MARKES & MARKES (No.5)
[2020] FCCA 2634
•18 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARKES & MARKES (No.5) | [2020] FCCA 2634 |
| Catchwords: FAMILY LAW – Parenting – children’s time with the Father – extensive litigation history – numerous contravention proceedings – mental health of the children – whether there is an alignment between the Mother and the children – age of the children – children’s views – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), Pt. VII, ss.60B, 60CA, 60CC(2), 60CC(3), 61DA, 65D Family Law Rules 2004 (Cth), rr. 13.01(3), 15.55 |
| Cases cited: Grella & Jamieson [2017] FamCAFC 21 Rice & Asplund [1978] FamCA 84 |
| Applicant: | MS MARKES |
| Respondent: | MR MARKES |
| File Number: | MLC 9396 of 2009 |
| Judgment of: | Judge Carter |
| Hearing dates: | 24 & 25 August 2020 |
| Date of Last Submission: | 25 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 18 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puyol |
| Solicitors for the Applicant: | Knight Family Lawyers |
| Counsel for the Respondent: | Mr Eidelson |
| Solicitors for the Respondent: | Matthew Oldham Barrister & Solicitor |
ORDERS
Orders 4, 5, 6, 6A and 6B of the minute of consent orders made on 30 September 2013 (“the 2013 orders”) be discharged.
The children Y born in 2005 and X born in 2008 (collectively, “the children”) spend time with the Father as follows:-
(a)for two out of three weekends, commencing Friday at 6.00pm to Sunday at 7.00pm, continuing in the same cycle as is current in place and:-
(i)in the event the Friday is a public holiday, time shall commence at 6.00pm on the Thursday of that weekend; and
(ii)in the event the Monday is a public holiday, time shall conclude at 5.00pm on the Monday of that weekend;
(iii)in 2021 and in each year thereafter, the first of the children’s two out of three weekends with the Father in that year shall commence at 6.00pm on the fourth Friday of January;
(b)on the Thursday immediately following the second of the two consecutive weekends from 6.00pm to 8.30pm;
(c)during the school term holidays, and subject to the Father providing notice to the Mother at least 30 days before the commencement of the school term holidays that he intends to spend time with the children pursuant to this order:-
(i)in 2020 and each alternate year thereafter, from 9.00am on the first Saturday of the school term holidays until 6.00pm on the second Saturday of the school term holidays; and
(ii)in 2021 and each alternate year thereafter, from 9.00am on the second Saturday of the school term holidays until 6.00pm on the third Sunday of the school term holidays;
(d)in the event that the Father does not provide the Mother notice pursuant to order 2(c) herein then the children shall continue to spend time with the Father for two out of three weekends pursuant to order 2(a) herein but the time pursuant to order 2(b) herein shall be suspended during the school term holidays;
(e)during the long summer school holidays for the first two weeks of January, commencing at 4.00pm on 31 December in each year; and
(f)for Christmas:-
(i)from 5.00pm on 24 December until 400pm on 25 December in 2020 and each alternate year thereafter; and
(ii)from 4.00pm on 25 December until 5.00pm on 26 December in 2021 and each alternate year thereafter; and
(g)at such further or other times as may be agreed between the parties from time to time.
Changeover is to occur as follows:-
(a)in relation to the time pursuant to orders 2(a) and 2(c)-2(f) (inclusive) herein, the Mother is to deliver the children to the Father’s residence at the commencement of time and the Father is to return the children to the Mother’s residence at the conclusion of time; and
(b)in relation to the time pursuant to order 2(b) herein, the Mother is to deliver the children to the paternal grandmother’s residence at the commencement of time and the Father is to return the children to the Mother’s residence at the conclusion of time.
The Mother, at her option, communicate with the children by telephone between 6.00pm and 6.30pm on any Tuesday and Thursday when the children are spending time with the Father pursuant to these orders, and for this purpose the Mother shall call the Father’s mobile telephone and the Father shall do all such acts and things as are necessary to facilitate telephone communication between the children and the Mother pursuant to this order.
The Father, at his option, communicate with the children between 6.00pm and 6.30pm on any Tuesday when the Father is not due to spend time with the children pursuant to these orders, and for this purpose the Father shall call the Mother’s mobile telephone and the Mother shall do all such acts and things as are necessary to facilitate telephone communication between the children and the Father pursuant to this order.
Each of the parties be at liberty to arrange counselling for the children or either of them, at D Counsellors, or such other counselling as may be agreed in writing, with each party to keep the other fully informed as to the children’s attendance at such counselling.
The parties are otherwise restrained from arranging for the children or either of them to attend upon a counsellor, psychologist, social worker or mental health professional without the prior written consent of the other parent.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Markes & Markes (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9396 of 2009
| MS MARKES |
Applicant
And
| MR MARKES |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings are parenting proceedings in relation to the parties’ two children, Y who was born in 2005 and is nearly 15, and X who was born in 2008 and is 12.
This matter has had an extensive history of litigation in relation to Y and X’s living and spend time arrangements. The children currently live with their Mother and spend time with their Father for two out of three weekends, from 6.00pm on Friday until 7.00pm on Sunday. The children spend additional time with the Father during the school holidays and on special occasions.
Background and procedural history
The Father was born in 1967 and is 53 years of age. The Mother was born in 1970 and is 50 years of age.
The parties commenced cohabitation in 2002 and married in 2003. They separated on 2 November 2008 and a divorce was granted on 12 March 2020. Property matters were resolved by way of an Application for Consent Orders filed on 11 October 2011.
The parties’ first round of litigation commenced by way of the Father’s Initiating Application filed on 6 February 2013. Those proceedings resolved by way of final consent orders being made by her Honour Judge Hughes on 30 September 2013. Those orders provided for a gradual increase of the children’s time with the Father increasing to an alternate weekend arrangement as and from 17 January 2014, being from 6.00pm on Friday until 5.00pm on Sundays, which such time to be extended by a day should the weekend adjoin a public holiday. The children were also to spend time with the Father for two hours each Thursday evening, additional time during school holiday periods and on special occasions such as birthdays, Christmas and Easter.
Following the making of those orders, the Father filed the first of three Contravention Applications on 28 February 2014. Those proceedings settled by consent on 8 April 2014, with the Mother conceding that she had without reasonable excuse contravened the orders of her Honour Judge Hughes. Orders were made by consent for the Father to receive an additional week during school holidays and an additional weekend during the school term by way of makeup time. The Mother was to complete a Post-Separation Parenting Course and otherwise pay the costs of the Father in the sum of $3,000.
The Father filed a second Contravention Application on 16 March 2016, which came before his Honour Judge Burchardt on 11 May 2016. His Honour heard the matter and determined that the Mother had contravened her Honour’s orders. His Honour placed the Mother on a good behaviour bond for a period of 12 months and she was further ordered to pay the Father’s costs thrown away in the sum of $4,000.
A third and final Contravention Application was filed by the Father on 1 February 2018. On 28 February 2018, his Honour Judge Kelly ordered the parties and X (as Y was attending school camp) to attend a Child Inclusive Conference. Upon hearing the oral evidence of the Family Consultant on 1 March 2018, his Honour determined that the Mother had again without reasonable excuse failed to facilitate the children’s time with the Father. His Honour ordered the undertaking of a further Child Inclusive Conference (with Y present) and adjourned the proceedings to 2 May 2018 on the question of penalty. I refer to and repeat the contents of my reasons of 20 February 2020 at paragraphs 5 and 6:-
A memorandum was prepared following the third Child Inclusive Conference and is dated 15 March 2018. The Family Consultant noted a number of issues with the Mother in particular, including that she appeared to be stopping contact in response to “unsubstantiated allegations of emotional harm”, and that Y is aligned with the Mother who fosters that alignment. The Family Consultant said X was “gutted” that he missed out on Christmas at his Father’s home in 2017 and he clearly articulated that he wanted time with the Father. Y however expressed “almost complete rejection of her father”, and said she did not want anything to do with him. The Family Consultant noted Y did not articulate why she felt that way, and was not always consistent in that view. It is deeply troubling that the Family Consultant observed both children’s mental health appeared to be compromised, with Y experiencing suicidal ideation, and X also self-harming. The Family Consultant identified that Y’s expressions of self-harm arose primarily as a result of the conflict between the parents, rather than arising out of the Father’s behaviour or treatment of her.
The Family Consultant recommended that the children’s time with the Father be increased. Additional recommendations included make-up time, that the counselling unilaterally arranged by the Mother in her home cease, for the children to have counselling at D Counsellors, for the Mother to be psychiatrically assessed and for the parties to participate in reportable family counselling.
On 2 May 2018, with the parties having had the benefit of the Family Consultant’s Child Inclusive Conference Memorandum, interim orders were made by consent increasing the children’s time with the Father to two out of three weekends from 6.00pm on Friday until 5.00pm on Sunday. Christmas arrangements were also reversed by consent and an order was made by the Court for the children to spend additional time with the Father over the long summer school holidays. A further order was made by consent for the Mother to be psychiatrically assessed and the children were also to attend upon a counsellor as agreed. The matter was again adjourned for the question of penalty to 14 September 2018.
On 27 August 2018 the Mother attended upon Dr E (“Dr E”) for the purposes of the preparation of a psychiatric assessment. The psychiatric assessment was not provided to the solicitors for the Father until November 2019. I will return to this psychiatric assessment – and the delay in its disclosure - later in these reasons.
On 11 September 2018, the Mother filed an Application for Extension of Time to enable the filing of an appeal against his Honour Judge Kelly’s findings of 1 March 2018. That extension of time was allowed by orders of his Honour Justice Kent on 18 November 2018 and the Mother’s Notice of Appeal was filed on 22 November 2018.
On 6 June 2019, the Full Court of the Family Court of Australia made orders granting the Mother’s appeal, setting aside the declaration and consequent orders of his Honour Judge Kelly, and remitting the Father’s Contravention Application filed on 1 February 2018 for rehearing.
That Contravention Application proceeded before me on 16 September 2019 where the parties resolved the matter by consent. The Mother again admitted to breaching the orders of her Honour Judge Hughes and entered into a bond of good behaviour for a period of six months. It was also ordered by consent that the Mother pay the costs of the Father in the sum of $3,000, with payment to be offset against any child support payable by the Father.
The effect of those consent orders was that all proceedings before the Court were then finalised.
Two days following the making of those orders, on 18 September 2019, the Mother filed an Initiating Application, seeking a reduction in the children’s time with the Father from two out of three weekends to alternate weekends. The Mother sought that as and from Y’s fourteenth birthday in 2019, her time with the Father be subject to her wishes. The Mother similarly sought that X’s time with the Father be subject to his wishes upon his fourteenth birthday in 2022. She further sought that the children be able to attend upon a psychologist or counsellor “that she deems appropriate”. The Father filed his Response on 6 November 2019, seeking that the Mother’s Initiating Application be dismissed.
The Initiating Application was originally listed in error before her Honour Judge Harland on 7 November 2019. As it had been less than 12 months since the conclusion of the previous proceedings the matter should have returned to my docket. The Registry emailed the Mother’s former lawyers and the Father’s lawyers on 6 November 2019 advising the parties that the matter had been re-listed to 28 January 2020 before me. Nevertheless, for some inexplicable reasons, the solicitors for the Father did not receive that correspondence. On 7 November 2019, Counsel for the Father attended at Court and there was no appearance by the Mother. Her Honour made orders that the matter remained listed before me on 28 January 2020 and that the Father:-
…be at liberty to make application to the Court before Carter J on 28 January 2020 to obtain a certificate pursuant to the Appeals Cost Fund in relation to legal costs he has incurred and in relation to the proceedings listed by the Court for an interim hearing initially on 7 November 2019.
The matter proceeded before me on 28 January 2020, on which occasion the Father sought that the Mother’s Initiating Application be dismissed on the basis of the ‘rule’ in Rice & Asplund [1978] FamCA 84 (“Rice & Asplund”), being that there was no change in circumstances that would warrant the re-opening of the parenting dispute. The Father on that occasion also sought a Costs Certificate issue for the lost appearance before Judge Harland on 7 November 2019. On that date I reserved my judgment in relation to both issues.
On 7 February 2020, correspondence was sent from my Chambers to the parties advising of a further listing of the matter for mention on 10 February 2020. On that date, I sought confirmation as to whether if I found the 2013 orders of Judge Hughes to be operative, the Father would continue to press his application pursuant to Rice & Asplund. That mention proceeded, however on 11 February 2020, Counsel for the Father sought to once again mention the matter as the Father’s position from the previous day had changed. The matter was re-mentioned on 11 February 2020 where Counsel for the Father confirmed that the Father would not pursue his application pursuant to Rice & Asplund should the 2013 orders be found to be operative.
On 20 February 2020, I delivered my judgment in relation to the Rice & Asplund issue and the Father’s application for costs resulting from the lost hearing on 7 November 2019. I determined, in summary, that further evidence ought to be adduced prior to the final determination of the Rice & Asplund argument. On that basis, I ordered the parties and the children attend a further Child Inclusive Conference on 6 March 2020. I otherwise adjourned the proceedings to 27 March 2020 for further hearing. I also declined to make an order for a Costs Certificate as sought by the Father.
Following the Child Inclusive Conference on 6 March 2020, the matter resumed before me on 27 March 2020 where I heard further submissions from each of the parties regarding what they viewed to be the operative orders. The Mother’s final position upon the conclusion of that hearing was that the she did not seek to pursue her Initiating Application and rather sought that the unvaried 2013 orders (being each alternate weekend with the Father) continued in operation. The Father’s position was that the 2018 orders (being those for two out of three weekends with the Father) were not interim orders and accordingly were not discharged at the conclusion of the contravention proceedings in September 2019. The Father asserted that if the Court agreed that the 2018 orders were the operative orders, the Mother’s Initiating Application ought to be dismissed. However, he said that should the Court be of the view that the 2013 orders were the operative orders, his position was that he would abandon his Rice & Asplund argument and there should be interim orders made that reflected the 2018 orders.
On 2 June 2020, I delivered my reasons for judgment resulting from the hearing on 27 March 2020. I determined, inter alia, that the 2018 orders were interim in nature, and as a result, they were discharged upon the conclusion of the contravention proceedings in September 2019. Rather, it was the 2013 orders that were the operative orders at that time. However, I took the view that Counsel for the Father was correct in the submission that whilst the 2013 orders were operative, those orders were not in the best interests of the children. I was of the view that the best interests of the children were served by the making of interim orders that reflected the 2018 orders, allowing for the children to continue to spend two out of three weekends in the care of the Father, and made interim orders to that effect. I otherwise determined that it was of significant importance that these parties and the children are able to bring an end to the extensive litigation before this Court. On that basis, I listed the matter for an urgent Final Hearing on 24 & 25 August 2020 with priority. Given the expedited nature of the Final Hearing and that the children had at this stage already attended upon numerous Child Inclusive Conferences, one as recently as March 2020, I determined that it was unnecessary to put the children through the stress of the preparation of a further Family Report prior to the Final Hearing.
By June 2020, the COVID-19 pandemic had resulted in all trials being conducted remotely via Microsoft Teams. The Final Hearing proceeded before me on 24 and 25 August 2020 via Microsoft Teams. I am satisfied that neither party was prejudiced by the matter proceeding online. I am also satisfied I was able to understand and assess the evidence as it was lead before me. Given the significant history of litigation in this matter, it was important to the parties that the proceedings draw to a conclusion.
The Child Inclusive Conferences and Family Report
Y and X have attended upon numerous appointments with Family Consultants since the commencement of the parties’ litigation in 2013. The children’s first Child Inclusive Conference occurred back in April 2013 and a subsequent Memorandum was prepared (“the April 2013 Report”). The parties then engaged Ms F (“Ms F”) who completed a Family Report in these proceedings dated 31 May 2013 and filed under cover of affidavit on 13 June 2013.
Whilst neither party included that Family Report as a document they relied on in these proceedings, the Mother has referred to it, and quoted from it in her Trial Affidavit. Accordingly, for completeness, I have included a summary of that report in these reasons.
X then attended another Child Inclusive Conference on 1 March 2018 (as Y was on school camp), with an additional Child Inclusive Conference being conducted on 13 March 2018 to ascertain Y’s views. Finally, Y and X attended on 6 March 2020 for their final Child Inclusive Conference and a Memorandum was prepared (“the March 2020 Report”).
The April 2013 Report
The April 2013 Report was prepared by Family Consultant Mr G (“Mr G”), who interviewed both parties and the children, then aged 7 years and 4 months with respect to Y and 4 years and 9 months with respect to X.
Mr G reported that following separation, the children had remained living with the Mother and had spent each Saturday afternoon with their Father from 2.00pm until 5.00pm. Following a mediation in mid-2012, the parties developed a parenting plan that continued this Saturday arrangement and also allowed for a single overnight on a Saturday night each alternate weekend. According to Mr G, one overnight period had occurred in early September 2012, however had not otherwise occurred. At the time of the April 2013 Report, the children had not spent any time with the Father since Christmas or Boxing Day in 2012, after an incident between the parents at that time that “reportedly caused distress to the children, and more particularly to Y” (“the Christmas incident”).
Following the Christmas incident, the Mother filed an Application for an Intervention Order against the Father, which was due to be heard shortly after the April 2013 Report was prepared.
In the April 2013 Report, the Mother highlighted to Mr G the beginnings of what she perceived to be Y’s reluctance to spend time with the Father. The Mother reported that there had been “some discrete instances” where Y was upset “with certain aspects of her father’s behaviour”, and that she had been “significantly distressed” following the Christmas incident, and “as a result is highly resistant to spending any time with her father”. Mr G confirmed that the Mother’s perception is that “Y would be highly resistant to spending any time with her father”.
At the time of the 2013 Report, the Father was seeking to resume the arrangements agreed upon in mediation, that he spend time with the children each Saturday, with each alternate Saturday being for an overnight period. The Mother was not of the view that this was appropriate. Mr G noted that both parents “attributed primary responsibility” for the Father not having spent overnight time with the children onto the other parent.
Mr G reported that:-
The reported reasons for Y’s distress and resistance to spending time with her father, whilst subjectively significant for Y, do not appear to be of an objectively concerning nature. Consequently, there does not appear to an [sic] objective basis for the children not to spend time with their father.
Mr G suggested a more comprehensive assessment could be utilised by the parties as to why Y has become distressed by her Father’s behaviour and resistant to spending time with him. However, the parties had at that time agreed to engage in a Family Report which would be able to address that concern.
Mr G said that it would be important for both children, and particularly Y, for spend time arrangements to recommence “in an environment that will be physically and emotionally comfortable and secure for them”. He agreed that the parties’ joint position that a designated play centre could be an appropriate venue “has significant merit to it”. Mr G also noted that it would also be important for Y and X “that their mother actively supports their relationship with their father and any arrangements for them to spend time with him”. Mr G said that without that support, the children would find it very difficult to spend time with the Father, and that this was “particularly important for Y” given her distress following the Christmas incident.
Mr G suggested that it might be helpful if the Father forwarded or expressed an apology to the children, particularly Y, in relation to the Christmas incident. Mr G said it was important that this apology was genuine and should be expressed in a manner that would make sense to the children and make them feel as though that sort of behaviour would not happen again.
The Family Report of Ms F
The parties and the children attended upon Ms F on 7 May 2013. Just four days after those appointments, the Mother unilaterally ceased the children’s Saturday overnight time with the Father, notwithstanding that she had told Ms F her intention was for time to proceed in accordance with the interim orders then in place.
Partway through her interview with Ms F, the Mother asserted that Y had disclosed that the Father had “inappropriately touched” her when she was in the bath. The Mother said she had advised the Department of Human Services (as it then was) who were investigating. However the Mother also said there was no immediate risk to the children’s time with their Father continuing.
Ms F said the Mother held contradictory positions and that her interview “threw up more questions than answers”. It was unclear to her whether or not the Mother believed Y had been sexually assaulted by the Father, and similarly unclear whether or not she supported the children having a relationship with him. Ms F observed “There are indications, however, that her own lack of trust and confidence in intimate relationships, is perhaps being transferred to Y”.
X was described as being “unmistakably very happy and excited to spend time with his father”, and Y “smiled at her father upon greeting him and remained happy throughout the session”. The children’s time with their Mother also proceeded unremarkably.
In her interview, Y said she wanted her parents to “Stop shouting; stop fighting; be more friendly; talk nicely to each other”. Y’s constant theme was that she wants her parents to stop being in conflict. Y was aware that the Mother does not feel the children are safe with their Father. Ms F said Y displayed a degree of anxiety during interview.
Ms F said she did not observe any indications that the children were fearful of the Father, and in fact had a secure attachment to him. The issue identified by Ms F was not that the Father frightens the children, but that they are distressed by their parents’ ongoing conflict and hostility to each other.
Ms F wrote:-
For the children, Y in particular, to feel confident and secure in spending time with her father, Ms Markes will need to give her emotional permission for the children, especially Y, to spend time with and have a relationship with their father; also noted by the family consultant.
Ms F recommended that the children remain living with the Mother and spend alternate weekends, and some mid-week time with the Father, together with a sharing of school holidays and special occasions.
Whilst this Family Report was prepared over seven years ago, many of the issues and themes identified continue to trouble this family. I note the Mother maintains in her trial affidavit filed on 26 July 2020 that the Father’s behaviour caused the children to be distressed, fearful and traumatised. She also repeated the allegation that the Father had inappropriately touched Y in the bath, whilst at the same time maintaining she does not consider the children are at risk of being sexually abused by him.
The March 2018 Conferences
The March 2018 Conferences were the result of the Father’s third Contravention Application filed on 1 February 2018. As I have set out, the matter came before his Honour Judge Kelly on 28 February 2018 where his Honour ordered a Child Inclusive Conference be undertaken on 1 March 2018. On 1 March 2018, the parties and X attended upon Family Consultant Ms H (“Ms H”), who then gave oral evidence to the Court that afternoon. His Honour then made orders for a further Child Inclusive Conference to occur on 13 March 2018 with Y present, and a subsequent Memorandum encompassing both dates was prepared by Ms H and dated 15 March 2018. At the time of this report, Y was aged 12 years and 4 months and X was 9 years and 8 months.
Ms H interviewed both parties and the children and witnessed a brief observation between the Father and X. Ms H identified the two main issues in dispute as:-
a)whether the children are at risk of “emotional and psychological harm” in the care of the Father; and
b)whether there is an alignment between the Mother and the children against the Father.
At the time of Ms H’s Memorandum, the Mother had again made an Application for an Intervention order against the Father, naming herself and the children as protected persons. The return date of that application was again, unfortunately, a few days after the Child Inclusive Conference on 16 March 2018. The Mother said she had made the application as she was “concerned for the children’s emotional wellbeing” and to “protect the children in relation to a threat she claims Mr Markes made against the child, Y”. The Father said that the allegations against him “are false and baseless and he is contesting the matter”, and that in relation to the alleged threat, “denies that such a conversation ever occurred”.
Whilst neither parent raised specific concerns in relation to the other parent’s mental health, concerns had been raised about the Mother’s “inability to facilitate an ongoing and consistent relationship” between the children and the Father, and “whether this is symptomatic of a broader undiagnosed mental health issue”. Ms H noted that the major concern relating to mental health was in relation to the mental health of the children. At that stage, the Mother had made allegations that Y had “experienced suicidal ideation and X has allegedly started self-harming”. The Mother said that she had sought the Father’s consent to have the children attend upon a psychologist however that consent was not forthcoming. The Father said that when the children spent time with him they “present as happy, healthy and well-balanced” and that whilst the allegations raised by the Mother were concerning, they “are in complete contradiction to what he sees when the children are with him”. The Father told Ms H that he did not object to the children receiving psychological support, however took issue with what he described as the Mother’s “alleged unilateral approach to the decisions about the children” and stated that he should be included. Ms H observed that:-
There is risk of emotional harm and the potential for compromising the children’s overall development if they are continually entwined within the parental conflict and not free to have a relationship with both parents.
Ms H reported that the relationship between the parents was “very challenging”, characterised by a number of “non-specific” concerns for the children’s safety made by the Mother for which she “could not provide any substantiation”. In relation to the Mother’s claim that the children’s mental health issues stem from their time with the Father, Ms H said that there was “no information to support this claim”, and further, the Mother was “unable to articulate” that connection. The Mother was noted as presenting “as using arbitrary parental gatekeeping, by way of stopping contact with Mr Markes, in response to unsubstantiated allegations of emotional harm”. Ms H observed that the alignment between the Mother and the children, and in particular Y, presented as being fostered by the Mother. The Mother had also unilaterally engaged an in-home counsellor for the children since January 2018 “to discuss their relationship with Mr Markes”.
The Father told Ms H that he sought the Mother’s compliance with the 2013 orders, and noted that he thought she could remain compliant, as there had been “no issue between the parties for the year” that the bond of good behaviour, imposed by Judge Burchardt on 11 May 2016, was in force, and issues only arose upon the expiration of that bond. The Father said that he wished to see the children more often. Ms H noted that the Mother was “currently making the decisions about discontinuing contact” with the Father, and that if the current circumstances were left unchecked, “on the current trajectory the result may well be both children refusing to have contact” with the Father.
Ms H observed X to be an articulate and intelligent boy with a good sense of humour. He told Ms H that he had “mixed emotions” about the litigation as he wanted to see both his parents but didn’t want to “choose between them”. He said he had been “gutted” about not getting to spend Christmas in 2017 with the Father, and spoke fondly of previous holidays with the Father and his partner, with whom X also had a good relationship. Ms H noted that X presented as “worried and concerned” about spending time with the Father, but “it appeared that it was more his mother’s worry he was reporting on”. X “clearly articulated that he does want to spend time with his father”.
Y presented to Ms H as enthusiastic and intelligent, expressing her love for school and learning. Ms H observed that when Y was challenged about conflicting statements, she would lose her train of thought, repeat statements, or “was vague in her accounts of difficulties” while in the care of the Father. Y openly discussed the counselling that the Mother had arranged at home for the children, noting that “she was very aware” that the Father did not know about it. Of concern was Y’s statement that the Mother “allegedly advises the children at the beginning of the week” if they will not be attending time with the Father, and that when this occurs it is because of “things happening between mum and dad again”. Ms H reported that “Y expressed almost complete rejection of her father…without being able to articulate a reason for this position”. Ms H also said that Y “did not consistently express this view”.
Ms H reported that the children often provide contradictory information, but expressed “frustration and resentment” towards the Father from the outset. The complaints made by them “presented as exaggerated, lacking in substance and fabricated”. Indeed, X acknowledged that he could not remember any incidents of the Father’s negative behaviour, but rather “predicted” that something could happen. In relation to their respective mental health concerns Ms H reported:-
a)Y said that the conflict between her parents presented as the main catalyst for her suicidal ideation. She could not provide any ideas as to how to improve her mental health as her parents “will always be separated and she will always be moving between their homes”; and
b)X said he punched himself when he gets upset and needs to punish himself. He said he did this when he makes the Mother cry, however presented as “confused or reluctant to express how often this occurs or why”.
Overall, Ms H noted that both children spoke fondly of each parent and were able to identify good things about both. Ms H recommended that he children remain living with the Mother and spend increased time with the Father. Make-up time with the Father after missing Christmas in 2017 was also recommended. Ms H said that should Y continue to refuse time with the Father, consideration should be given to an urgent assessment to determine whether this was as a result of the Mother’s “inability to facilitate time between the children and their father and if so, whether further steps need to be taken to remedy”.
As observed, these recommendations for increased time were reflected in consent orders made on 2 May, 2018. These remain the time spent arrangements currently in place.
The March 2020 Report
The March 2020 report was completed by Family Consultant Ms J (“Ms J”) on 6 March 2020. At that time, Y was 14 years and 4 months and X was 11 years and 8 months.
The Mother sought at interview the children’s time reduce to alternate weekends, which she based on the children’s initial positions to her that they “rejected this arrangement” and so she could spend time with the children on weekends. The Father sought the continuation of the two out of three weekends as well as additional time on the Thursday evening in the week he does not spend time with the children, along with an additional week (making a total of three) in the long summer school holidays. Ms J noted that the Father “sought for continuity and consistency in the relationships with Y and X”.
Y’s presentation at the March 2020 Report was markedly different to her presentation in March 2018. Ms J observed her to be nervous, “fiddling with a hair tie” as she does “often” to help with “anxiety” and “boredom”. She was observed to begin crying when asked further questions about feeling nervous. Y told Ms J that it was “a lot” being at her Father’s home for two out of three weekends, as this limited her ability to spend time with friends. She said that she would prefer spending one night per week with her Father, but would also be happy spending alternate weekends with him. Ms J noted that the Father was “agreeable to supporting Y to meet with her friends where appropriate and reasonable”. Y expressed feelings of anxiety when doing “normal fun activities” with the Father but enjoyed him taking her to her sports games on Saturdays.
Ms J noted that Y’s reported anxiety “seemed to centre on her feeling overwhelmed” with managing her feelings along with being “cautious” in avoiding her Father’s anger. Her experience of the Father’s anger related back to an experience three years earlier where the Father had responded negatively to the idea of Y getting a tattoo. Ms J noted that Y “seemed to catastrophize this particular experience as, in her view, nothing similar had occurred since”. Y took particular issue with an incident in 2019 where the Father squeezed a pimple on her face during her time with him, which in her view “reinforced her feelings that her father did not show awareness of her feelings and comfort levels”.
Y told Ms J that her Father made indirect and derogatory comments about the Mother, which was denied by the Father, although Ms J noted that the Father expressed some derogatory views at interview. The Father was reported as not having spoken to the children about Court proceedings, but that they sought answers from the Mother instead.
Y spoke positively of her engagement with her counsellor at D Counsellors, although noted that the Father was “defensive” about her levels of anxiety and had discouraged her from continuing to attend those sessions, while requesting monthly updates regarding her progress. The Father presented to Ms J as being “dismissive” of Y’s anxiety but claimed to be supportive of her continued attendance. Y also reported a positive relationship with the Father’s partner.
X once again presented positively at interview, being described by Ms J as “talkative and joyful” and “unreserved” in expressing his views. He reported that he found the current arrangements as “fine…fair” and although he spent less time with the Mother on weekends he could see her during the week. X noted that the arrangements worked better without the brief time on Thursday evenings as that was “a bit much, rushed”. He expressed his enjoyment of activities with the Father particularly surrounding their common interests. X became emotional and cried when asked about his parents’ relationship. He was observed to have minimised the impact that the inability of his parents to be in the same room was having on him, stating that he “accepted the situation”. He was negative regarding a formal counselling arrangement and no longer wanted to attend as it disrupted his Tuesday evenings and was at the Mother’s expense. X also talked fondly of the Father’s partner.
Both children described a supportive relationship with one another, with X describing “check-ups” between the children as a way of supporting each other, particular given how his sister “had some dislikes about spending time with their father”. Both children enjoyed the time with their parents and both wanted to have a relationship with the Father.
Ms J noted that the children “present with differing views about their relationships and time with their father” though this was not uncommon between siblings. She said that while Y had “reservations about her father’s capacity to emotionally attune to her needs”, the amount of time she would ideally like to spend in the Father’s home did not really differ in the number of nights, but was more about how that time should be configured. X did not express difficulties with the current arrangements but instead with his “emotional struggles with coming to terms with the parental separation”.
Ms J stated:-
Repeated applications to vary orders can be damaging to children’s stability, and entrench the existing conflict and hostility between the parents which Y and X have become exposed to by attendance at Court related events. Adherence to future Court Orders will be vital for these parents, particularly Ms Markes in light of the proven Contravention Applications and Good Behaviour Orders. The parents will need to work on resolving their resentment so as to minimise the risk of this becoming a source of conflict in the future.
Mr Markes and Ms Markes would benefit from accessing advice and guidance about how to support their children to traverse parental separation and future parenting arrangements in a child focused and emotionally attuned way.
Ms J, in making her recommendations, noted that further litigation was “unlikely to be helpful to the stability of these children”. She recommended that Y continue to engage with her counsellor at D Counsellors, with each parent to ensure they respect the privacy of those sessions. X was not recommended to continue however consideration was to be given to his re-engagement with his previous tutor. The Father was recommended to complete a ‘Tuning Into Teens’ program and the parents were also suggested to access sessions with D Counsellors “to address the issues identified in this assessment”.
Notwithstanding those clear comments of Ms J regarding the negative impact of court proceedings on the children, the litigation continued.
The psychiatric assessment of the Mother
In accordance with the orders of Judge Kelly on 2 May 2018, the Mother attended upon Dr E on 22 August 2018 for the purposes of the preparation of a psychiatric assessment in relation to her. That psychiatric assessment and report is dated 27 August 2018 and was filed under cover of affidavit on 27 July 2020. There is some significant controversy surrounding this report, as for reasons that remain to be fully explained, neither the Mother nor her solicitors provided a copy of this report to the Father or his legal representatives until November 2019, some 15 months after its preparation.
The psychiatric assessment was completed by Dr E prior to the Mother filing her Notice of Appeal in relation to the orders of Judge Kelly from 2 May 2018. At the time of the report, Dr E noted that the Mother’s lawyers “contend that the Court may not have followed proper process to the detriment of the Wife” and were awaiting a transcript of the proceedings from 2 May 2018.
The Mother identified to Dr E that the psychiatric assessment was for the benefit of the Judge, “to understand better where I am at regarding the decision he would make”. She told Dr E in relation to penalty that “I thought a bond would be fine” but became tearful when questioned about the seriousness and possible consequences of the contravention proceedings.
The Mother reported that the children had always lived with her and that she “did not wish to put that relationship with the children at risk”. She said she found the circumstances leading up to the contravention proceedings as trying and difficult, was overwhelmed and developed insomnia as a result.
The Mother told Dr E that the most recent round of contravention proceedings resulted from a disagreement between Y and the Father in August 2017, where she had sought to have her ears pierced in time for Year 6 Graduation and he thought it should be done after. The Mother said that the Father’s response to Y’s request was “very threatening and awful” and that Y was “visibly pale and shaken”. The Mother reported that the Father had said to Y she would need to wait until she was 12 to have her ears pierced. Dr E reports:-
She said that Mr Markes had spoken to her in the kitchen and told her that she’d have to wait until she was 12 for the ear piercing to occur. He added that she wasn’t to get a tattoo, and if she came home with tattoos (pointing to the knife on the kitchen bench used for cutting vegetables), that such a knife could also be used if she was to come home to the house with a tattoo.
The Mother says that Y was “really, really affected” by the implied threat made by the Father. The Mother said that she felt she “had to act to protect her and advocate for her”. Following this incident, the Mother made an Application for an Intervention Order in November 2017.
Following this incident, the Mother said that Y’s mental health “deteriorated” and she developed “some alarming thoughts”, including thinking “it’s all too hard” and “I don’t want to live anymore”. The Mother alleged that following a weekend in the Father’s care in November 2017, Y came home distraught with “an urge to stab herself with a knife”. The Mother says “I was doing the best I could to support her”. Following that incident, she reported that Y “developed a fixation” about getting a dog to comfort her, and became “uncontrollable and incoherent” and irrational at times.
The Mother reported that upon the children engaging counselling and due to the fact that she had taken out an Application for Intervention Order against the Father, she was feeling “some relief” and “generally feeling more positive about the children’s welfare” when in the care of the Father.
Dr E also noted Ms H’s observations that X had clearly articulated that he wanted to spend time with the Father, which was “in clear contrast” to the Mother’s statements to Dr E:-
…that X was afraid of his father who was belittling, bullying and denigrating of him, and was so distraught that he refused to attend without Y, and on the basis of her concerns, withheld Y, and X didn’t attend either.
In relation to the counselling unilaterally engaged by the Mother, she reported that she initiated that counselling for “the three of us” in December 2017 as a result of a “very difficult and stressful time” where she was particularly concerned about “the deterioration in Y’s health and her wish to support her as her mother” along with frustrations regarding a lack of assistance from her legal representatives at that time. The Mother said in relation to Y’s mental health that “It all snow-balled” and she felt that Y “was in danger and very unwell”. It was a result of those views that she decided to withhold Y from the Father throughout December 2017 and January 2018, as “For her to have to be in the company of her father was a further risk”.
Dr E recites that the Father had not been supportive of the counselling and “described the children as fine”. The Mother reported X saying to her “why is he so cruel”, and Y had told her that if X made mistakes when reading, the Father would denigrate him resulting in X making comments such as “I’m a f-king dumb prick”. The Mother recounted a “major episode of self-harm involving X punching himself in the face repeatedly” which had been another significant concern to her.
However, the Mother reported that since obtaining new lawyers and since the completion of the March 2018 Conferences, along with the children now receiving counselling treatment, “her concerns have lessened somewhat”. She reported that this had also improved with the addition of the children spending time with the paternal grandmother, which made the Father and his partner “generally be more co-operative”. The Mother said that as a result, Y’s mental health “has improve a lot” and “whilst X remains rather withdrawn, at least has not been self-harming”. X and Y had at this time been spending two out of three weekends in the Father’s care since May 2018, a period of nearly four months.
Dr E questioned the Mother as to her views of the children’s relationship with the Father and her perceptions of him. He reported:-
She began by saying that it was important for the children to have a relationship with their father. I asked her whether she considered the children to be safe with him. She was hesitant about this, stating that whilst things had improved and she was feeling more confident, considered the manner in which he had acted had been harmful to them, adding that in her perception his treatment of the children in some way related to his wish to punish her.
The Mother told Dr E that the first Contravention Application in 2016 arose as a result of the Father moving from Suburb C to Suburb T, and her not being able to transport the children there for their weekly dinner with the Father, a subject on which the Father refused to negotiate. This resulted in her not providing the children on the advice of her lawyer because if she took them “that would be it”. She recounted being placed on a good behaviour bond and having to pay the Father’s expenses, setting out her view that the Father is very money-driven and “keeps trying to punish her that way”.
The Mother also recounted the period around Christmas in 2012 where she refused the Father’s time with the children. She recalled that this was because he hadn’t provided her prior notice of his intention to spend time with the children on Christmas day, which was “not consistent with the Father’s reference to the serving of an email in plenty of time for that to occur”. She recalled the Father “aggressively banging on the door” that day and stated that “I find him aggressive, he’s quite scary”.
She also described the Father as intimidating and very controlling, and she considered herself as not having a voice even now. She characterised the Father as being “distant” during the marriage and blaming her for things that were not justified. There was no violence or verbal abuse between the parties “despite her concerns” and following the conclusion of the relationship she felt “hurt, disappointed and disrespected”. She had not re-partnered at the time of the assessment and said she became “self-reliant” and her trust was affected. She viewed the Father as “…very controlling. He’s trying to make me pay financially, he’s out for revenge”. She also considered him to be “controlling…demeaning, denigrating and threatening” to the children.
The Mother confirmed that in the Family Report prepared by Ms F she had raised concerns about “sexual molestation allegations” resulting from the Father “inappropriately touching Y’s private parts in the bath when he washed her”. Dr E noted that “those allegations were evidently not substantiated”.
The Mother stated she found the children spending time with the Father “hard because of all that’s gone before”. She felt as though Ms F had not listened to her in the preparation of the Family Report and said “It made me fight” in relation to Y’s disclosures.
Dr E summarised the Mother’s emotional state as follows:-
a)in relation to her mood, she felt “alone and overwhelmed” at times and more recently had felt “unsupported by her previous legal team”. She stated that “It’s been very hard”;
b)her spirits were low as the recent proceedings “impacted on her emotionally” and were “distressing”. She referred to herself as “miserable but was never suicidal” and referred to the period from December 2017 until March/April 2018 as “a critical time” where she “felt alone”; and
c)anxiety had been “part of her life for a number of years” which “heightened in the context of the current proceedings”. She indicated there had been eight days in Court since November 2018 and prior to that “ongoing litigation…with a Final Hearing in 2013”. She said the proceedings have “dominated her life” but the “love of her children” has kept her going, and despite contravention proceedings, she “had a duty to protect them”. Following the Intervention Order application, counselling and legal support, her anxiety levels had more recently “settled to a large degree”.
The examination of the Mother’s mental state can be summarised as follows:-
a)her mood was anxious, and at times became tearful at which time her mood became low. Rapport was limited but improving and the Mother appeared wary throughout interview;
b)the Mother was “a hesitant historian” who was “careful with her answers”. Her speech was otherwise normal;
c)despite there being no history of domestic violence or abuse reported, and no traumatising features such as hyperarousal, wariness, flashbacks or nightmares, Dr E observed:-
There was a conveyed sense of longstanding conflict with the Husband emanating from her experience of him during the marriage with a resultant sense of grief, disappointment and lack of trust in him both as a husband and father.
d)her memory, concentration and perception were all normal and insight was present.
Dr E opined that the Mother “described symptoms consistent with an Adjustment Disorder with Depressed and Anxious Mood”, which rose to “clinical significance” throughout the 2018 contravention proceedings. He recorded that those symptoms were “largely in remission” following the Mother applying for an Intervention Order and obtaining new legal representation.
Dr E observed:-
The driving factor in respect to the three Contravention Order proceedings and prolonged litigation from a psychological perspective relate to Ms Markes’s negative experience of Mr Markes who she describes as controlling, dismissing of her concerns, and generally not interested in her emotional wellbeing. She spoke of her sense of disappointment, hurt and lack of trust as a result of that experience of him during the marriage, and those affects have continued to drive her concerns about Mr Markes’s relationship with the children.
At all times Ms Markes considered that those actions occurred out of her wish to protect the children who she reports as having developed a similar view of their father as she had of him as husband [sic]. In keeping with aspects of the unresolved issues with Mr Markes, the allegations continued, at one point involving sexual abuse of Y, those allegations not being substantiated. From early on in the post-separation period, it is Ms Markes who impresses as the controlling party in regard to her determinations and demands upon the Husband, insisting that she have contact with the children each Christmas, and I found her descriptions of the reasons leading up to the circumstances of the 2012 Christmas period contact to be unconvincing.
Dr E came to the conclusion that he was “not convinced that her behaviours occurred as a result of a serious psychiatric condition or mental illness”, but were rather “driven by emotions of an unresolved nature involving mistrust and/or hurt” emanating from the parties’ failed marriage. Dr E assessed it as apparent that the Mother “continues to displace her unresolved issues” with regard to the Father and observed that those unresolved emotions have been “displaced upon the children who present quite differently as noted in their father’s household to that in hers”. He noted that:-
It is the emotions of hurt, mistrust, anger and disappointment that drive Ms Markes’s beliefs about the Husband which as indicated have been displaced upon the children, who despite their stated opposition to having contact with him, appear to have managed a reasonable relationship with their father nonetheless.
The Mother’s treatment of the psychiatric report
As observed, Dr E’s assessment was prepared to provide the Court with some understanding of the Mother’s mental health prior to determining the penalty to be imposed following his Honour Judge Kelly’s finding that she had contravened the 2013 orders. Notwithstanding that intention, the report was not provided to the Father or to the Court prior to the hearing on 16 September 2019 before me.
The Mother was initially scheduled to attend upon Dr K for the preparation of the psychiatric assessment. On 1 May 2019, the Father’s solicitor wrote to the Mother’s lawyer requesting a copy of Dr K’s report.
On 6 May 2019, Rigoli Lawyers, who were then acting on behalf of the Mother sent an email advising “There is no report from Dr K”. They did not advise that Dr E had in fact at that time prepared a report.
At 1.57pm that day, the Father’s solicitors sent an email as follows:-
Thank you for your confirmation that there is no report from Dr K regarding Ms Markes. I assume from your email of earlier today that no psychiatric assessment or report of or in relation to Ms Markes took place or was prepared or obtained from any psychiatrist, including Dr K, on or after the making of the Federal Circuit Court Order of 2 May 2018. So that there is no uncertainty or future misunderstanding (in the event that, for example, Ms Markes was ultimately assessed by some other psychiatrist pursuant to the Consent Order made by the Federal Circuit Court on 2 May 2018), please also confirm that no psychiatric assessment or report of the type referred to in the Consent Orders made by the Federal Circuit Court on 2 May 2020 has occurred or been prepared or obtained from any psychiatrist.
At 2.20pm, the Father’s solicitors wrote again by email seeking clarification that no psychiatric report has been prepared, so that “settlement discussions will be able to proceed with each party and their representatives being properly informed and on an equal footing in that regard”.
At 2.30pm, the Mother’s lawyers responded:-
In relation to your email below regarding a psychiatric report, please note the following:
a. We do not intend to rely upon any psychiatric evidence in relation to our client at the present time;
b. There are no parenting proceedings presently before the court;
c. Rule 13.01(3) [of the Family Law Rules 2004 (Cth) (“the Family Law Rules”)] specifically states that the rule does not apply to contravention proceedings; and
d. Rule 15.55 [of the Family Law Rules] does not apply as it relates to parenting proceedings.
e. Consequently we will not be complying with your requests about whether or not our client has obtained a psychiatric report.
I note that Dr E’s affidavit sets out that his reports was prepared “In accordance with the Interim Order made 02 May 2018”. In the body of the report he observes:-
I understand that the purpose of the assessment is to assess the Wife prior to the return to Court on 14th September 2018 for determination of a penalty to be imposed.
In the circumstances, it appears that there was a deliberate – and significantly misguided – effort made to prevent the Father and the Court from receiving Dr E’s report prior to the contravention proceedings being finally determined. That reflects poorly on both the Mother and her then-lawyers, who sought to hide behind the Family Law Rules notwithstanding the Court orders and the purposes for which the report was so clearly prepared.
The Mother then referred to the report in her affidavit filed contemporaneously with her Initiating Application on 18 September 2019. This was the first the Father knew she had in fact been psychiatrically assessed. Curiously, the Mother says only this in respect to the report:-
On 27 August 2018 Dr E completed his psychiatric report. Dr E expressed an opinion that the symptoms that I described were consistent with an adjustment disorder with depressed and anxious mood, but that I did not have any serious psychiatric condition or mental illness
The Mother repeats that statement, and only that statement, with respect to Dr E’s report in her trial affidavit at paragraph 128.
Given the totality of Dr E’s report and the core issue he raises regarding the Mother’s unresolved emotional issues and the impact this has on the children, the Mother’s summary is significantly lacking. From the evidence given by the Mother it appears she has taken few, if any, real steps to address the issues regarding her emotional functioning as identified by Dr E.
The evidence at Court
The Mother sought to rely on her affidavit filed on 27 July 2020, along with the March 2020 Report by Ms J and the psychiatric assessment of Dr E. The Mother did not seek to call either of those or any other additional witnesses.
The Father sought to rely on his trial affidavit filed on 29 July 2020 as well as an additional affidavit in reply on 11 August 2020. He also sought to rely upon the psychiatric assessment of the Mother by Dr E as well as the Child Inclusive Conference Memorandums of Ms H and Ms J. Similarly, the Father did not call any additional witnesses.
Accordingly, the evidence of Ms H, Ms J and Dr E is unchallenged.
The Mother’s evidence
When the matter was before me on 27 March 2020, the Mother’s position was that the 2013 orders should remain in full force and effect. However, in her trial affidavit filed on 27 July 2020, she effectively sought orders in accordance with her Initiating Application, namely that the orders for the children’s time should be subject to their wishes once they are 14 years of age. That would mean that as of now, Y would be able to determine whether or not she sees her Father, and the arrangements for that time.
The Mother also sought orders that X’s time with the Father be reduced to alternate weekends, and to one week in the long summer holidays, together with half of the school term holidays as recorded in the 2013 orders. She also proposed a sharing of Christmas Day and time with the Father on Father’s Day. He would then determine the arrangements for time with the Father following his fourteenth birthday in 2022. She was concerned that the current arrangement for weekends restricts the leisure time the children are able to spend with her, and allows the Father to have more ‘fun’ time with the children without having to attend to the weekday responsibilities.
Additionally, the Mother sought orders permitting her to arrange counselling for the children as she “deems appropriate”. It is clear that the children’s attendance at counselling has been a contested issue, with the Mother arranging counselling for the children in 2018 without the Father’s knowledge. The children subsequently attended counselling by agreement with Ms L at D Counsellors. I understand X no longer attends, but that Y does on occasion. The Mother says the Father has been dismissive of the children’s emotional and mental health needs, and has inappropriately refused counselling for the children. She notes that Ms F recommended counselling but the Father would not agree. She is concerned the Father is still dismissive of Y’s anxieties as described by Ms J. She says if the parties have to agree, this will be a further cause for conflict and dispute.
The Mother also sought orders that there should be a more appropriate sharing of the children’s transport. She sought orders that the Father collect X from school on the Friday afternoon and the Mother collect X from the Father on the Sunday evening. She says that would avoid the Mother having to drive to the Father’s home on Friday evenings in peak hour traffic.
During the Final Hearing there was an agreement reached that every third Thursday the children would spend time with their Father, for a meal. That time is to occur near the children’s home. There was a disagreement as to the changeover arrangements. The Father proposed the Mother deliver the children to the home of the paternal grandmother, who lives just minutes from the Mother’s home, and he would return them at the conclusion of time. The Mother proposed the Father collect and return the children to and from her home.
The Father’s evidence
The Father sought orders that the current weekend arrangement and extended summer holiday times remain in place. As noted, he proposed there be a Thursday meal after the second consecutive weekend, and he was happy to spend that time near the children’s home. He anticipated either taking the children out for a meal, or having a meal with the children at the home of the paternal grandmother. It is common ground the children have a good relationship with their paternal grandmother and enjoy spending time with her.
The Father also said that he had become unemployed, but that he had two verbal offers “on the table” and that he was expecting a written offer to be provided within a few days. He said the employment was in the same industry and accordingly his work hours would remain unchanged. His longstanding hours have been that he commences at around 6.00am and finishes at around 6.00pm or 7.00pm, five days per week. He said as a senior member of a team he could not leave early.
He said given his hours, he could not collect the children on a Friday from school, nor have the children overnight on a school night. He said further given the insecure job market at the moment, he could not make demands of his yet to be new employer that he leave early on Fridays to collect children.
The Father gave his evidence in a forthright and straightforward manner. I accept his evidence, including his evidence as to his anticipated work hours, notwithstanding he was unable to produce a current work contract.
The law
Part VII of the Family Law Act 1975 (“the Act”) guides the process in relation to the making of parenting orders. Section 60B of the Act sets out the objects of that Part. The objects are to ensure that the best interests of children are met, and therefore act as a guide:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that in deciding whether to make a particular parenting order, the best interests of the children must be the paramount consideration.
The primary considerations
When determining the best interests of Y and X, there are two primary considerations and several additional considerations which I am required to take into account.
Section 60CC(2) of the Act sets out the two primary considerations:-
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the latter, being the need to protect Y and X from harm.
The parties agree that the children do benefit from having a meaningful relationship with both of their parents. The Mother asserts that this will continue, even if time moves to being at the determination of each child as they turn 14. For the reasons I set out below, I have significant reservations about that. In my view, there are real risks that given the entrenched conflict and distrust between the parties and the history of this matter, the children’s relationships with their Father will be diminished if there are no clear and precise orders in place setting out the time spent arrangements. The children would then be deprived of the benefits that flow to them from having the Father involved in their care and development.
In relation to the question of harm, it is an undercurrent of the Mother’s evidence that she believes there are risks to the children at least emotionally in the Father’s care. I note the Mother sets out at length in her trial material incidents that she says caused her and the children to be frightened, concerned and traumatised, starting from the Christmas incident in 2012. She included the reference to Y having made disclosures of inappropriate touching in 2013. She said she included that, together with the two incidents of the Father squeezing Y’s pimple and/or blackhead to show that the Father does not respect Y’s space and has different standards of what he thinks is acceptable. She said she was firm that there was no molestation, but maintained he may have “invaded her personal space”. The Mother also included her allegations of the children’s threats to harm themselves, and allegations of actual self-harm.
I note that none of the various Family Consultants have raised concern that the children are at risk of harm in their Father’s care. The risks to these children that have been identified are that they have unfortunately endured and been exposed to their parents’ ongoing, chronic conflict. Additionally, it is clear from Dr E’s report that there are risks that the Mother misplaces her angst and unhappiness with the Father onto the children, subjecting them to emotional pressure and influence.
Neither Dr E nor the Family Consultants were required for cross-examination. I am satisfied that the children are not at risk of harm in their Father’s care as asserted by the Mother. I share the concern expressed in particular by Ms J that it is the ongoing conflict and hostility between the parties that is damaging to the children’s stability.
Parental responsibility
Pursuant to section 61DA of the Act, I must apply a presumption that it is in the best interests of Y and X that their parents have equal shared parental responsibility for them. This presumption shall apply unless there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the children, or there is otherwise evidence that it would not be in the children’s best interests if parental responsibility was shared.
In any event, the parties agree that the 2013 orders should continue insofar as they relate to the parties sharing parental responsibility for Y and X.
In terms of the legislative pathway, the parties agree that a shared care arrangement is neither practicable nor in the children’s best interests. The parties appear to agree that there should be substantial and significant time, but disagree as to the way time should be structured, and whether or not it should be at the children’s discretion from the age of 14.
The additional considerations
I must also consider the additional matters as set out in section 60CC(3) of the Act.
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
The Mother maintains in her trial affidavit (para 162) that the children have reported to her that they are “struggling” with the current arrangements and that they were “extremely averse” to spending two out of three weekends in the Father’s care. It is difficult to reconcile the Mother’s observations of the children with the views they expressed to Ms J as already set out in these reasons.
Ms J did not form a view that the children’s time with the Father should be reduced, notwithstanding the various views that were expressed by them when she saw them for the purposes of the March 2020 report. Ms J was not required for cross-examination.
It is the Mother’s case that Y is old enough to express her views and for them to be given significant weight. She says the views expressed by Y in the March 2020 Report – that she would be happy with two nights each alternate weekend – accurately reflect her view that she does not want time two out of three weekends. However, the Mother effectively ignores Y’s other statements to the Family Consultant including that she would ideally like a night each week with the Father. I note further that Y described the current arrangements as “a lot” and that it limited her capacity to spend time with her friends. Nevertheless, she is not observed by Ms J as struggling or not coping with the current arrangements.
In light of the Mother’s position that Y would be happy with two nights each alternate weekend it is difficult to understand why she does not seek orders for that, but instead proposes time be determined by Y. It seems her motivation for doing may be that she anticipates Y being reluctant to attend in the future, and if Y is free to decide she does not want to go, then the Mother would not be in contravention of the orders.
I note that Y will be 15 years of age in November, and accordingly weight is to be given to her views. However, they are not determinative of the matter and I must take into account all relevant considerations, including the likely impact of the Mother’s attitude on Y’s expressed views.
The Mother deposes that Y has expressed to her that she is unable to see her friends as often as she would like, and that the Father has not allowed her to see friends when she is with him. The Father’s evidence was that Y has not asked to see friends when she is with him but that he would facilitate time if she wanted that. Given the stress and conflict in this matter, it may be not be surprising if Y felt unable to approach this with the Father.
In relation to X’s views, he told Ms J that the current arrangements were “fine…fair”. He did not express any desire for his weekend time with the Father to be reduced.
It is apparent from the Mother’s material and her evidence at trial that she continues to attribute the children’s reports to her of discontent or upset to the Father’s relationship with the children. It is unfortunate that notwithstanding the observations made by the various Family Consultants and by Dr E that the Mother has not, or cannot, reflect on her role in the dispute, conflict and discomfort experienced by the children.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
Ms J set out in the March 2020 Report that the children both appear to have an enjoyable relationship with their Father and want a relationship with him.
Whilst Y expressed some reservations about the Father’s capacity to be emotionally attuned to her needs, those concerns need to be seen in the broader context which includes her apparent alignment, to a degree, with the Mother.
It is not in dispute that the children have a close and loving relationship with the Mother.
The extent to which the parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
By and large, it appears the parties have been engaged in making decisions about the children’s care, welfare and development.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
It does not appear to be in dispute that the parties both meet their obligations in this regard.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
The Mother proposes three significant changes. Firstly, a reduction in the weekend time. Secondly a reduction in the long summer holiday time and thirdly that time be pursuant to the children’s wishes upon attaining the age of 14.
Changing the weekend time
If time were to occur each alternate weekend, the children would have more leisure time in the Mother’s care. The Mother said that would enable Y to spend more time with friends, as well as secure part-time work. However, it would reduce the time the children currently enjoy with their Father. Although the parties both live in metropolitan Melbourne, it is common ground that due to driving times, it is not practicable for the weekend time to be extended to include Sunday night, or for overnight time to occur mid-week. Accordingly, a reduction in the number of weekends the children spend with the Father cannot readily be ‘made up’ for by extending the weekends or adding in mid-week time.
I note the Father’s evidence that he would facilitate Y wanting to spend time with friends, and drive her to and from work if she had shifts, during weekends she is in his care.
Reducing the summer holiday time
I am unclear as to why the Mother seeks a reduction of the Father’s time over the long summer school holidays. There did not appear to be any persuasive evidence from the Mother as to why the two-week block should not continue. Reducing the holiday to a one week block would deprive the children from the opportunity to spend an extended holiday visit with their Father.
Making time subject to the children’s wishes from the age of 14
In relation to the proposal that time be as chosen by the children at 14, in my view, and notwithstanding the Mother’s evidence that she expects the children will elect to spend time with the Father, that change is likely to have significantly negative consequences for the children.
It will put the children squarely in the centre of their parents’ conflict, landing them in the unenviable position of having to choose whether or not to spend time with the Father. In circumstances where I have significant reservations about the Mother’s genuine capacity to promote and foster the children’s relationship with their Father it seems likely that the children may feel uncomfortable expressing to their Mother that they would like to see the Father. The trajectory for the children’s relationship with the Father would in all likelihood be poor.
I note the history of this matter, and in particular the Mother’s unilateral determination to cease time over Christmas and the long summer holiday periods in 2013/2014 and 2017/2018 and to cease mid-week visits in early 2016. Whilst acknowledging that she contravened the operative orders when she did so, she does not resile from what she says the children were expressing to her about being fearful or traumatised by the Father, leading to her ceasing time over the summer holiday periods.
I further note the unchallenged evidence of Dr E that it is the Mother’s unresolved emotions of hurt, mistrust, anger and disappointment are what informs the Mother’s negative view of the Father and his parenting. The Mother has taken no steps to address these matters. Accordingly, it remains likely that without precise, prescriptive orders in place for the children’s time, the children’s relationship with their Father will be further threatened.
I note also the Mother’s treatment of Dr E’s report, and her apparent determination to withhold a pivotal piece of evidence from the Father and the Court prior to the conclusion of the contravention proceedings. Added to this is the Mother’s arrangement of the secret, at-home counselling for the children without the Father’s knowledge or consent. I am concerned that these matters appear to reflect that the Mother may not always act in good faith, and I accordingly approach the Mother’s proposals with some caution.
It seems that there is a real and significant risk that the orders sought by the Mother would result in an immediate diminution of Y’s time with the Father, and potentially a severing of that relationship. If that occurred, X would be required to navigate the emotionally difficult situation of spending time with the Father in circumstances where his sister – with his Mother’s support – has determined not to do so.
Additionally, when asked how she thought the children’s views could be ascertained and communicated to the Father it was apparent she had given this little thought. Neither Counsel for the Mother nor the Mother herself were able to articulate how requiring Y to navigate time with her Father could actually be workable, given her anxieties, and the level of conflict between the parties.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
The Mother lives in Suburb M and the Father in Suburb T. There is some dispute about the travel time, in peak hour, between the parties’ homes. Currently the Mother drives the children to the Father’s home on a Friday. She says this is difficult and time consuming, and proposes instead that the Father collect the children (or at any rate, X) from school. The Father says he is unable to do that as a result of his work hours.
At the time of trial the Father was not in employment, but was expecting an offer of employment forthwith. That prospective employment is in the same industry, and would require him to work the same hours as I have previously set out. He says, accordingly, that it is impracticable for the children to stay overnight on a Sunday or on a school night. He says it also makes it impracticable for him to collect the children on a Friday afternoon.
I note the parties live 16 kilometres apart. The Father says that is a 25 minute drive. I accept that at peak hour, the travel time may be extended. However, it is not so onerous that it will substantially affect the children’s ability to have a relationship with both parents.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
Both parties are able to meet the majority of the children’s needs. However, it is apparent that both parents have allowed their distrust of the other parent to impact on their capacity to meet the children’s emotional needs at times.
For instance, the Father is described by Ms J as being dismissive of Y’s anxieties. The Mother shares the concern that the Father lacks insight into Y’s anxiety, which she says has been reflected in his refusal to allow counselling, other than through D Counsellors. The Mother also complains the Father does not adequately respect boundaries, which has caused the children upset on occasion.
In my view, the Mother’s proposal for the children to make the determination about the time they spend with their Father from the age of 14 reflects limited insight into the children’s emotional and developmental needs. I note that when asked if putting the children in the position of having to tell their Mother whether or not they wanted to see their Father would be awkward for the children she said “I don’t know, I don’t think so”, then “I suppose” and then later “I understand that maybe it does put the children in a difficult position”. However, she maintained her position as to the orders sought by her. I did not get the impression the Mother had previously considered the implications of her proposal in this regard.
Similarly, the Mother’s decision to arrange the at-home counselling for the children suggests limited insight. The Mother appeared unable to comprehend the impact on Y of participating in counselling that was kept secret from the Father. She demonstrated no insight that this would send a message to Y that the Father does not care about her emotional or psychological health, that only her Mother can meet her needs in that regard, and that the Mother and children need to work in secret to keep the children safe.
I note the Mother’s oral evidence was that by arranging for that in-home counselling she was not breaching the 2013 orders. Order 16 of those orders provides that both parties are restrained from “taking the children to any counsellor, psychologist or psychiatrist without the prior written agreement of the other or order of the Court”. The Mother said that “technically” the person she engaged was not actually a counsellor, but rather a social worker, and that she was not “counselling” the children, but providing the children with support and the opportunity to talk about conflict or issues that are bothering them within the family. It is difficult to see how that is not counselling.
The Mother said she had the 2013 orders in mind and was satisfied she would not be in breach as N Counsellors did not call the service offered “counselling”. She said in her oral evidence that she thought it was her parental duty to do what she could to support the children. That evidence is troubling. It suggests a very careful consideration by the Mother of the ambit of the orders, and a deliberate intention to try to achieve an outcome she desired even though that was obviously in conflict with the spirit of the order.
Additionally, the Mother has not taken any steps to address the issues that have been raised in various reports in these proceedings, including that she does not appear to encourage and foster the children’s relationship with their Father, that Y is becoming aligned with the Mother and that the Mother acts as a gatekeeper, stopping contact in response to unsubstantiated allegations of harm. It was Dr E’s position that the Mother does so, as she is driven by unresolved personal issues for her arising out of the breakdown of the marriage, which she then displaces on to the children. Dr E’s evidence is that the Mother’s beliefs about the Father and the risks he poses and his perceived parental deficiencies are formed from her emotions of hurt, mistrust anger and disappointment. That evidence was unchallenged, and apparently accepted by the Mother, who in her oral evidence accepted she had taken almost no steps to address these issues. At best, she told the Court she had called a counselling line on the telephone every now and then, but had not taken any steps to arrange and attend ongoing counselling for herself. When asked why she had not sought counselling for herself, she could not really offer an explanation, said she had not read Dr E’s report for a while and it had not been on her mind. Given that Dr E plainly identifies that the Mother’s unresolved emotional issues are a significant driver of the conflict, the allegations of risk, the contraventions that follow and the litigation as a result, it reflects poorly on the Mother and her level of insight that she has not more carefully examined her role in the dispute.
The Mother deposes at paragraph 167 of her trial affidavit that she acknowledges both parties have played a part in the conflict to which the children have been exposed. However, the flavour of her oral evidence was substantially that it is the Father’s behaviour that continues to be problematic, and it is the Father’s treatment of the children, and Y in particular, that causes issues, rather than the Mother’s attitude towards the Father and his relationship with the children.
It is clear that in respect of any counselling she may have received, little headway has been made in assisting the Mother to gain insight into how her views of the Father impact and affect the children.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
Matters relevant to this consideration have already been outlined in these reasons.
If the children are Aboriginal or Torres Strait Islander children
This is not a relevant consideration to these proceedings.
Attitudes to the children, and to the responsibility of parenthood demonstrated by each of the children’s parents
I have already outlined my concerns regarding the parties’ respective attitudes and parenting.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
There are no current intervention orders on foot. I note the Mother asserts the Father has acted at least in the past in a manner that has caused her to feel fear and alarm. She sought an Intervention Order in January 2013, which was withdrawn by her shortly afterwards. She sought another Intervention Order on 30 November 2017 including herself and the children as affected family members. That order was made ex parte on an interim basis. It was listed for hearing on 17 July 2018 and on that date was finalised by consent, with the Mother withdrawing her application on the basis of mutual undertakings being made to continue until 16 July 2019. There is no evidence that the Father ever breached the Intervention Order or the undertakings.
At the Final Hearing before me, the Mother’s case did not focus on allegations of family violence.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
The parties in this matter have had an extensive seven-year history of litigation before this Court. That litigation has included two Initiating Applications as well as three Contravention Applications. It is vital for the stability and security of Y and X, and their relationship with each of their parents that these proceedings come to an end. I intend to make orders that will carry through until these children reach adulthood without the further need for any future litigation.
Orders to be made
Doing the best I can, and weighing up the considerations, including the children’s views, I am satisfied the children’s best interests are met by the current arrangements – for the children to spend time with the Father for two out of three weekends – continuing, together with orders for a sharing of all holidays, including extended time over the long summer break. Additionally, mid-week time on Thursday shall also occur in the intervening week.
I make that determination taking into account that it means the children have less leisure time in their Mother’s household. However, I note that the parties’ work and living arrangements do not make it possible for extended weekends or mid-week time. Accordingly, to ensure the children have the benefit of both parents participating in their lives in a meaningful way, it is in their best interest that the arrangement for two weekends out of three continue.
Given Y’s views about time with the Father as expressed to Ms J, the Father would be best advised to ensure that he is good to his word and ensure he facilitates the children’s social commitments, and in due course, employment commitments whilst they are in his care. If he does not do so, I envisage there being further conflict and litigation.
The children should also have the benefit of spending extended time with the Father over the long summer holidays. There was no evidence adduced by the Mother that supported that time being reduced to one week only. The extended period will enable the children to enjoy a longer period with their Father over those holidays, giving them the opportunity to participate in a wide range of family experiences.
The parental conflict and history of this matter is such that I am satisfied the Mother’s proposals for the children to choose the time spent arrangements would see their relationship with the Father diminish. For Y and X to successfully make decisions about time with their Father would require that the Mother show the children clear and unequivocal support of that relationship, so that the children understood they were able to freely and easily move between homes, without causing either parent stress, upset or anxiety. In my view, there is little evidence that the Mother is able to provide that quality of support for the children’s relationship with their Father.
In the March 2020 Report, Ms J does not suggest it would be appropriate for the children to determine the time spend arrangements from the age of 14. I note the evidence is that Y has struggled for many years with the conflict and tension between her parents. She is described as being nervous and having some anxieties, and broke into tears when interviewed by Ms J.
In my view the Mother’s proposals would place Y (and in time, X) in a terrible position should time with her Father be left to her to determine. It would be entirely inappropriate for Y to have to effectively choose whether or not, and the conditions around which, she spent time with the Father.
I note the Mother says she is confident Y would continue to attend. I do not share that confidence. I am of the view it is most likely that Y would feel obligated to reject her Father, or at least significantly curtail her relationship with him, in an effort to reduce the stress and discomfort she would feel in trying to pursue a relationship with him without the arrangements for her time with him being mandated by court order.
It is, in my view, important that the Mother continue to deliver the children to the Father on a Friday. He is unable to collect the children from school on a Friday due to work commitments. Moreover, with the Mother taking that role, she is sending the children a clear and unequivocal message that she values the children’s time with the Father and will facilitate that time. For the same reason, the Mother shall deliver the children to the paternal grandmother at the commencement of time every third Thursday. This will also ensure consistency in the changeover arrangements.
In relation to orders about the fraught issue of counselling, there is a need to ensure that:-
a)Y and X have access to appropriate supports if required, with the involvement of both parents, and that those providing the support are fully informed as to the lengthy conflict between the parties and the various observations made by professionals engaged as part of the Court process; and
b)the children are not engaged with a partisan counsellor, or with an eye to shoring up evidence in the event further parenting proceedings are issued.
I understood from closing submissions that the Mother did agree to the children continuing at D Counsellors, when they have attended since 2018. She has previously deposed to having to drive the children to Suburb O for these appointments as onerous.
The Mother advised Dr E that the counselling for the children had led to mental health improvements. There is no real complaint by the Mother as to the quality of that counselling. Those engaged by D Counsellors are expected to understand the range of dynamics that can occur for separated families. It is also important for there to be consistency for the children in who provides that counselling. I anticipate it may be difficult for Y to start again with a new treator, particularly as Y told Ms J that she “really likes” seeing her counsellor at D Counsellors.
Accordingly, my orders will include that counselling can occur at D Counsellors, unless otherwise agreed, with each parent to keep the other informed of any appointments made.
The Mother also says the Father has been resistant to having the children educationally assessed. I remain unclear as to why the Mother seeks an assessment for X in particular, as the school reports appear to demonstrate he is progressing reasonably well. She relied on an Individual Learning Plan for X but I cannot see where, in that plan, there is any recommendation for further assessment.
Cleary, if the children’s schools were to recommend learning assessments be undertaken, the parents should agree to that. However, in circumstances where there is no evidence that any such recommendation has been made and rejected by the Father, I do not intend to make orders in this regard.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of Judge Carter
Associate:
Date: 18 September 2020
Key Legal Topics
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Family Law
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Civil Procedure
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Jurisdiction
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Remedies
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Procedural Fairness
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