Masters and Masters

FAMILY COURT OF AUSTRALIA

MASTERS & MASTERS

[2009] FamCA 353

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child

Family Law Act 1975 (Cth)

APPLICANT:

Mr Masters

RESPONDENT:

Ms Masters

INDEPENDENT CHILDREN’S LAWYER:

Peter Lynch

FILE NUMBER:

MLF

4130

2003

DATE DELIVERED:

1 May 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

15 March 2007, 14 September 2007, 21 December 2007, 17 March 2008, 19 September 2008, 30 -31 March 2009, 1-2 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Ben-Simon

SOLICITOR FOR THE APPLICANT:

Patricia Roberts

COUNSEL FOR THE RESPONDENT:

Ms Elleray

SOLICITOR FOR THE RESPONDENT:

Peter Mann

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'Connell

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Lynch

Orders

That all previous orders in relation to the child … born … March 2001 (“the child”) shall be discharged.
That the mother and the father shall have equal shared parental responsibility for the child’s long term care, welfare and development.
That the child shall live with the mother.
That the question of the time the father shall spend with the child shall be reserved.
That the parents shall continue to attend, and make the child available to attend as requested, upon Ms P(or her nominee) at the Family Relationship Centre for the purpose of participation in and completion of the Parenting Orders Program, and the Independent Children's Lawyer shall ensure that Ms P (or her nominee) shall receive a copy of these orders and reasons for judgment.
That the mother shall keep the father advised at all times of:
(a)Her residential address, landline and mobile telephone number;
(b)Any illness or injury of a serious nature in respect of the child; and
(c)The name of the school at which the child is enrolled to attend.
That the mother shall authorise any school the child attends to:
(a)Provide to the father, at the expense of the father, copies of all school reports, school notices and school photographs; and
(b)Communicate with the father in respect to the child’s progress at school.
That the order for the appointment of the Independent Children's Lawyer dated 3 April 2006 shall be discharged.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all existing applications shall otherwise be dismissed and the case removed from the list of cases awaiting finalisation.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED

It is envisaged that the parents shall give careful and earnest consideration to any recommendations made by the Parenting Orders Program therapist.
IT IS NOTED that publication of this judgment under the pseudonym asters & Masters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4130 of 2003

MR MASTERS

Applicant

And

MS MASTERS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties’ child has just turned 8. She was at the centre of litigation in this court between 2003 and early 2005 when consent orders were made for her to live with her mother and spend two out of three week-ends with her father. In late 2005 she suddenly refused to see her father. He immediately started this case, seeking orders that she live with him and have no contact at all with her mother until the father/daughter relationship was resurrected.
The case has been adjourned numerous times, to allow for counselling, in an effort to re-build the relationship. However the child staunchly continues to resist seeing her father, adamant that she does not want to spend any time with him at all.
Although neither parent points to a specific event that caused the child’s sudden rejection of her father, each blames the other.
The father lays the blame entirely on the mother’s household, saying that she and the maternal grandmother have influenced the child against him.
The mother has always maintained that she is very keen for the child to spend time with and have a good relationship with her father. She denies in any way trying to alienate the child’s affections. She says that the root cause of the child’s resistance is that she is a sensitive child, she has always suffered separation anxiety, and the father has pressed her too hard about coming to live with him, so that she has become fearful that he will take her or keep her from her mother.
The Independent Children's Lawyer refers to contributions by both parents.

BACKGROUND

The father is Mr Masters. He was born in May 1964 and is 44-years-old. He is a driver/manager by occupation. He has been living with Ms F since mid-2006. They have a 20-month-old daughter, H, born in July 2007, and are expecting another baby.
The mother is Ms Masters. She was born in March 1967 and is aged 42. She is engaged in home duties, caring for the subject child, and S, her 2½-year-old son from a subsequent relationship. She is separated from S’s father.
The parents lived together from 1982. They married in May 1992. The child was born in March 2001. They separated in June 2003 and divorced in 2005.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The father relied upon the following documents:
·His application filed 3 June 2006
·His questionnaire (undated)
·His affidavits filed 3 December 2006, 5 March 2008 and 17 February 2009
·The affidavit of his partner Ms F filed 30 March 2009 (she was not required for cross-examination)
·The affidavit of Mr V filed 17 February 2009.
The father obtained Mr V’s affidavit after a single expert, Family Consultant Ms O, had been requested to prepare a Family Report. The method employed by him or his legal representatives in that regard was inappropriate. As I observed to the parties at the start of the case, Mr V did not have the advantage of seeing all the family members. He only consulted with the father. His report accordingly contained enormous limitations. However, given the latitude of the Less Adversarial Trial procedures, I allowed his affidavit as a helpful adjunct to the Family Report.
The consensus was that Mr V should be present in court so that he could hear Ms O’s evidence, and she could hear his, and so that each expert could comment on the other.
The father had wanted to rely on evidence of the mother’s estranged partner, Mr J. He could not get him to court. He then sought to rely on his solicitor’s notes of a conversation she had with Mr J in a hotel. Although the notes were adopted by Mr J on oath before that solicitor, I did not allow them in evidence. The notes were only that, notes, not even written in full sentences. In the circumstances of Mr J being estranged from the mother and refusing to attend for cross-examination, the prejudicial value of such “notes” outweighed any probative value.
The mother relied upon the following documents:
·Her response filed 30 March 2006
·Her questionnaire (undated)
·Her affidavit filed 9 February 2009
·The affidavit of her mother, the maternal grandmother, filed 9 February 2009.
The ICL relied upon the following documents:
·The report of Ms L dated 11 October 2004 attached to her affidavit of 11 July 2006 (no-one sought to cross-examine Ms L)
·The reports of B Children’s Contact Centre of 24 February 2006 and 21 September 2004 attached to the affidavit of Ms N filed 16 February 2009 (no-one sought to cross-examine Ms N)
·The reports of the child’s counsellor Ms S dated 9 February 2006, 6 February 2007 and 11 November 2007, attached to her affidavits filed 17 February 2009 and 27 March 2009 (but Ms S was not required for cross-examination)
·The Family Reports of Family Consultant Ms O dated 7 August 2006, 18 December 2007 and 20 January 2009.
It is important to understand the precise orders being sought and how they were arrived at.
By the end of the case there was consensus that the parents and the child should continue in the Parenting Orders Program in which they recently commenced intensive family therapy with a therapist Ms P. The difference between the parties is that the mother and the ICL now seek orders that leave the re-development of the father’s relationship with the child to Ms P’s recommendations, while the father seeks a court ordered regime super-imposed over the therapy. He wants orders for the child to spend all school holidays with him until the 2010 school year, and alternative week-ends after that.
I note that at all times until final submissions, the father maintained an alternative residence application, and an application that the child initially not see her mother for an extended period.

RELEVANT LEGAL PRINCIPLES

Part VII of the Family Law Act1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act. Section 60B(1) sets out the objects of Part VII, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. In this case the father sought sole responsibility in his application but by the end of the case there seemed to be no dispute about it being shared.
The court is required to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)). At this stage, equal time is not one of the proposals, but whether it is in the child’s best interests to spend substantial and significant time with her father (s 65DAA (2)(c)) must be considered.

THE ISSUES

The major fact that is not in dispute is the child’s resistance to spending any time with her father.
Her view has been consistently stated. It was most recently summarised by Ms O in the 19 January 2009 report (on page 3) as follows:
In interview, [the child] happily and openly discussed various areas of her life with enthusiasm, including her schooling, friends, and her favourite hobby, horse-riding. [The child] was also able to clearly identify the reason for attending on the day, stating ‘it’s to talk about my feelings. I don’t want to live with my Dad and I don’t want to see him. He took me away and I’m scared he’ll do it again.’ In discussion about her more recent experiences of her father, [the child] remained emphatic that ‘I don’t have fun with him and I don’t like him. I don’t want to give him any more chances.’ The strength of her feelings was unswerving, and she was able to identify that her father would most likely ‘feel sad, but I will feel happy’ if her wishes were acceded to. Asked how her mother might feel about this outcome, [the child] stated that ‘Mum will be OK, she just wants me to be happy.’ [The child] was also asked to consider how she felt about [H] and not having regular opportunities to see her to which again [the child] thoughtfully replied ‘I don’t have feelings for [H]. She’s part of his family.’
Ms O suggested to the child that the judge may decide it is best for her to continue to see her father. Ms O reported that:
[The child] became distressed and through her tears asked ‘please, no!’
Ms O observed:
[The child’s] narrative about her experience of her father is strongly and unremittingly underpinned by her feelings of mistrust and dislike of him, and a plea ‘for him to go away and to leave me alone’. These have been the sentiments consistently reflected in [the child’s] wishes, on this and on all previous occasions.
Ms O then described the child’s behaviour towards her father when she brought them together:
During the session, [the father] greeted [the child] and thereafter kept up a monologue which essentially mirrored the activities in which she was engaged. [The child] maintained a stance of ignoring her father’s presence, keeping her back turned towards him, and disregarding any conversation directed at her. [The child] refrained from having any physical contact with her father, including the making of any eye contact with him. Whilst [the child] withstood any engagement with her father, she maintained a connection with the Consultant and was responsive to an invitation to share her views about spending time with her Dad.
Finally, the child informed her father of her primary wish “not [to] see you anymore”, thereafter drawing “two sad faces for her second and third wishes”.
The factual dispute with which the parties have been absorbed relates to the cause of the child’s resistance. That is important, although only insofar as it can assist me with the best way forward for the child.
The father is steadfast in his view that the only reason that the child refuses to relate to him or spend time with him is because of the alienation that she experiences in her mother’s household. The mother’s perspective is that the child is a sensitive child and is frightened by the father’s zeal and repeated messages to her that he will pursue her living with him, so that she fears being removed from her mother.
I am satisfied that the evidence does not completely support either polarised position. I conclude that the mother’s underlying attitude to the role of the father has at least to some extent affected the child’s relationship with him. However, his lack of insight into the chilld’s sensitivity and fears has significantly contributed. So has her innate make-up. I shall consider each aspect in more detail.

The Mother’s Alienation

In some respects, the father’s allegations that in the mother’s household the child is alienated from him seem quite unreasonable. In other respects, his allegations appear to have substance.
His allegations appear unfounded in that the mother has clearly and consistently stated the need for the child to have a good relationship with her father. She has previously agreed to the child spending generous time with him. She has complied with court orders, even when doing so has required considerable logistical fortitude. She has pursued counselling for the child directed towards re-integrating the father into her life, and has endured significant driving, expense, and organisation to ensure its regular occurrence. In recent years, she has even “supervised” the time herself, and thus spent many hours in the father’s company.
Generally, the mother’s presentation to experts and to the court is as a sensible, quietly spoken woman, as a loving mother who wants the child to enjoy the involvement of both her parents, and as a woman who can put aside any feelings of past animosity towards the father to make appropriate concessions in his favour.
There were numerous examples of such concessions, for example that she no longer fears that the father will abduct their daughter, or a ready concession that there were long periods when the child was happy seeing and having fun with him.
There were examples too of her being genuinely helpful to the relationship, most graphically how she has recently cuddled and played with his baby, H, in an effort to cajole the subject child to engage, rather than to continue to ignore her baby half-sister.
The best endorsement of the mother’s positive or helpful attitude is that for substantial periods up to December 2005, the child went happily to the father. She was happy and had fun. As noted, that was readily conceded by her mother, and must to some extent reflect well on her and her influence on her daughter.
However, cross-examination of the mother, particularly by counsel for the ICL, exposed some weaknesses when it came to her attitude towards the father.
By way of background, it is important to understand the mother’s living arrangements. The mother is an only child. Save for a period of 18 months from 1982, when she first lived with the father, she has lived the rest of her 42 years with her parents. For almost 20 years, the mother and the father lived with the maternal grandparents. The mother continues to reside with them. This continues a family pattern. Until they died in relatively recent years, the mother’s own maternal grandparents lived with the family. They are a tight family unit.
The father has caused genuine consternation to that family unit. I shall return to the detail below and the limited insight he shows when it comes to some of his actions. For present purposes, I note what I find was genuine anguish on the part of the mother and maternal grandmother when the father removed the child from their primary care for up to four days at separation. I accept their evidence too as to the distress they experienced when the father involved other family members and locals in the intimacies of the marriage break-down, for example, by showing them adult pornography and other internet material personal to the mother. It has caused painful (and continuing) rifts within the mother’s extended family. In addition, I accept that the father has caused particular consternation by consistent threats that the child will live with him.
The evidence supports the father’s view that in the mother’s household he has been and is still considered in negative terms. It simply did not ring true when both the mother and her mother gave evidence that they had “moved on” from his past conduct. Not only was there obvious passion surrounding the father’s removal of the child at separation, but the level of both women’s anger and distress arising from the father talking against them in their local community (of only about 850 people) was palpable. It caused them to move their residence two hours’ away. In addition, when the maternal grandmother gave evidence about the resultant termination in her relationship with her only brother – a brother with whom she was so close that she had “almost raised” his children – she did so with an obvious depth of feeling about it. She laid the blame squarely at the father’s feet, for showing her brother affidavit material “bad-mouthing” the family.

It is also inevitable that the on-going pressure of the father seeking orders for the child to live with him has coloured the mother and her mother’s attitude to him. At times he has been quite heavy-handed. That was graphically illustrated in December 2005.
After 14 months of happy and settled contact with her father, the child simply refused to see him. On 9 and 16 December, the workers at B Contact Centre, where change-overs had been occurring, terminated contact and refused further change-overs in light of the child’s profound distress. It is unlikely that the mother could have been other than shocked and aggrieved when right on Christmas her solicitor received the following letter written on the father’s instructions:
We are advised by our client that his daughter […] is once again refusing to attend for contact with him. The mother’s intentions and attempts to alienate the affections of the child from the father are quite clear. He has only seen his daughter once in the last nine weeks. On three occasions she has provided a Doctor’s Certificate stating that [the child] is too ill to attend for contact.
This letter is to advise you that we are instructed to make Application to the Court as follows:
1.That [the child] reside with the father.
2.That the mother not have contact with [the child] for a minimum period of six months and thereafter such contact is to be supervised for a further six months.
3.That the mother pay the father’s costs of this Application.
Do you have instructions to accept service of proceedings?
Even now he shows little appreciation that it was a brutal threat, when the last 14 months’ contact had proceeded successfully, thanks to everyone’s efforts, including the mother’s. And it was simply incorrect that he had not seen the child for nine weeks. He had to admit that.
Against that backdrop, I accept the father’s evidence that from time to time the child made comments to him that suggested she had at the very least over-heard talk against him at home. I accept it as probable that for example on a zoo visit, she told her father that “Mummy wouldn’t like you bringing me here” or that on another occasion she parroted something she had heard at home about “Daddy’s breath stinking”, and that she said something to the effect that when she was older she could make up her own mind about seeing him.
I find that the mother is capable of holding a grudge. Certainly, she took a very hard line against the father’s family when early in their relationship she was upset by some of their attitudes to her. She issued the father with an ultimatum to choose her or them. He remained estranged from his family for the many years that ensued until separation.
Despite the mother’s professed understanding of the need to nurture the relationship between father and child, she showed little insight into the impact of her moving the child two hours away from her father in 2004, in terms of his relationship with such a young child.
It was telling that Mr J, the mother’s current estranged partner, is having access to their 2½-year-old son S, but only at her place. She cited logistical reasons as to why he could not take S out, to the effect that he drives a utility that could not seat the child safely, but when pressed as to how long this situation would prevail, it troubled me that she responded “Until [S] is old enough to make up his own mind”. That suggested tepid support for the father’s role, and an over-empowerment of the child. The father has feared as much in this case.
Ms O noted that the child had not displayed characteristics consistent with her maternal family being deliberate in their intentions or exclusively responsible for the source of her antipathy for her father. I agree, but having had the benefit of all the evidence, I conclude that the mother has felt keenly the impact of the father’s actions, and in all probability has not been able to completely shield the child from her feelings and insecurities about him. I do not find that she has deliberately manipulated the child against him.

The Father’s Lack of Insight

The father has no doubt been frustrated by the fact that he previously shared a close relationship with his daughter, that years have now passed without him being able to do so, and that despite extensive efforts to resurrect the relationship, there has been no success. However, he drastically over-simplifies the situation when he says that the child’s attitude is simply a result of her mother’s alienation. I have already set out the complexities in relation to that aspect of the case. The mother’s attitude is but one in a complex range of factors.
The father denies that he has ever given the child any reason to fear that he would remove her from her mother. I reject his evidence in that regard.
First, he under-estimates the impact on the child when, at separation (when she was 2 years’ old), he removed her from the family home for four days. Although the father was an involved and loving father, it seems that the mother was the child’s primary attachment figure. The child was also very close to her maternal grandmother with whom they lived and who was integrally involved in her care. I am satisfied that the removal, albeit for a short period, was likely to have been felt by the child directly, and certainly indirectly, given her mother's and maternal grandmother’s anxiety about it. That anxiety was compounded by an immediate application by the father for residence, which in fact had been sworn several months earlier, and must have been a shock to the mother.
The father’s desire for the child to live with him has been consistent throughout the years. That in itself is not a cause for criticism. He loves his daughter and has wanted to spend as much time as possible with her. However, he has shown no insight into the impact on her and/or her mother and family of on-going residence applications that have left a cloud of uncertainty and insecurity over the child’s living arrangements.
That has been played out most dramatically in the course of this current round of proceedings. Since 3 February 2006, his application has sought sole responsibility for the child’s day-to-day and long-term care, and orders that she reside with him, and that the mother have no contact with her “for such period of time as shall be necessary to re-establish the child’s relationship with the father”, and thereafter “as mutually agreed”.
The father has been consistently alerted by the relevant experts to the child’s anxiety at the prospect of being removed from her mother, and advised that in order to re-develop his relationship with his daughter, it would be wise to put aside the residence application. As noted above, the child consistently emphasised in her own counselling, and to the Family Report writer, that she had an enduring fear that her father was “going to take me away”.
In her first report on 7 August 2006, Ms O concluded:
The immediate removal of [the child’s] living arrangements as an issue of contention would most likely enhance the mother’s capacity to reassure [the child] and to fully reinforce the benefits of resuming her relationship with her father without the apprehension that she will not be returned home.
In her report of 19 January 2009 Ms O noted that:
…[the father’s] pursuit of having [the child] live with him therefore impresses as unrealistic given that [the child] cannot tolerate being near, let alone living with, her father.
Shortly before this last part of the hearing, “proposed orders” were filed on behalf of the father. He sought an order that the child live with him for all school holidays this year and over the summer, and then from 2010 on alternate week-ends, but that she live with her mother at all other times. That suggested a break-through in his appreciation that a residence application was not sustainable in the circumstances. However, at the start of the case, his counsel advised that he still sought an “alternative” order that the child move to live with him, to take her out of her “toxic environment”, so that she could re-establish a relationship with him. He seemed to propose a substantial period when the child would not see her mother.
There is no doubt that the litigation has been financially and emotionally exhausting for both of the parents. But for the mother, she has also had to endure an emotional rollercoaster in which she has felt her parenting undermined and the child’s security threatened. That must have impacted on her and on the child.
The father’s myopic approach on the topic persuades me that he would have found it impossible not to relay the message to the child as to how keenly he has sought her residence. I reach that view too based on Ms O’s evidence of how he relates to the child, and the child’s perceptions that her father “overpowers” her physically and emotionally. He is no doubt motivated by his frustrated desire to be close to her, but he is failing to empathise with her experience or perception of him.
A graphic example of the father’s pushiness and insensitivity is to be seen in the 21 December 2005 letter written by his solicitors, on his instructions, already referred to above.
Like the mother, the father is not operating in a vacuum. Just as his conduct has influenced her responses, the same is true in reverse. I suspect that what he has perceived as “obstacles” to his full involvement as a parent to the child, caused by the mother, has prompted him in the zeal he has displayed to the child, that in turn has overwhelmed her.
The mother’s family’s move away from the local area in 2004 must have been keenly felt by him. Until then, the parents were raising their little girl in close proximity in their small community. And although I sympathise with the mother that it was inappropriate for the father to stand staring at the child over the fence when the child had only one three-hour session at 3-year-old kindergarten, I also sympathise with the father for feeling he was being kept at arm’s length from the child’s daily life and education.

The Child’s Innate Make-up

There is ample evidence that the child has a particularly sensitive or delicate make-up. She was diagnosed with separation anxiety as far back as 2003. Although I suspect the mother mostly believes it was due to what she described as the father’s “abduction” of the child at separation, in fairness to the mother, when she sought help for the child initially, she did not suggest that the child was unable to separate to go to her father, but more that she was struggling in other settings.
In any event it was the appreciation of the help that the child needed that prompted both parents to agree to adjournments in the course of these proceedings, for the child to have her own counselling with Ms S. That counselling appears to have been successful in that the child is going very well in most aspects of her life now. However, it did not succeed when it came to the important issue of her relationship with her father.
Although early in this case I identified the child’s innate make-up as one of the factors contributing to her resistance to seeing her father, the evidence satisfies me that I must also consider what else has been happening in the child’s life.
In the course of the cross-examination of the maternal grandmother, it emerged that the mother’s relationship with Mr J, which ended in mid-2007, was a difficult one. In shortest summary, as an interstate truck driver he was often away. When at home, it seems that there were times when he drank to excess, or was bad-tempered, and on several occasions he was violent to the mother. Shortly before separation, he struck her to the face, leaving her bruised. The maternal grandmother was insistent that the children were asleep at the time, that they did not know of the incident, and that the mother successfully concealed bruising to her face with make-up and by wearing her hair down.
Counsel for the father suggested that the mother deliberately concealed Mr J’s behaviour, and that I should find her dishonest and unreliable. I disagree. It is not surprising that Mr J’s behaviour had not emerged in evidence until referred to by the maternal grandmother. From the mother’s perspective she had protected the child from his behaviour and – sensibly – she had terminated the relationship. I cannot find she was being deliberately dishonest. It is likely though that she has not fully contemplated the potential impact on the child, even though the child was spared direct exposure to conflict or violence. This is just the sort of topic that can and should properly be dealt with in the confidential setting of therapeutic family counselling. That way, the impact on the child, if any, can be assessed and addressed.

CONCLUSION

As noted above, I am bound to consider the mattes set out in s 60CC(2) and (3) of the Family Law Act.
The first of the primary considerations is the benefit to the child in having a meaningful relationship with both her parents. Both parents say it is important. I agree, provided that it can be achieved without a degree of damage that would be beyond her best interests. In the same vein, when it comes to the other primary consideration, being the need to protect the child from various harms, I must not put in place orders that are likely to expose the child to an unacceptable risk in her development.
As to the additional considerations set out in s 60CC(3) of the Act, of course I take into account the child’s views. They have been central to this case. But they are not definitive. She is only 8. Despite her strongly held views to the contrary, I am satisfied that at this stage a relationship with her father should still be pursued. I am persuaded however that it is premature to force her to spend time with her father. I shall return to that. Otherwise, I agree with her parents that she and they need to undergo the advanced family therapy offered by the Parenting Orders Program that they have now commenced.
As to the nature of the relationship of the child with each parent, it is apparent that she has a very close and loving relationship with her mother. It is apparent that at times in the past she has shared a close and loving relationship with her father, and it is hoped that it is the base upon which her relationship with him can be rebuilt. I cannot overlook that she also has a very close relationship with her maternal grandmother with whom she has always lived, and who has participated fully in her upbringing. She is obviously attached to her little half-brother S. Sadly at this stage she does not have an attachment to her half-sister H, her father’s infant daughter. That relationship is also one that needs to be explored in family therapy.
The consideration as to the willingness and ability of each of the child’s parents to facilitate a close and continuing relationship with the other parent is a consideration at the heart of the case. It is the very essence of what each parent must work upon in the course of therapeutic counselling. For the reasons set out above, I conclude that each still has a way to travel to a genuine appreciation of the importance of the other.
The consideration of the likely effect of any changes in the child’s circumstances is an important one, given that the child has shown herself as averse to change. I am satisfied that none of the expert evidence supports the father’s proposal that the child should simply be forced to spend extended periods with him. Even his own expert, Mr V, was opposed to that, as was the Family Consultant.
When it comes to the practical difficulty and expense of the child spending time with a parent, the two-hour distance between the parents has not been insurmountable. Both parents have shown their willingness to participate in the logistics of contact. They have been exemplary in that way.
As to the capacity of each of the child’s parents to provide for her needs, I am satisfied that in many respects each has great capacity. The mother’s capacity is proven. The child is thriving in other parts of her life and is obviously an engaging child who is now well settled at school. However, I have expressed my concerns about the mother’s capacity to truly provide for the child’s needs when it comes to her relationship with her father. I have also expressed significant misgivings about the father, and his lack of sensitivity and insight into the child’s needs not to feel overwhelmed by him, or threatened that her living arrangements with her mother are insecure.
The other considerations are either not relevant or have already been dealt with under one of the other headings, save for the consideration in s 60CC(3)(l) as to the order that would be least likely to lead to the institution of further proceedings. That brings me to what was ultimately the major decision for me. Although by the end of the case the parties agreed that the parents and the child needed to continue in and conclude the therapy with Ms P in the Parenting Orders Program, they still diverged as to how the orders around that should be structured.
I can understand the father’s desire to leave this court with precise orders setting out the time that he shall spend with the child. For him, such orders would give him a concrete conclusion to his protracted and sustained endeavours to have a relationship with his daughter. I understand his perception that they would also give the child the firm message that it is what must occur. In the light of the expert evidence however, I cannot make the orders he seeks.
I was greatly assisted by the expertise of the Family Consultant Ms O, whose evidence was endorsed by Mr V when he spoke about the difficulties involved in resurrecting a relationship with a child as resistant as this child. Like Ms O, Mr V fully supported the Parenting Orders Program as the only viable option at this point. I accept both experts’ firm evidence that it is not in the child’s best interests for me to simply guess at a regime, its timing and structure, when the therapeutic counselling may evolve in such a way that my orders would be too fast or too slow, or structured in a way that will not meet the child’s particular needs, or simply just premature or wrong. The therapist will be best placed to determine how the child is coping, and if and how her relationship with her father will be progressed.
I agree with Mr V that in the circumstances of such a difficult case it would be ideal if the family therapist could, with the sanction of the court, direct the parties down a particular path. However, I accept that the Parenting Orders Program protocols or guidelines do not permit the counsellor to be directive in that way. I also accept that the alternative of a private therapist who might work on such a directive model is not a viable option for the parties. The expense would be prohibitive.
I note that the Parenting Orders Program does permit the therapist, working with the family, to make strong recommendations. The parties would be wise to give any such recommendations their most careful and earnest consideration.
All parties agree that my orders should be final. No-one wants further interim orders that would bind them to a return to court. Although either parent may return to the court if, even with the guidance and the assistance of Ms P engaging the family together, they cannot arrive at a way forward upon which they agree, more litigation is unlikely to promote the child’s best interests. As I have said, the parents would be wise to give the strongest consideration to Ms P’s recommendations.
The Parenting Orders Program is confidential. The upside of that is that the family can genuinely discuss matters of concern without any fear that they will be disadvantaged in the event of future litigation. The downside is that if they do not mutually arrive at a decision (whether it is for the child to spend substantial time with her father, none at all, or some other conclusion) the court cannot receive any report. I am satisfied that given the complexities of what has gone on for this family, all in the shadow of litigation, this family therapy is really their last best shot, the only “different” approach that has been tried in many years, and that confidentiality is germane to its possible success.

I am satisfied that the current order for two hours supervised time every fortnight should be discharged. Again I understand the father’s desire to keep it going to ensure a “base-level” of contact. However, the evidence was clear that it is not promoting the child’s best interests. There is every suggestion that it is counter to them. The father is the first to say that it has achieved nothing towards his daughter responding properly to him or showing any interest at all in her little half-sister. Mr V, like Ms O, was clear that “more of the same” is not best for the child and the re-building of this relationship. In any event, such orders would, as I have noted above, be an unrealistic guess on my part and contrary to the acknowledgement that the only way to try to unlock the child’s resistance is with the help of, and as suggested by the therapist working with all family members.
There was a consensus that my orders, and the genuine hope that the child will be able to work towards enjoying a fulsome relationship with her father, should be conveyed to her. It seems there is also a consensus that Ms P is the appropriate person to convey that, because she can do so in the context of the work she is undertaking with the child and her family. To this end, I propose ordering that a copy of my orders be forwarded by the ICL to Ms P.

THE ORDERS

The orders I propose, subject to any submissions as to form, are as follows:
1.That all previous orders in relation to the child … born … March 2001 (“the child”) shall be discharged.
2.That the mother and the father shall have equal shared parental responsibility for the child’s long term care, welfare and development.
3.That the child shall live with the mother.
4.That the question of the time the father shall spend with the child shall be reserved.
5.That the parents shall continue to attend, and make the child available to attend as requested, upon Ms P(or her nominee) at the Family Relationship Centre for the purpose of participation in and completion of the Parenting Orders Program, and the Independent Children's Lawyer shall ensure that Ms P (or her nominee) shall receive a copy of these orders and reasons for judgment.
6.That the mother shall keep the father advised at all times of:
a.Her residential address, landline and mobile telephone number;
b.Any illness or injury of a serious nature in respect of the child; and
c.The name of the school at which the child is enrolled to attend.
7.That the mother shall authorise any school the child attends to:
a.Provide to the father, at the expense of the father, copies of all school reports, school notices and school photographs; and
b.Communicate with the father in respect to the child’s progress at school.
8.That the order for the appointment of the Independent Children's Lawyer dated 3 April 2006 shall be discharged.
9.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
10.That all existing applications shall otherwise be dismissed and the case removed from the list of cases awaiting finalisation.
11.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

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

Associate:

Date: 1 May 2009

[2009] FamCA 353

1 May 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Costs