Manrow & Manrow
[2021] FamCA 391
•6 July 2021
FAMILY COURT OF AUSTRALIA
Manrow & Manrow [2021] FamCA 391
File number(s): SYC 7667 of 2012 Judgment of: REES J Date of judgment: 6 July 2021 Catchwords: FAMILY LAW – PARENTING – Application relating to spend time arrangements – Where prescriptive spend time orders may negatively impact the child’s relationship with his father – Orders for the child to live with each of his parents during school terms and holidays according to his wishes – Mother to have sole parental responsibility over education only. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Godfrey & Sanders [2007] 208 FLR 287
Mazorski & Albright [2007] 37 Fam LR 518
McCall & Clarke (2009) FLC 93–405
Moose & Moose (2008) FLC 93–375
Number of paragraphs: 145 Date of hearing: 1-3 June 2021 Place: Sydney Applicant: Self-Represented Respondent: Self-Represented Solicitor for the Independent Children's Lawyer: Ms Norris, Legal Aid NSW ORDERS
SYC 7667 of 2012 BETWEEN: MS MANROW
ApplicantAND: MR MANROW
RespondentLEGAL AID NSW
Independent Children’s Lawyer
ORDER MADE BY:
REES J
DATE OF ORDER:
6 JULY 2021
THE COURT ORDERS:
1.That J born … 2006 live with each of his parents in accordance with his wishes.
2.That the mother have sole parental responsibility for decisions relating to J’s education.
3.That the parents otherwise have equal shared parental responsibility.
4.That within three months of the date of these orders each parent pay to the Legal Aid Commission of NSW costs in the sum of $4,965.
5.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manrow & Manrow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Manrow (“the mother”) and Mr Manrow (“the father”) are the parents of three children, B who is an adult, N who is 16 years old and the child who is the subject of these proceedings, J who was born in 2006 and is almost 15 years of age.
The parents have agreed that no orders should be made in relation to N.
The mother seeks orders in relation to J which would provide for the parents to have equal shared parental responsibility and for J to live with each of his parents during the New South Wales school terms in accordance with his wishes. In relation to the holidays the mother seeks orders that would provide for J to spend half of each school holiday period with each parent but the configuration of that time would be left to J.
The father seeks orders which would provide for the parents to have equal shared parental responsibility and for J to live with each parent, during school terms, on a week about basis. The father seeks specific orders in relation to education in the following terms:
3. That in relation to the Education of J
a.That the parents do all such things as are required to have J undergo external V Centre Psychological Testing and to have a Psychometric Test as recommended by J’s school, to be paid for by the father, and in the event the parents are unable to agree as to a suitable testing expert then as recommended by the school
b.That the parents follow all reasonable recommendations as may arise from such testing, concerning J’s education.
c.That the mother ensure that J’s homework is completed and submitted on time whilst he is in her care.
d.That the father be entitled to continue to engage in suitable private tutors for J to address educational issues, at his expense, and the mother shall cooperate and ensure that J attends such tutoring at the father’s residence, including when J is living with her.
(As per the original)
Further, in relation to holidays, the father seeks orders which are structured and proscriptive in the following terms:
4. …
b.THAT J live with each of his parents for one half of the end term 1, 2 and 3 school holidays as follows:
i.For the end terms 1, 2 and 3 school holidays, unless agreed in writing otherwise, J spend the first half of such holidays with the father in odd numbered years and the second half of such holidays with the father in even numbered years.
ii.For the end terms 1, 2 and 3 school holidays, unless agreed in writing otherwise, J spend the first half of such holidays with the mother in even numbered years and the second half of such holidays with the mother in odd numbered years.
c.THAT J spend time with each of his parents for one half of the end of year term 4 school holidays.
d.THAT in the event that the parents are unable to agree as to the structure of the equal time of the end of year term 4 school holidays by 1st August in the year that the holidays are due to commence, then the parties will forthwith do all such things and execute all such documents to register for and attend upon a single mediation session with S Services to resolve that issue, such mediation session to be conducted if possible no later than 30th September in that year.
(As per the original)
The mother has re-partnered although she and her partner do not live together.
The father has remarried and he and his wife, Ms C, have two children X who is aged seven and Y who is aged four.
In the substantive hearing of the proceedings the Court was assisted by an Independent Children's Lawyer (“ICL”) who had been appointed for J and by a report that had been prepared by a Family Consultant, Ms P. The Family Consultant conducted interviews in late November 2020 and prepared a report dated 11 January 2021.
At the hearing the mother relied upon an affidavit sworn by her and the father relied on an affidavit sworn by him. Although Ms C, the father’s wife, had sworn an affidavit in the proceedings that affidavit was not read as she was not prepared to make herself available for cross-examination. The obvious difficulties which that course of action posed to the father’s case for J to live with him in alternate weeks will be discussed later in these reasons.
HISTORY
In order to understand the parameters of the dispute between the parents at the time of hearing it is necessary to have some understanding of what has happened in the past.
The parents separated in August 2012 when the father commenced a relationship with his present wife. It would seem from the material which is available that this situation caused considerable antipathy between not only the mother and the father’s present wife but also between the children and the father’s present wife.
Proceedings in relation to parenting and property were commenced in 2012 and those proceedings were concluded on 28 January 2015 when orders were made which provided for the parties to have equal shared parental responsibility for the children, for the mother to have sole parental responsibility in relation to medical issues and education and for the younger children to spend time with the father in a structured regime incorporating alternate weekends and school holidays.
It would appear that the younger children spent time with their father in accordance with that regime until an incident occurred on 7 April 2017. The Family Consultant stated:
The parties reported that up until April 2017, the 2015 orders were complied with and the children, including B, spent regular and consistent time with their father.
The incident occurred in the father’s home and the mother was not present.
The father deposed:
On the 7th April 2017 the children were spending time with me. [Ms C], X and Y were at home. This was shortly after the birth of Y. I had noticed that the children appeared to be angry with me that day. The children became involved in an argument whilst [Ms C] was feeding Y. It seemed the argument was about the children being prevented from going away for the weekend with X and Y without the older children [sic]. It escalated into yelling. [Ms C] removed herself, X and Y to another room. She called the police. I dragged J by the arm to a cupboard for a short while as he was becoming uncontrollable. I admit on reflection this was highly inappropriate. I was trying to defuse the situation. They then went to their bedroom where they communicated with the mother. I also spoke with the mother. The children wanted to return home so I wished to make arrangements for that. I also told her that [Ms C] had called the police. When police attended they removed a firearm of mine as a precaution. I understand they did not have fears for the physical safety of the children and I understand the police later advised the mother of that. The mother collected the children about midday the next day, the 8th April 2017. I admit that my actions and the police being called, would have been scary for the children.
(As per the original)
In his submissions the father stated that, considering that incident today, he did not know what he would have done differently.
I note that on 7 April 2017 B was 14 years old, N was 12 years old and J was 10 years old. The father was unable to give any rational explanation for Ms C’s calling the police to deal with an altercation between the father and the children although I accept that she did so without the father’s knowledge. I also accept that, when the father was told the police had been called, he took no steps to call and tell them their presence was not required, if, indeed, that was his view.
The Family Consultant recorded:
[The father] recalled the incident in April 2017 that resulted in his time with the children being suspended. He said that it occurred shortly after the birth of his second child, Y, and he doesn’t believe this timing was coincidental. He said that, “B was very angry with me that day and she became quite aggressive and then N and J joined in. [Ms C] retreated into a room with the (younger) children and she rang a friend of hers who told her to call the police. Which I knew was going to result in me losing the kids. But what else could I do? And J was calling [Ms C] a ‘gold digger’. So I dragged him into a walk in wardrobe but in 10 seconds I realised it was the wrong thing to do.”
The Family Consultant also interviewed Ms C about the incident and reported:
… the incident which occurred in April 2017 had a significant impact on her. She became quite emotional when recalling it. She said that, following the birth of Y, the children had become increasingly and inexplicably hostile towards her and that day “was just the tipping point.” [She] said that she called the police because she felt fearful and intimidated by the children’s aggressiveness, B in particular, and she was advised by a friend that this would be the only way that it would stop “and that I needed to protect myself against allegations being made against me.”
On 2 May 2017 J was interviewed by his school counsellor and the notes of that interview were tendered. The counsellor noted that J was afraid of the dark. The notes record:
J [sic] stated that he was really scared of his dad and worried his dad would hurt him again and worried his dad might come to school to take him…
J stated that he didn’t want to go back to his dad because he is scared his dad will hurt him and swear.
Worried his dad will be angry that he talked about what had happened…
The school counsellor noted that J:
Would like dad not to be so rough and swear at them.
Stated in past a few times dad had locked him on the balcony at night time as [he] had not finished his meal.
Stated that once dad threatened to go to bed and turn oall [sic] the lights off and leave him there. Did turn light off but let him come in a few minutes later…
Subsequent upon this incident the mother, on 10 April 2017, caused her solicitors to write to the father indicating that the children would not be made available to spend time with him and the mother wrote to the school to say that the father was not to collect the children.
On 22 May 2017 the mother filed an application seeking orders for the children to live with her and spend time with the father as agreed and in accordance with their wishes.
On 14 June 2017 interim orders were made by consent which provided at Order 3:
The children spend time with the father as agreed between the parents consistently with the children’s views.
Otherwise all prior parenting orders were suspended and the parties agreed to attend family therapy with Dr Q.
The following further orders were made:
8.Without admissions, the father is to ensure that when he communicates with the children, whether in person, telephone or written communication, he does not raise his voice, intimidate the children or otherwise act in an aggressive manner.
9.Without admissions, the father be restrained from communicating with the mother except in relation to the children (other than via the parties’ legal representatives).
10.Without admissions, neither parent shall remove the children’s mobile phones from them or otherwise prevent the children from contacting the other parent.
11.Except in the case of an emergency, whereby the parties shall communicate by way of telephone call or SMS, the parties shall communicate in relation to the children by way of email.
12.Both parties are restrained from discussing these proceedings, including prior to existing parenting Orders, or any other parenting arrangements that are not the subject of agreement between the parties, with the children.
J’s time with the father gradually resumed. The Family Consultant reported:
The report writer asked J if he recalled how he came to begin spending time with his father again after the incident in 2017. He said that, “I was missing him a bit so I decided to go again and it wasn’t too bad and so I went a little bit more. And Mum’s pretty happy that I’m spending time with him, so that’s good. I know that Mum feels better about [Ms C] now, she was worried about her for a long time.”
The Family Consultant noted:
N said that one of the reasons she decided to spend time with her father again after the incident in 2017 was because they had been to family therapy with Ms K [sic] “and she taught us some skills to manage things when Dad got angry, so that was good, and also I really wanted to have a relationship with the boys.”
On 27 November 2017 orders were made, pending further order which provided:
That the children spend time with the father as agreed between the parties and pursuant to the children’s wishes.
Whilst there is disagreement between the parents about the exact time J spent with the father after that incident, it appears that from about 2020 J has spent alternate Friday nights with the father and some Saturday nights.
J spent half of the April school holidays with the father, albeit in two blocks of five nights and two nights.
In addition, the father has arranged tutoring for J at his home on Friday nights.
In cross-examination by the ICL the father asserted that J had regularly cancelled tutoring but on further examination it emerged that the difficulties had been in scheduling for the tutor and not in J’s cancelling.
Holidays have been problematic because of the father’s insistence that the mother consent to proposed arrangements and the mother’s insistence that her consent was not required and that the father needed to make arrangements with the children.
By way of example, there was a text exchange between the parents in the period leading up to Y’s third birthday which occurred in 2020. The father texted the mother:
I am leaving for Suburb R friday morning stopping of for Suburb T on the way for N’s driving lesson, i suggest they stay over thursday night and we will be returning monday, we will be celebrating Y’ birthday on sunday, ill let you confirm it with the children.
(As per the original)
The mother responded:
Sounds like a nice weekend. Its [sic] up to the children if they want to go. Their decision not mine so you’ll need to confirm it with them…
The father replied:
I’ll let you confirm it with the children and let me know what you decide.
I’ll write a letter to [your solicitor] to request this weekend.
The mother replied:
As I said it’s up to the children… My solicitors are on holiday. Regardless of any emails you send, it’s entirely up to the children.
Goodnight.
The father then replied:
… J said he wanted to come this weekend but wanted to check with you first and now i have seen a message from B’s phone that he is not coming. He will now miss out on Y’ third birthday. Requesting time with the children has always been a charade with you, and i cannot continue to engage in pointless circular exchanges. I have only had one night with J over the entire summer 19/20 school holidays. I have attempted to coparent with you again, and have again repeatedly failed as has been the case for nine years since seperation. I have had only two weekends with J in the last two and a half years since orders were suspended. You say your lawyer is on holiday so it is pointless writing to him. I will not therefore attempt to communicate regarding time until the final hearing as it is a process you use to humiliate and abuse with no intention of actually enabling time.
(As per the original)
This exchange amply illustrates the parents’ mode of communication, each refusing to compromise to ensure that the time with the children is smoothly negotiated. Neither explained why, for example, the mother was not prepared to ask the children if they wanted to go and confirm the arrangement or, on the part of the father, to ask the children and confirm the arrangement with the mother. Rather, their communication consists of each stating his or her position and never coming to a resolution.
In a letter to the parents dated 22 February 2020 Dr Q stated:
The children struck me as continuing to be a cohesive sibling unit and to have a close connection to each other.
On 22 February 2020 Dr Q, having recently seen the family, wrote a letter to both the father and the mother in which she told the parents that the children reported they had enjoyed spending a recent holiday with their father and spoke about seeing him regularly. Dr Q stated:
They also speak about how they still so much enjoy seeing their siblings and are disappointed when that doesn’t happen. These are really important and appropriate connections for the children as adolescents now to be making with you. The reality is that at the current age of the children, it is important to meet them where they are at and connect with them around activities that they enjoy. Increasingly, I would also recommend that the children feel they have some voice about how often and in what form the time they spend with you (the father) takes. The type of orders that were appropriate when the children were younger don’t necessarily fit for older children. It is also important that their voices be given some weight.
The children also expressed to me how much they would like to be relieved of being out of the family court system. My experience is that once the pressure is removed from children, they often feel much more free to move between you as their parents, especially if there is encouragement from both parents for this to occur. If you could find to do this, I suspect the children would be much more relaxed.
In April 2020, the parents agreed they would seek no orders in relation to N who was then 15 years old.
On 30 April 2020 the mother’s solicitor sent an email to the father stating:
…
I am instructed that over the past few months you have communicated directly with J regarding the time J is to spend with you. My client is of the view that given J’s age, it is appropriate for you to continue to organise time for J to spend with you directly with him. I confirm that my client is content for J to spend time with you in accordance with his wishes and will continue to facilitate such time, including transporting J to and from your home when required.
My client also proposes that you consider inviting J to spend time with you in accordance with a formal routine, such as that J spend time with you every second weekend. However, my client will leave this for you to discuss this with J if you wish.
On 17 May 2020 the solicitor for the mother send an email to the father stating:
…
As indicated in my previous email, as J is 13 years of age (turning 14 this year), my client is of the view that it is appropriate that you liaise directly with J as to the time he is spending with you. My client will gladly facilitate J spending time with you as agreed directly between you and J.
My client has provided me with the attached text message exchange between you both yesterday. I note that such messages were sent yesterday morning in relation to spending time with J that same day, where you had previously not discussed this arrangement with my client or J, but only attempted to pass a message through B. My client requests that you not involve the other children in your discussions with J but communicate with J directly.
My client remains willing to facilitate such time as may be agreed between you and J, such as alternate weekends, but only once agreed. My client is of the view that it is not appropriate to have a coercive or prescriptive arrangement for J to spend time with you due to previous incidents, and that you reaching agreement directly with J about the time you spend with him best promotes his relationship with you.
Finally my client notes J has expressed his desire for the current proceedings to be finalised (as noted in Dr Q’s recent email to you and my client). Given J’s age and in the context of these proceedings there is, in my respectful opinion, simply no realistic possibility that your application for a change of J’s residence will be successful. In those circumstances, my client invites you to withdraw your Application in order that the proceedings can be finalised on the basis of the current Orders, which can only serve to provide relief for the children, who are aware of the proceedings and the ongoing dispute between you and my client.
There was another incident on Fathers’ Day, 6 September 2020.
The father gave no evidence about this incident in his trial affidavit but it was explored in
cross-examination. The children were invited for lunch, or brunch, at the father’s home and arrived over an hour late. They had been asked to come at 11 am to help with preparations. B drove the younger children to the father’s home. B told the father they were late because they were talking on the phone to their maternal grandmother who was upset. B had sent a number of texts to the father confirming they were late but were coming. The father castigated the children. B asked him if he wanted them to leave. He said “yes”. They left.
The Family Consultant reported:
The report writer asked about the recent incident on Father’s Day. [The father] said that, “[Ms C] puts a lot of effort into things. I did say that it was unacceptable (that they were late) and then B said, so do you want us to leave? And so I said yes, but we had presents to open and then after that I asked them to stay but they said no.” [The father] said that [the mother] paints a narrative of him being an “angry Dad” but this is (in his mind) erroneous and only for the purposes of distancing him from the children. He said that there was a time when his second marriage was in danger, “because I was scared of setting boundaries with the older children, so now I will do it (like on Father’s Day). But even when I do it appropriately, it will be misinterpreted by [the mother] and by the Court. My view remains however, that it is important for X ([the father’s] second youngest child) to see me behaving consistently.”
The father in cross-examination by the ICL said that his was a human response and justified.
The Family Consultant reported Ms C’s account of the event:
The report writer asked Ms C about the recent incident on Father’s Day. She said that there were antecedents for this, at Easter 2020 when the children were due to come for dinner on the Saturday night at 6pm and apparently texted at 5.58pm to say something along the lines of ‘we’re not really feeling the vibe.’ “So [the father] called them and they ended up coming over later but I was in a shitty mood because I felt deeply disrespected. So because of that I asked them to come at 11am the next day to help me prepare lunch and they got there at 12.30pm.” Ms C said that this was on her mind “when they turned up an hour late for Father’s Day brunch and said that they were late because they’d been on the phone with their grandmother for an hour? [The father] said, well there’s always a drama on a special occasion and he told them to go. We’ve now decided that for special days in future, if they want to come, they need to stay over the night before.”
The mother, in cross-examination, said that J was distraught and sobbing when he came home.
On 14 September 2020, a week after the Fathers’ Day incident, the father sent an email to the mother’s solicitor requesting confirmation that N and J would be accompanying him on a skiing holiday commencing on 27 September 2020. There had been no communication between the father and the children since Fathers’ Day.
On 15 September 2020 the mother’s solicitor replied to the father saying:
I am instructed our client has already responded to you direct via text message in respect of the planned ski trip. In any event, should the children wish to attend the ski trip, my client will facilitate their attendance in accordance with the existing orders. I understand the children have not received any communication from you since you requested they leave your home on 6 September 2020.
Moving forward, please ensure communications in respect of the logistics for the day to day parenting of the children is directed to our client.
The father’s response was to cancel the holiday for J and N and to send a text message to the mother in the following terms:
You blocked J last weekend and now he’s not spending any time in the holidays either (as you have talked him out of going skiing). I have wasted thousands of dollars on ski passes yet again. I have told J that he will never be skiing with me and the younger boys again as he needs a consequence and he needs to understand responsibility. The same goes for N. I will deduct N’s planned driving lessons that i would have agreed to cover costs of lift passes. She also needs to understand consequences and if she has it in her she should be able to make it on her own. You owe her 2 lessons (you promised her birthday and Christmas present). I cannot come to any agreement at all regarding time with him (J), and now you are offering scraps ‘maybe’ this weekend. You have infantilised and feminised a 14 year old boy to the point he cannot transition to a man. You deal with him then – i am going to wait for court orders and write to your lawyer and the ICL to establish proper time with him that you cannot impede.
(As per the original)
(Italics added)
The father, in cross-examination, said that he stood by the statement in italics and that J needed to spend time with him to “learn to be a man”.
On the same day the father wrote to the solicitors for the mother stating:
I reiterate to your client that in the absence of firm orders for time with J and After 8 years of cancelled holidays and thousands of dollars losses, myself and [Ms C] will not be booking any further holidays or trips for the older children.
We had booked a Christmas vacation with the agreement of the older children but given the circumstances we will also be cancelling that.
It is too stressful for [Ms C] who takes [a] lot of time to organise the holidays and does not wish the younger boys be exposed to continued conflicts, cancelations and utter chaos…
It is also completely unacceptable that for the third year in a row the older children have arrived late for father’s day by sometimes a period of hours, and missed organised lunches etc. [O]n this year’s occasion the children said that they were late because your mother was upset on father’s day and they were consoling her on the phone. If this is true it demonstrates significant impairment in functioning on your client’s and the maternal grandmother’s part in what can only be perceived to be an effort to sabotage father’s day.
(As per the original)
On 19 May 2021 the mother sent an email to the father stating:
I spoke with Dr… from V Centre on Friday evening.
They are unable to see J until term 3 or 4.
I have put J on a wait list, I would prefer he was seen at V Centre as they work closely with [J’s school], however you may want to see if another clinic has earlier appointments.
…
The father did not respond to that email.
On 15 May 2021 the father sent the following text message to the mother:
26 June to 3 July
We have booked a beach/farm holiaday south coast J said he wants to come
(As per the original)
The mother responded:
That’s good, I hope you are going to ask the girls too!!
Also the children said you were taking them skiing September/October holidays, what dates please?
I am taking the kids away 9-19th December.
(As per the original)
The father responded with information that he had booked a skiing holiday between 19 September 2021 and 25 September 2021.
REPORT OF MS P
Ms P conducted interviews with the family, including Ms C, in November 2020 and prepared a report dated 11 January2021.
In relation to J’s views, Ms P reported:
67.J said that when he spends time with his father, he loves being with the little boys and he agreed (with the adults’ views) that there is probably a lot of “hero worship” that is present in these relationships. He also said that these days he gets on “pretty good” with Ms C.
68.When asked to describe his father, J seemed hesitant. He initially said that he was not sure. After some prompting and reassurance, J then said that, “He’s nice. He’s embarrassing sometimes, like with the Dad jokes? We get on pretty good usually I think. He’s a bit quieter than Mum. She expresses her emotions a bit more I think? But she’s also loving and caring and nice. And a bit of a clean freak.”
69.The report writer asked J if he recalled how he came to begin spending time with his father again after the incident in 2017. He said that, “I was missing him a bit so I decided to go again and it wasn’t too bad and so I went a little bit more. And Mum’s pretty happy that I’m spending time with him, so that’s good. I know that Mum feels better about [Ms C] now, she was worried about her for a long time.”
70.In regard to his future parenting arrangements, J said that “I want to pick my own days about when I see Dad. Because sometimes it can be a bit stressful at his house and it’s not as stressful here.” J was not able to articulate what he meant by this and the report writer then asked him if he ever worried about making choices that might hurt either of his parents? He nodded emphatically. J said that if he had a magic wand, he would use it “to (be able to) really decide for myself where I wanted to be and they would be both happy with that.”
Ms P also spoke to both of the older girls. She reported:
78.B said that she believes things are going well with her father at the moment because “it’s been good to be able to choose about when to go to Dad’s house. When we were being forced to go, it was a bit rocky. So now when we go, it’s because we really want to be there so that’s good.” B said that the Father’s Day incident was not really that big a drama but rather it was pretty typical of how things go: “There are periods of time when things are good, and then when they’re not so good. Like after we came back from overseas we didn’t see them for a couple of months and it was like he didn’t really want to see us either?” B said that while things can also get rocky with Ms C, she described things as generally much better than they used to be.
79.B expressed the view that she doesn’t believe “forcing” J (by way of orders) to spend time with his father would be a good idea. “Because their relationship is much better now. If he’s forced to go, that wouldn’t be good. And Dad’s ultimatums don’t work for him. I know he gets really sad when Dad does that. And I know that J likes to keep both Mum and Dad happy and that’s really difficult for him!”
Ms P reported that N asked for large amounts of their conversation to be kept confidential. She reported:
72.N said that one of the reasons she decided to spend time with her father again after the incident in 2017 was because they had been to family therapy with Ms K [sic] “and she taught us some skills to manage things when Dad got angry, so that was good, and also I really wanted to have a relationship with the boys.”
73.N spoke candidly about some of the struggles she has had in her relationship with Ms C but she asked for her thoughts not to be documented by the report writer. N said that they usually get on pretty well now “although it can be a bit up and down at times.”
74.…While she denied the idea that her mother has influenced her to not spend time with her father, N spoke about how being in the middle of the conflict between her parents has affected her mental health. She said that, “I really want to get out of it, out of Court. I want people to be happy. I want what’s best for J. I know that he wants to be able to choose freely what to do. I want a good relationship between Mum and Dad.”
75.In regard to how she would like things to be different in the future, N said that it would be good if her father “was more flexible when he wants us to do things with him, like give us more time to decide?” She said that she wanted him to know how happy she is that he has withdrawn the application for orders for her, “because it feels like so much less pressure. I know that I will spend time with him, and so will J, and it’s got nothing to do with Mum!”
Ms P considered the nature of the relationship between the father and the children and stated:
82.As much as [the father] would like to be able to blame [the mother] for the fracturing of his relationships with the children in the past, and the relative paucity of the time he currently has with them, this view doesn’t account for the considerable complexity of the situation. While there appears to have been an intense loyalty conflict for the children for a number of years as a result of [the mother’s] difficulties in regulating her emotions and maintaining appropriate boundaries with the children in relation to the parental conflict, this appears to have run its course, certainly for the older two girls at least, based on their narratives. If it were only [the mother’s] influence that was contributing to the situation, then you would expect to see a much more robust relationship between [the father] and the children than is currently the case. The report writer’s view is that while the children’s relationship with Ms C has improved significantly since the incident in 2017, it is still relatively fraught (on both sides) and [the father] is caught in the middle of this, which creates a loyalty bind for him. Again, while the relationship between the children and Ms C may have started out being very influenced by [the mother’s] antipathy towards Ms C and her lack of acceptance of Ms C’s legitimacy in the children’s lives, this too has waned and yet residual problems remain evident.
As to the consequences of allowing J to determine what time he spends with each parent, Ms P stated:
85.…Both his sisters observed that J is still in a space where he is keen to keep both his parents happy and he struggles with the emotional impact of this. The report writer does not believe that J is concealing his ‘true’ feelings (i.e., a desire to live with his father) in order to be loyal to his mother but he is nevertheless acutely aware of the push/pull between his parents that he is now the sole subject of. For J’s sake, both parents need to be cognizant of the impact this is having on him and, with words as well as actions, indicate to him that whatever his choices are, they are valid ones. If the parties are able to do this, it is quite possible that J will end up gradually increasing his time with his father, perhaps even to the point where he is living there. Anything that J chooses is going to be the best outcome for him, if this choice is made freely.
86.If J retains the right to choose how much time he spends with each parent, the likely ebb and flow of the arrangement will be a challenge to [the father] and Ms C, in terms of integrating this into their household. However, the report writer’s view is that this should be handled by way of collaborative and solutions-focused discussions with J and his siblings, rather than through enforcement of orders or ultimatums about what is an ‘acceptable’ amount of time, etc. This might include doing something like producing a 3 month plan (to cover a school term) with an agreed schedule incorporated into it, noting likely commitments of all parties and including a further agreement about how to change the plan as needed and a commitment to being flexible but also mindful of the limits to flexibility. This plan doesn’t need to be ‘agreed’ to by [the mother] but it would be very helpful (for J) for it to be endorsed and actively supported by her.
Ms P recommended:
90.… that J live with each of his parents during NSW school terms, according to his wishes, noting that he is currently primarily living with his mother and he may continue to choose to do so in the future.
91.… that J spend time with his parents in the NSW school holidays, on an equal time basis, that is, for half of the short school holiday periods, and in the end of year break, by agreement between the parties.
CONSIDERATION
It is not in dispute that it is in J’s best interests to have a meaningful relationship with both of his parents.
The question of what is meant by the term “meaningful relationship” was considered by the Full Court in the decision of McCall & Clarke (2009) FLC 93–405 where their Honours said, commencing at [109]:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant. Significant is defined as “important; of consequence”
The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …” “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...”
We turn first to the objects clause (s 60B(1)). The purpose of an objects clause is “to indicate the intended purpose of the legislation” (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… “objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ in Russo v Aiello (2003) 215 CLR 643 at 645”.
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.
The phrase “meaningful relationship” in the context of s 60CC(3)(a) of the Family Law Act 1975 (Cth) (“the Act”) has, not surprisingly, been considered in a number of decisions. In Mazorski & Albright [2007] 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The Full Court in Moose & Moose (2008) FLC 93–375 adopted the statement of Kay J, sitting as a single Judge in Godfrey & Sanders [2007] 208 FLR 287, who stated:
... even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Thus I am required to consider the importance J’s having a relationship with his father and with his mother that is significant, important and of consequence.
The legislation does not mandate that the relationship be optimal or that time with either parent be maximised.
Whether the relationship between parent and child is “meaningful” depends on the quality of their interaction, not its duration.
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Ms P stated:
J was quite clear that he wishes to retain the right to choose when to spend time with his father. He appeared happy with the amount of time that he is currently having and did not think there was a need to change things. However, J also expressed a desire to be in a situation whereby whatever he chose would be accepted without qualms by either parent…
Ms P said:
The report writer does not believe that J is concealing his ‘true’ feelings (i.e., a desire to live with his father) in order to be loyal to his mother…
J is almost 15 years old and I accept the evidence of Ms P that his wishes should be given significant weight.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
There is no evidence that J’s relationship with his mother is other than close, loving and supportive.
Ms P described the relationship with the father as being “fractured” in 2017. J told Ms P that it was more stressful at his father’s house than his mother’s but it is also clear that J loves his father and values their relationship. However, in cross-examination by the father, Ms P said that aspects of the father’s behaviour “weighed heavily on J”.
In cross-examination, Ms P said:
I think J feels a lot of pressure coming from his dad, a lot of weight of expectation from his dad and I think he struggles to know what to do with that…
Ms P raised concerns about the relationship between the children and their step mother. She stated:
… The report writer’s view is that while the children’s relationship with Ms C has improved significantly since the incident in 2017, it is still relatively fraught (on both sides)…
That evidence was not challenged.
Since Ms C did not give evidence, her views about the nature of her relationship with J are not available.
N spoke to Ms P about:
…some of the struggles she has had in her relationship with Ms C but she asked for her thoughts not to be documented by the report writer. N said that they usually get on pretty well now “although it can be a bit up and down at times.”
Ms C’s views about the nature of her relationship with N are not available.
B said that while things can also get rocky with Ms C, she described things as generally much better than they used to be.
Again, Ms C’s views about the nature of her relationship with B are not available.
Absent evidence from Ms C, I accept that the relationship between her and J is strained.
Both Dr Q and Ms P commented on the strong sibling bond between J and his sisters.
I accept that J also has a strong and loving relationship with his half-brothers but it is likely that it is his relationship with his sisters that is the more significant and important relationship for him.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The father has provided financial support for J including paying his private school fees and for holidays and activities which J enjoys.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
J has lived in the primary care of his mother since the parents separated in 2012 when he was six years old. He has lived in the same home as his sisters since his birth.
If J were to live with his father in alternate weeks, it is likely that he would see much less of his sisters who do not currently spend time with their father during the week.
Ms P expressed concern that imposing prescriptive orders on J might create resentment and lead to resistance or outright refusal to spending time with his father.
She stated:
I reiterate again that…, the best outcome for J is he feels that Mum and Dad support… his decisions and what he needs to do. And I know I haven’t been asked this question just yet, but I will answer my own question, which is that I don’t think… either parent should accept that J just… through the course of a week goes “Oh, tonight I will go to Dad’s and tomorrow I will go to Mum’s”. I think there has to be some sort of collaboration around what this might look like over the course of the term, some general agreement about how it might work… he impressed me as a young man who would be amenable to that sort of discussion and who would generally do as his parents asked in that sense.
The father gave evidence that Ms C would be involved in J's day to day care during periods when J lived with him. There was no evidence from Ms C that she was prepared to assume that role. It may be that her role would be less involved in J's care than the father's role but, in circumstances where the evidence is that the relationship between J and Ms C is strained, any orders which placed him in her care in alternate weeks would be likely to cause some concern to J.
A further concern is that the father is an Australian military officer and is deployed from time to time at sea or overseas. The father gave no evidence about the frequency or length of those deployments and indeed he first raised the issue of deployments in the course of his submissions when he spoke about the possibility of a future deployment. Presumably in the event that the father were deployed it would be his intention that J would be in the sole care of Ms C in alternate weeks and it is not possible to say whether that would be a situation which would be acceptable to J.
It is also of concern, having regard to the incident where Ms C called the police in 2017, that there is no evidence from Ms Manrow about how she would react in the event of a disagreement between herself and J. Would she act differently?
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I accept that, for perhaps a lengthy period after separation, the mother’s anger and resentment had significant effect on the children’s willingness to spend time with their father. However, the evidence is that after the consent orders of 2015, the children did spend time with him until the incident on 7 April 2017.
The mother’s evidence was that she has now no difficulty with J spending as much time with his father as J would like.
Ms P reported:
32.The report writer commented that in his 2014 report Dr M had been very critical of [the mother’s] focus on [the father’s] partner, [Ms C]. [The mother] said that while parts of what Dr M said were hard for her to read and she believes not necessarily accurate, “I do accept that some of it was accurate. I did find it hard to accept how quickly [the father] moved on. And it did have a little bit of an impact on the children.” The report writer asked [the mother] if she accepted Dr M’s view that the girls in particular had been forced into a situation where they took “her side” over Ms C and were in quite a loyalty bind. She said that, “Yes, the girls may have taken my side around that time but it’s different now. They can make their own choices. I don’t mind them having a relationship with [Ms C].”
33.[The mother] said that in 2020, “I bear no resentment towards [Ms C]. I do wish she was nicer to the children and more tolerant of them. She can be quite intolerant of J, like she blames him if the little kids are upset. But it’s otherwise OK.” She said however, that she can’t envisage a time when she would be able to have any form of collegiate relationship with Ms C.
Ms P raised this with the father. She reported:
54.The report writer suggested that it is almost certain that the children would not have recommenced spending time with him the way they have in 2020, without there being a concomitant change in [the mother’s] attitude towards him, even if it is minor. [The father] said that he would really like to think that the attitudes expressed by [the mother] to the report writer (about the value of the children having a close relationship with him) are genuine "because that would be promising." He said that he was prepared to concede that "maybe I have interpreted her behaviour more rigidly than I should have. That makes sense actually, like with how she is supportive of B working for me."
The mother told Ms P:
I don’t get much of a sense of a loyalty pull for him anymore, not like it used to be…
Ms P stated:
82.As much as [the father] would like to be able to blame [the mother] for the fracturing of his relationships with the children in the past, and the relative paucity of the time he currently has with them, this view doesn’t account for the considerable complexity of the situation. While there appears to have been an intense loyalty conflict for the children for a number of years as a result of [the mother’s] difficulties in regulating her emotions and maintaining appropriate boundaries with the children in relation to the parental conflict, this appears to have run its course, certainly for the older two girls at least, based on their narratives. If it were only [the mother’s] influence that was contributing to the situation, then you would expect to see a much more robust relationship between [the father] and the children than is currently the case. The report writer’s view is that while the children’s relationship with Ms C has improved significantly since the incident in 2017, it is still relatively fraught (on both sides) and [the father] is caught in the middle of this, which creates a loyalty bind for him. Again, while the relationship between the children and Ms C may have started out being very influenced by [the mother’s] antipathy towards Ms C and her lack of acceptance of Ms C’s legitimacy in the children’s lives, this too has waned and yet residual problems remain evident.
I accept her assessment.
It is unfortunate that the father insists that any difficulties in J’s relationship with him are a result of the influence or alignment with his mother and sisters. He could not consider that anything he has done has contributed to the present quality of the relationship.
Ms P reported:
55.In terms of why he is continuing to pursue a litigious path re parenting (with one child already having aged out of the process and the other two close behind), [the father] said that “I am well aware of what lies ahead and I’ve never been told to discontinue litigation. They’ve always told me that ‘[the mother] is doing everything she can to alienate the children from you.’ He said orders provide some security and consistency and mean that things can’t be changed at [the mother’s] whim.
Ms P also identified aspects of Ms C’s parenting which caused concern:
83.Ms C presented as a person who has a strong need for control. She talked about “being triggered” by aspects of the children’s behaviours and deeply angered by their “disrespect” of her when they turned up late to events. The children’s narratives suggest that her frustration tolerance can be quite low at times and she may struggle to truly value being a part of a blended family system, which makes the children feel marginalised when they seek to be accepted, included and validated as part of their father’s family. It is likely that [the father] finds it difficult to be ‘all things to all people’ and his comments about sometimes needing to pull back and concentrate on Ms C and protect the younger children (from the stress created by the conflict) suggest that he is using this as a coping strategy.
While the father vehemently disputed that assessment, he did not challenge it in
cross-examination of Ms P. Absent any evidence from Ms C about this issue, I accept the unchallenged evidence of Ms P.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Ms P reported:
56.[The father] said that he and Ms C are simply unable to accommodate the type of flexibility that J and his mother want in the parenting arrangements. “I have a second family to think of. So J just can’t make a last minute decision about whether he wants to spend time with me, to come on holidays with us. We simply can’t go on like this, between one and three nights per month. Because in the past whenever there’s been fixed times, he’s been happy to spend time with me.”
Further Ms P stated:
84.The report writer’s view is that [the father’s] desire for specific orders (as opposed to the current discretionary ones) is less about reducing [the mother’s] alleged control of the parenting arrangements and far more about keeping Ms C happy. It is understandable that in straddling two (less than fully integrated) families [the father’s] life would be calmer and more predictable if he wasn’t constantly having to negotiate about the children’s time with him with [the mother] or alternatively be beholden to the whims of adolescents.
That evidence was unchallenged and I accept it. It accords with the evidence of the father about the effect of the children’s behaviours on Ms C and his competing obligations to his first and second families.
any family violence involving the child or a member of the child’s family;
Arguably, the incident on 7 April 2017 constituted an assault on J and also came within the definition of family violence in s 4AB(4)(e) of the Act.
However, neither the parents nor the ICL addressed this as an issue.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The potential for further applications, if J is subjected to a regime which is unacceptable to him, is significant.
CONCLUSION
The father's position in these proceedings changed significantly from time to time.
In his response to final orders filed on 29 January 2020 he sought an order that J live with him and spend time with the mother as agreed or failing agreement each alternate weekend and for half of school holidays.
That remained his position when he attended the interviews with the Family Consultant.
At the commencement of the hearing the father filed a minute of orders which provided for J to live with the parents on an alternating week-about basis during school terms and for half of the school holidays.
The father's evidence both in his affidavit and in cross-examination was that the week-about arrangements was that which he proposed.
In submissions, but not in sworn evidence, the father said that if a week-about arrangement were ordered he would not insist that J comply with it but that he would always respect J's wishes in that regard. The father said that the reason he needed a week-about order was so that J would not be under any illusion that he was required to live with his mother.
If that is in fact the father's reasoning, then it is difficult to understand why he did not accept the orders which were proposed by the mother and which were:
That J live with each of his parents during the NSW school terms, according to his wishes.
and which would seem to satisfy that concern of the father.
I do not, however, having regard to the father's sworn evidence, have any confidence that if an order were made for J to spend alternate weeks with each parent, and J refused to accept that regime, the father would not seek to bring proceedings asserting that it was the mother's influence or the mother’s fault that J was refusing to spend time with him.
I also share the concern expressed by the Family Consultant that if orders are made for a regime which is unacceptable to J, then J will simply refuse to comply with those orders. There is ample evidence in the past for all three children declining to spend any time with their father from time to time.
I accept the evidence of Ms P that, having regard to J's age, his views should be given significant weight and I accept that J's wishes, consistently expressed both to Dr Q and to Ms P, are that he be free to choose how much time he spends with his father and in what circumstances. For this reason and for the other reasons expressed earlier I am of the view it is not in J's best interest to make an order that requires him to spend equal time with each parent.
Orders will be made in the form proposed by the mother.
HOLIDAYS
The considerations which apply to J’s day to day living arrangements apply equally to holiday arrangements.
I give greatest weight to J’s expressed wish that he not be required to comply with a set regime.
I accept that, because of the father’s stated attitude that he will not include J in overseas travel arrangements in the absence of a prescriptive order, this may have the effect that J will not participate in opportunities for travel, both overseas and, perhaps, within Australia.
PARENTAL RESPONSIBILITY
The orders which were made by consent on 28 January 2015 provided for the mother to have sole parental responsibility for the children in relation to medical issues and education but also provided for the father to have an opportunity to have input in relation to those decisions.
Before me there was no evidence that any issue had arisen since 2015 in relation to medical treatment for J. Indeed the mother gave evidence of an occasion in recent times when J required medical treatment and she was not available. The mother organised for the father to take J to the emergency department at the hospital and telephoned the hospital to ensure that they were aware that although she had parental responsibility for medical decision making the father on this occasion was bringing him to the hospital. The mother conceded, in the course of her submissions, that if there were a disagreement between herself and the father in relation to proposed medical treatment for J the father was better placed to make the final decision because of his professional training. In those circumstances the evidence does not support the need for the mother to continue to have sole parental responsibility in relation to medical matters.
The issue of J’s education is one, however, which continues to create difficulties between the parties. The mother seeks a continuation of the order that she have sole parental responsibility in relation to J’s education. As has been noted earlier in these reasons the father seeks specific orders in relation to education although it is not clear why such orders are necessary.
The mother gave evidence of the steps she had taken to engage J in appropriate testing as recommended by the school and with V Centre psychological testing. The father in submissions conceded that the steps which the mother had taken in that regard were entirely appropriate. It was therefore not clear why the father would require specific orders in relation to that particular aspect of J’s education.
Although the father was adamant that he had for many years raised with J’s school his concerns about J’s progress he was unable to point to any instance where he had shared those concerns with the mother, stating that he “assumed” that the school would pass the information onto her.
His evidence that he did not communicate with the mother about J’s education because she had sole parental responsibility for education was disingenuous having regard to the terms of the orders made on 28 January 2015 and particularly Order 17 which provides the mechanism for consultation.
On 19 June 2020 J’s tutor sent an email to J’s mathematics teacher, with a copy to the father. In the email the tutor stated, inter alia:
…
I wanted to raise with you some concerns I have about him that go beyond my ability as a maths tutor. He had a lot of trouble focusing and I wonder if it might be worthwhile to investigate ADHD or any other learning issues, or anxieties. I am not qualified to diagnose anything in anyone, but I have a pretty good hit rate with these things. I spoke to [the father] and he has also noticed that J seems to have trouble that might be explained by learning difficulties or anxiety. If indeed there is an issue, and it can be treated, it could make such a difference for J. I explained to J that school counsellors are usually the first point of call.
The teacher responded, also with a copy to the father:
Thank you for this feedback. I believe J’s tutor has raised these concerns with [the father] -… is this correct? I think the appropriate course of action would be for J’s parents to make contact with the school or seek their own professional guidance.
I taught J last year, and while he did struggle with a lot of the content, he was able to gain understanding, particularly when we had the opportunity one-on-one. I think a lot of his problems also come from a lack of confidence, so I am sure your work with him will make a difference.
There is no evidence that the father provided the mother with either the email from the tutor or the email from the teacher.
When the mother wrote to the father on 19 May 2021 suggesting that he may see if another clinic could see J for earlier appointments than V Centre, the father did not respond to her. In his oral evidence he said that he didn’t respond because he considered that the mother’s action in sending the email was not a genuine attempt to communicate with him and that in any event replying to her email was pointless as “I have no rights as to education”. He did not construe the mother’s email as an invitation to him to engage in the decision making process.
Why the father now seeks specific orders relating to J’s attendance for testing is unclear in circumstances where he said that the mother’s actions in relation to that issue were entirely appropriate.
An order such as that proposed by the father in relation to homework will do no more than provide another arena for conflict between the parents.
Both parents gave evidence that they do not communicate and an order for shared parental responsibility will likely result in conflicting instructions being given to the school.
Ms P stated in her report:
Both parties indicated that they do not have a functional co-parenting relationship. Neither time (often a great healer) nor family therapy appears to made any measurable difference to the level of parental antipathy or their capacity to work collaboratively with each other…
The mother will have parental responsibility for J’s education.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 6 July 2021
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