. However, flexibility is likely to be impossible for her parents to implement because their communication is so poor.
Ms G noted both girls were reluctant to discuss their views with their father. He dismisses this as unrelated to reality – on his view of it they are afraid to go against their mother’s wishes - but this is not the assessment made by Ms G from her discussion with the children.
(b) the nature of ... relationships with each parent…
Turning to Ms G’s account of the children’s discussion of their mother, the elder daughter related feeling close to her mother and able to trust and talk to her. That is not to say she has a rose tinted view of her mother because she did offer some critical observations, describing her mother at times as ‘cross and bossy’, at times she ‘overreacts too much’ and she ‘sometimes tends to have frequent mood swings’ when she can be ‘aggressive’ and ‘cries a lot’. The younger daughter says she feels more able to talk to her mother about ‘everything’ especially ‘really personal things’, she feels her mother understands her more and described her mother as ‘a happy, kind and nice person’.
As for their discussion of their father, the elder daughter described her father as ‘sometimes really fun’ and ‘happy and nice’ but, like her mother, at times he can be ‘really cross’ when he is ‘demanding, he wants to do things his own way, he doesn’t allow me to do the things I want to do’. Yet she says she feels able to discuss and negotiate with him though at other times she goes with his options. She described him at times as becoming ‘overworked about the situation [meaning this dispute]’ and that he ‘tends to take things quite seriously’ and ‘tends to make a big deal about a lot of things.’ Similarly, the younger daughter described her father as ‘happy most of the time’ and as ‘quite funny’; however, there are also indications she experiences difficulty when he is in a ‘bad mood’ when she tries to ‘get him out of it’.
As is apparent, each was able to give quite a mixed account of how they see their parents, rather than present some idealized view. But overall it can be said that they both have an easier, closer relationship with their mother which is unsurprising given the family history. Certainly the girls have quite a different relationship with their father, which they are aware of, though Ms G noted this did not appear to be an issue for the girls.
The elder daughter’s relationship with her father remains somewhat problematic and the history of that fracture goes back a long way now. It was effectively broken down for a long time when there was virtually no contact between them. This has to be a significant contributor to how things now are between her and her father. That she should have a closer relationship with her mother is entirely understandable in the circumstances and it also stands to reason that she would become more aligned with her mother's views. But that does not mean she is a puppet of her mother without the maturity and sensibility to have opinion of her own, borne out of her own experiences, including her experiences of her father and her feelings about his virtual absence from her life for a long time at a crucial stage in her development.
Asked about his views on his contribution to the current state of his relationship with the elder daughter, the father acknowledges his long absence. He says he did not know how to address her issues at the time and that he may have done things wrongly. What he means by that, as he explained, is that he may have been wrong not to encourage her to stay over and tell her not to be anxious about separation from her mother. He explains his letter addressed to the elder daughter in 2003 or 2004 when she was 13 or 14 years of age as being sent when he was frustrated and angry, it had come to the point where he was getting nowhere with her mother or with the elder daughter, and he thought it might be a spur to getting a response.
Undoubtedly there have been a host of influences, probably including personality factors, leading to the diminished quality of their relationship now. And yet there is nothing to give any real cause for confidence that the father recognises in any real way his contribution to that result because he remains steadfast in his insistence that the blame for all past and current troubles lies squarely at the feet of her mother.
(f) the capacity of … each of the child's parents … to provide for the needs of the child, including emotional and intellectual needs
Subject to later observations, I am satisfied the mother is a capable and caring mother, able to meet the children’s needs. She has provided well for the children over the years they have been in her care. She was virtually their sole carer for the long period their father elected not to spend regular time with them which must have been an emotionally troubling time for the children. The support and stability their mother provided to them must have nurtured the close relationship both have with her now. She has also taken much of the financial responsibility for their support and upbringing, including their education, as the history of child support shows. By the children’s own perception of their mother, she is sensitive to their needs for the most part.
Ms G describes her as strong willed and having firm views about what she considers best for them and yet, unlike the father, she is capable of considering options for the children other than how she would prefer things to be. One example of this is the change she was able to make to her position after Ms G’s recommendations were published. This suggests some ability to separate her own needs from those of the children or, to put it another way, to recognise that her own issues do not necessarily mirror the children’s issues.
Turning to the father, it is accepted that he loves his daughters. In all probability when he made the decision to cease regular contact with them some years ago he was emotionally fragile and unable to deal with the situation as he saw it. He presents now as a parent committed to achieving outcomes he regards as consistent with the children’s best interests, and that includes the making of court orders adopting his proposals about their arrangements to spend time with him. He believes his relationship with the children has been, and is being, undermined by their mother’s influence and there is no reason to doubt the genuine nature of that belief. Yet it is apparent he has a major difficulty considering in any realistic way the contribution he has made either to the quality of his relationship with the children or to the poor state of communication between himself and their mother. The evidence allows the following findings:
·Ms G assessed him as rigid and uncompromising in his thinking about the dispute surrounding the children’s arrangements and that assessment is accepted as sound given it was borne out by his presentation at the hearing.
·He does not demonstrate any recognition of the potential harm, for example, of having written to the elder daughter at a time when he was not seeing her in the terms of his letter intercepted by her mother. As Ms Boyle pointed out to him in cross-examination, this was a letter he intended be read by his daughter whom he describes as a ‘shy, fragile vulnerable’ girl. Nor was he as attentive as he might have been to special occasions for the elder daughter such as birthdays or other important events for her such as exams.
·His refusal to take up the Ms H proposal for counselling to start with the elder daughter was undoubtedly motivated by his belief that it would be to no avail without parental counselling first, but his attitude leaves little doubt he saw joint counselling as a means by which the mother might be brought to see things his way rather than any openness on his part to the possibility that he might revise his outlook or shift his position in some way. No one can say whether the rift with the younger daughter would have been repaired or what the outcome would have been had he taken up the counselling opportunity, but he shut off the possibility.
·As his own evidence demonstrates, he is unable to consider the prospect that the children do not experience their mother in the same way he does and he is not amenable to seeing things from any perspective other than his own if this would shift the focus of blame away from their mother. This leaves the distinct impression he is unable to appreciate the children’s predicament or, significantly, respect their point of view if it differs from his own.
·It adds up to a total picture of rigidity and limited insight and that inhibits his ability to meet the needs of the children.

What both parents share in common to one degree or another is the damage from sustained high level conflict around which the children have been required to negotiate their way for many years. The history is telling on them, and both had some advice for their parents: the elder daughter wants them to relax more and become less worked up about issues; the younger daughter’s advice is ‘don’t let off steam on me’. It is also accepted, through Ms G assessment, that the younger daughter regards the role of ‘message taker’ - a long standing and ongoing dispute apparent from the correspondence - as a burden and stressful.
That said, both parents were able to acknowledge to Ms G the detrimental impact of the conflict on the children and it is recognised there was some slight rapprochement in their dealings with the other in the period leading up to the hearing. But while the benefits for the children of any positive change is not to be diminished and therefore discouraged, the depth and long standing entrenched nature of their problematic communications means it would be over optimistic to be confident of any real change in the future. The tone and content of letters spanning many years gives no cause for optimism and if that is indicative of what the children are exposed to, either directly or indirectly through aside or innuendo, then their predicament is all the more poignant. Hopefully the pessimism is misplaced, but the outcome here has to be assessed from that standpoint.
(c)the willingness and ability…to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(i) the attitude to the child, and to the responsibilities of parenthood…
[as expanded by s 60CC(4)]
The mother acknowledges she does not like the father and she accepts the children would pick up on her attitude. But she maintains, despite the father’s unshaken belief that his relationships with the children are undermined by her and they are overborne by her views, she has done all she can to facilitate the children’s relationship with him. She acknowledges they love him and she agrees he can be ‘fun’, but she is concerned nonetheless by the turn of some past events, his health history, what she regards as his volatile personalty, and his failure to takes responsibility for any difficulties.
From Ms G’s point of view, the mother is wary and hesitant about increasing the time the children spend with their father but not opposed to that happening. One fundamental indicator of that is her ability to look at options other than her own preferred position rather than maintain a fixed attitude about it. Ms G points out that the children have been positioned between the opposing views of their parents for a long time and yet they have not developed the polarised positions that can result from exposure to high and sustained parental conflict; that is, where children become strongly aligned with the parent who has predominantly cared for them and antipathetic in their attitude towards the other. In their quite different ways and subject to the obvious interruption evident from the history, these children have both continued their relationship with their father and both have rather balanced views about their parents. Also, while they each have definite views about their arrangements and preferences, neither is entrenched in their views and each could contemplate what they could ‘live with’ even though it would not be their preference. In Ms G’s assessment, this balanced outlook of their parents, their capacity to compromise and their amenability to negotiation about their arrangements inconsistent with their clear preferences says something about their mother’s support for their relationship with their father and that should be recognised.
I agree. It is also to be borne in mind that contact as ordered has occurred with little deviation and where that has been sought the circumstances have not been unreasonable. It is true she has resisted face to face communications with the father but the tone and content of the correspondence makes it difficult to render that position unreasonable in all the circumstances. In my opinion, the mother could not be described as an ‘unwilling parent’ in any sense that would see this consideration weigh against her.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings…
The course of litigation about the children’s arrangements since the separation has been outlined. After this time and given their ages, the children need to put the dispute behind them and focus on those other things that are important to their development and will assist them as they move towards independent adulthood. It is relevant to their interests, when considering any particular arrangement for their future, whether that may lead to the institution of further proceedings. The children’s respective ages and level of maturity as already discussed and their preferences, as also discussed, become relevant here; for example, if either girl were put in a position where they did not feel they could fulfil the arrangement imposed by court order, the spectre of contravention proceedings may arise and it is desirable for that kind of development to be avoided.

Parental responsibility

One of the orders the father seeks is for equal shared parental responsibility which, as defined by the Act, is about major long term decision making.
The long history of conflict and an obvious lack of any means of communicating in a constructive way about the children’s arrangements suggest this would be unworkable. There has been no demonstrated ability by the parents to make decisions jointly and nor has there been anything giving rise to confidence in future change. All of the evidence points in the direction of it being impracticable and inappropriate to make such an order. Were an order about parental responsibility to be made, the only practical result would be to allocate sole parental responsibility to the mother as the children live with her. However, that is not part of her proposals in exhibit 5. Her proposed order 3 is about each parent having responsibility for making decisions about the day to day care, welfare and development of children while in that parent’s care. That seems to hark back to legislation before the more recent amendments and is unrelated to parental responsibility as now defined in the amended Act operative since 1 July 2006.
In summary, the father’s application for equal shared parental responsibility could not succeed on the facts of the case and the mother’s application does not seek such an order in her favour; accordingly, no order will be made about parental responsibility.

Best interests

Taking the younger daughter’s arrangements first, there are several options for consideration:
·One option is to adopt the father’s proposal of one in two weekends, half the school holidays and special occasions. But, all things considered, I am unable to see this as compatible with her best interests. The younger daughter was described as somewhat reluctant to make any change to the current arrangement and as being more hesitant than the elder daughter to look at options beyond her preference. Of course in assessing her interests, the decision about frequency needs to weigh all of the considerations addressed earlier but it needs to be positioned so as to harness her willingness and co-operation rather than attract resentment and reluctance, to ensure the time is enjoyable and beneficial for her. So while some increase in frequency can be contemplated for her, to increase it beyond what she identifies she could ‘manage’, removes it that much too far from her express preference to be comfortably satisfied it would deliver the best arrangement for her.
·Another option is to leave the current one in four weekends during school terms in place plus half the holidays and other special occasions. That is the younger daughter’s expressed preference and, all assessments considered, is one that suggest her best interests would be met by adopting it. It maintains regular involvement with her father with an appropriate mix of school term and school holiday arrangements and there could be additional time by arrangement provided that was given a proper structure, according to her wishes. Yet while this is appealing, in the final analysis it can be put to one side. That is because her mother’s revised application, Ms G’s recommendation, and the independent children’s representative all propose a more frequent school term arrangement of one in three weekends.
·A third option is to adopt that proposal. It is accepted G enjoys spending time with her father and there is no doubting the importance of her relationship with him, but she also needs to have her point of view respected in as much as that is consistent with her best interests at this age and stage of her development. All things considered, one in three weekends during school terms is the limit of the change I am prepared to make.
It remains to consider when that weekend visit should begin – Friday evening or, as her father’s application seeks, Thursday evening. The former would represent an extension of the weekend as defined in the current arrangement and the latter would extend it even further. However, again, extending it to begin Friday is the limit of the change I am prepared to make. Despite her preference for there to be no change, the weekends will be increased in frequency and bound up with that is the proposal that those weekends being earlier than has been the case to date. To go this further step and make it a four night stay would be to stretch it too far to feel comfortably satisfied G’s interests are being met. The orders will provide for one in three weekends to begin on Friday afternoons during school terms.
Turning to the elder daughter’s situation, the initial question is whether there should be orders specifying the time she will spend with her father. As is apparent from earlier discussion, the elder daughter was taken by Ms G through the process of examining options and discussing what she might be able to ‘live with’ and the elder daughter did identify an arrangement, when put on that basis, she could manage. On the one hand, the making of orders consistent with that may have the advantage that she would not have to negotiate between parents who cannot communicate or agree about anything of importance at a stage of her life where her schooling is important to her independent future and she is keen to do well. In other words, by making an order consistent with what she said, when pressed, she could manage, that might allow her to focus on her schooling and her future rather than be caught up in her parents’ conflict.
But there are other considerations. For example, Ms G expressed some concern she may have pushed the elder daughter a little too much and her response may really be a reflection of her desire to have the situation resolved. If, with the opportunity for reflection outside the reporting environment the elder daughter adheres to her preference rather than this secondary position, then there is the possibility she will not comply with the arrangement and that, in turn, raises the possibility of further parental conflict, conflict between her and her father, and even perhaps further proceedings in an attempt to secure compliance. All of that is to be avoided for obvious reasons. If there are no orders the risk is there will be little if any contact between the elder daughter and her father and that is an important consideration.
Ultimately, at the age of 17 years and with the maturity she has and at her particular stage of development with her schooling and her desire to do well, I have concluded the better option for the elder daughter is to make no orders about her arrangements. Not only do her views need to be respected, there can be no conflict between her parents about her arrangements, she can get on with her studies to develop her own potential as an individual, and she can make whatever arrangements she sees as appropriate with her father. Any alternative is likely to be more detrimental to her well-being and certainly making orders as sought by her father would not be to her benefit in all the circumstances discussed.

Form of orders

Around that framework the orders will provide some necessary detail about timing and facilitation which need no explanation. What does need some further comment are the proposals about counselling that arose from Ms G’s report.
First, in recognition of the complexities and difficulties for the elder daughter, whatever option is adopted, Ms G recommended individual therapy for the elder daughter. That sounds like a reasonable path to be taken in all the circumstances but I do not propose making any orders about it. The elder daughter received counselling in the relatively recent past through Ms H’s practice and it may be that counselling, or some other counselling support, would be beneficial to her. But in my opinion the judgment about that is best left to the parent with responsibility for her care.
As for counselling for the elder daughter and her father, the opportunity was missed when offered by the elder daughter through Ms H’s involvement. I agree with Ms G that this is unlikely to be helpful to the elder daughter at this stage because, I regret to say, there is nothing to suggest her father has the ability to change his way of looking at her situation or of considering there might be a perspective other than his own. Absent that kind of flexibility driven by some insight into the contribution he might have made to how things are, change is unlikely. It is more probable the elder daughter would be required to confront the same agenda of her mother being the author of the troubles in their relationship and place on her the need to address her father’s perspective and somehow persuade him she is not a puppet of her mother’s.
As for counselling between the parents, it is Ms G’s assessment that the parental relationship is irretrievably fractured and it is unrealistic to think that further attempts to improve the situation will work, though improvement would benefit the children. Therefore she does not recommend further counselling between the parents. I am in complete agreement with that assessment. All of the indicators are that it would be highly unlikely to produce any positive outcome and can only continue the opportunity to maintain completely opposed views of the other as the source of problems. Counselling is always available to parents and needs no court order if both bring the necessary commitment to compromise and change.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date: 21 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as LYNDON & LYNDON

[2007] FamCA 459

21 May 2007

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