MCBERRY & COATES - [2011] FMCAfam 756

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCBERRY & COATES

[2011] FMCAfam 756

FAMILY LAW – Parenting – spending time arrangements where parent/child relationship broken down.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

Applicant:

MS MCBERRY

Respondent:

MR COATES

File Number:

BRC 8691 of 2009

Judgment of:

Lapthorn FM

Hearing dates:

25 March 2011 & 31 May 2011

Date of Last Submission:

31 May 2011

Delivered at:

Brisbane

Delivered on:

29 July 2011

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

In person

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Andrews

Solicitors for the Independent Children’s Lawyer:

Harrington Family Lawyers

ORDERS

That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the children [X] born [in] 1997 and [Y] born [in] 2000 provided the mother:
(a)Give the father at least one month’s notice in writing of any proposed decision about any major long term issue;
(b)Seek the father’s written response in relation thereto;
(c)Consider by reference to the best interests of the children any such response received from the father prior to making any decision and;
(d)Notify the father in writing of the decision she has made.
That the children live with the mother;
That the children spend time with the father at all such times as may be agreed between the parents and in default of such agreement:-
(a)For supervised time up to 2 hours at the Relationships Australia, Children Contact Service at such times and places as are allowed by the Relationships Australia, Children Contact Service but not more than once per school term and once in the Christmas school vacation period;
(b)the Relationships Australia, Children Contact Service is requested to consider retaining the services of their re-unification worker in supporting the children to spend time with their father;
(c)The mother and father shall forthwith within 7 days of the date of the order register with the Relationships Australia, Children Contact Service;
(d)The parties comply with all the intake procedures, complete all documents as may be required by the Relationships Australia, Children Contact Service and attend all intake interviews as required;
(e)The father’s time with the children be in accordance with the rules, regulations and availability of the Relationships Australia, Children Contact Service and the Centre provide the supervised time only if, after 18 months, it still considers it in the best interests of the children to do so;
(f)That the Independent Children’s Lawyer provide a copy of the report of Mr F to the Children Contact Service.
That each parent keep the other informed of their current residential address and telephone number and advise them of any change in relation to same 14 days before such change.
That the mother must not change the school at which the children are currently attending unless Order 2 hereof has been complied with.
That this order be sufficient authority:-
(a)In the case of the schools to provide to each party copies of the children’s school reports, newsletters and any other information that the schools provide to parents for all children attending schools;
(b)In the case of clubs and association in with the children attend, to provide each person at their expense copies of any records or other information relating to the children or the events at which parents are welcome to attend; and
(c)In the case of health care professionals, to provide to the parties any information relating to any emergencies in which the children have been involved, but otherwise not to release personal medical information for the child without the child’s explicit consent.
That each parent is restrained from denigrating the other parent or a member of their family, to, or in the presence of, or the hearing of, the children, and must ensure that no other person does so and in the event of some other person doing so then that parent must immediately remove the children from the vicinity of the person doing so.

IT IS NOTED that publication of this judgment under the pseudonym McBerry & Coates is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 8691 of 2009

MS MCBERRY

Applicant

And

MR COATES

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of [X] and [Y] cannot agree about their future parenting arrangements. Ever since the parties separated in 2001 they have had much difficulty in reaching agreement and have needed the assistance of the Courts on a number of occasions.
The main issue in this case is whether, and if so, in what form the children should see their father as their relationship with him has broken down. Apart from interviews in November 2010 for the preparation of a family report the children have not seen their father since early 2009.
The father also complained that the mother had moved the children’s residences and schools on numerous occasions.
The mother filed an application in March 2010 seeking to have all previous parenting orders discharged and that the children live with her and for her to have sole parental responsibility for them. She sought an order providing for the children not to spend time with or communicate with their father. By the conclusion of the hearing she was open to the children receiving letters and photos from their father as well as being able to communicate with him in accordance with their wishes. She was also open to them seeing their father again in the future if they expressed a wish to do so.
The father filed his response in May 2010. He sought a dismissal of the mother’s application. At trial he sought orders for the children to live with their mother and spend time with him on alternate weekends and special occasions. In his proposed orders[1] there was provision for liberal telephone communication between him and the children, restraint on the mother changing the children’s school and restrictions on the mother relocating the children’s residence. There were a number of other proposed orders relating to the father’s attendance at the children’s schools, the mother contacting members of the father’s family and restraint on the mother bringing the children into contact with a person by the name of Mr N.
[1] As set out in his affidavit filed 10 March 2011
The children were represented in these proceedings. The orders sought by the Independent Children’s Lawyer (ICL) provided for the children to live with the mother and for her to have sole parental responsibility for them. The ICL proposed that the children spend supervised time with the father at the Children Contact Service for periods of 2 hours once per school term and once during the end of year school holidays and that the court request the assistance of a re-unification worker from the Children Contact Service.

The Evidence

In support of her application filed 9 March 2010 the Mother relied upon her affidavits filed:
a)9 March 2010; and
b)24 February 2011.
The Mother also tendered two documents being: a letter from the Mother to the Independent Children’s Lawyer dated 23 March 2011[2] and a document entitled “Affidavit of Ms McBerry – 30^th May 2011”.[3]
[2] Exhibit M1
[3] Exhibit M2
In support of his case the Father relied upon his response filed 11 May 2010 and his affidavits filed:
a)11 May 2010;
b)10 March 2011;
c)30 March 2011; and
d)1 April 2011.
He also tendered a copy of a page from the communications book used by the parties dated 25 August 2008.[4]
[4] Exhibit F1
The Independent Children’s Lawyer relied upon the affidavits of:
a)Mr F, social worker filed 9 December 2010; and
b)Dr G, psychiatrist filed 17 December 2010.
A report had been prepared by Mr P, social worker in January 2010 but was not relied upon by the parties given the report of Mr F was more recent. Accordingly I have not had regard to the report of Mr P in making my determination.
I have also not placed any weight on various reports annexed to the affidavits of the parties given these reports were historical in nature and untested.
Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father is 49 years of age and lives at [Suburb omitted]. He described himself as an unemployed [occupation omitted].
The mother is 47 years of age and lives in the [omitted] area.
The father has a child from a previous relationship named Ms V.
The parties commenced to live together in 1995, married the following year, separated on 10 November 2001 and were divorced in November 2003. Neither have re-partnered.
[X] was born [in] 1997 and [Y] was born [in] 2000. When the parties separated the children lived primarily with their mother.
[X] currently attends [School omitted] and [Y] is enrolled at [School omitted]. [X] has changed schools on 5 occasions and [Y] twice. This has caused the father concern and along with their frequent changes of address since the parties separated forms part of the father’s criticism of the mother. The mother conceded that she had changed the children’s enrollments in the past in ways that were not always child focused but after receiving advice form the family report writer and reflecting upon the need for stability in the children’s education has no intention of changing their schooling again except for when [Y] moves to High School. I accept her evidence.
The mother’s evidence is that she has also lived at a number of different rental premises although some of them have involved different units in the same complex.
The parties have needed the assistance of the courts on numerous occasions since their separation. This application for final parenting orders appears to be the third or fourth such application but there have also been numerous contravention applications. The orders sought to be varied by the mother in this application were made by Jordan J. of the Family Court of Australia on 11 December 2007. These orders provided for the children to live primarily with the mother and to spend time with the father on alternate weekends from Friday to Sunday and also on Wednesdays as well as block periods during the school holidays. The parties were to equally share their parental responsibility although specific orders were made requiring the mother to give the father notice of any decision she intended to make and allowing him the opportunity to respond.
The parties have also had proceedings in the state courts in relation to domestic violence applications.
The mother has not provided the children to spend time with the father since January 2009. In September of that year the father filed a contravention application which was dismissed by FM Slack on 21 December 2009. On 11 March 2010 FM Slack made an interim order suspending the previous orders of Jordan J. in so far as they related to the children spending time with the father.
The mother said that the reason she has withheld the children is because they had become increasingly uncomfortable about seeing their father. For some time they had indicated a reluctance to see him and eventually expressed a positive refusal to visit him. According to the mother the children had become embarrassed by the father’s behaviour. Some of this behaviour has included: placing signs on his motor vehicle and at his house about paedophilia; handing out pamphlets at shopping centres in relation to paedophilia; abusing people and whistling at them in public; claiming to being followed and bugged and not letting the children have their friends over to visit. Although much of this was historic and had been addressed in previous court orders the children had formed a view that their father was different to their friends’ fathers.
At the request of the ICL the parties saw Dr G in November 2010 for a psychiatric evaluation. Although the father attended Dr G’s rooms he did not stay long enough to be interviewed and assessed. The father indicated to Dr G that he had been told his legal aid funding would be withdrawn if he did not see him and that since he had ‘seen’ him he would leave. The mother on the other hand was interviewed and assessed. Dr G formed the view that the mother did not suffer from any psychiatric illness and doubted she had any personality disorder. In relation to the father the psychiatrist was unable to offer any psychiatric opinion because of the father’s lack of co-operation in the process. He did however proffer the view that if the mother’s account of the father’s behaviour was accurate there would be serious mental health concerns for the father but quite appropriately declined to make any formal assessment based on the history given by the mother and the documentation alone.
There was no order of the court requiring the father to attend upon a psychiatrist for assessment however it is regrettable he did not follow through with the request for the evaluation. Given the mother’s allegations that the children were discomforted in seeing their father an assessment may have assisted the court and indeed the mother to consider different options for the children to re-establish a relationship with him.
The father did however attend upon Mr F for the preparation for the family report. Mr F interviewed both parties and the children and also observed the children with the father. He recommended that the children spend time with their father on one occasion each school term supervised at a contact centre. The submissions of the ICL relied heavily on his report and recommendations. I will refer to the observations of and assessment by Mr F when I consider a number of the s.60CC provisions.
I find that the relationship between the children and their father has broken down primarily as a result of their perceptions of him. Whilst the father blames the mother for this I am not persuaded she has deliberately undermined the relationships although her discussions with them about him having a mental illness would not have help.

Legal Principles

All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[5] and must consider the best interests of the child as the paramount consideration.[6]
[5] S 60B
[6] S 60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[7] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[7] S 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[8] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[9] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[10]
[8] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[9] S 61DA
[10] S61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[11] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[12] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[13] A major long-term issue in relation to a child means an issue:
[11] S61B
[12] S61C
[13] S65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[14]
[14] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s 65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[15] If the court finds that equal time is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[16]
[15] S65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[16] S65DAA(2)(c) & (d)

Presumption of Equal Shared Parental Responsibility

This is not a case where family violence or child abuse has any currency. I am therefore satisfied that the presumption has not been rebutted. I am however satisfied that the parties are not able to communicate sufficiently to effectively engage in decision making processes. For that reason I have concluded that it would not be in the children’s best interests for the parties to share parental responsibility and accordingly the mother, with whom the children live, should have sole parental responsibility.
The issue of parental responsibility is important and to make an order for sole parental responsibility should only be considered when there is no alternative. To exclude a parent from the decision making process in relation to a child’s long term care welfare and development is to deprive a child of input from that parent. There are occasions however when that is necessary. To effectively make co-parenting decisions the parents must be able to communicate in a respectful and effective manner and be able to work through their differences to reach a child focused decision. To do this parents usually need to share a level of trust and respect or at the vey least have the ability to be objective about the other parent and the child’s needs. I am not satisfied that this is the case here.
Having said that however I am of the view that the father should not be excluded entirely from the process of making decisions about the children’s long term needs. The ICL proposed in her minute of order that the mother advise the father of an intention to make a decision and invite a response from him. Whilst not equivalent to sharing parental responsibility such a proposal would enable the father to make a contribution to the important decisions in the children’s lives. For these reasons I will make orders of a similar nature to that sought by the ICL.

Consideration of Equal Time or Substantial and Significant Time

Neither party sought an order for the children to live with them in an equal time arrangement. Having found that an order for sole parental responsibility would be in the best interests for the children I am not required to consider the provisions of s.65DAA.

The primary considerations: s 60CC(2)

The benefit to the child of having a meaningful relationship with both of the child’s parents.

The children have a close and loving relationship with their mother and neither proposal seeks to disrupt that. Regrettably the same can not be said for their relationship with the father. He clearly wishes to be involved in their lives but their relationships are currently fractured.
The consequence of this breakdown in their relationships is that the children do not have the means to acquire any independent information about their father or interact with him face to face. Given the level of anxiety experienced by the children when observed by Mr F with the father, especially for [Y], any re-connection with him would need to be done in a supportive environment as suggested by the report writer and the ICL. Not taking this conservative course would risk burdening the children with their anxiety potentially leading to a complete breakdown in their relationships.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

I am satisfied this is not a case warranting a consideration of this issue.

The additional considerations: s 60CC (3)

Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views.

[X] is 14 years of age and [Y] is 10. Both children told the report writer that they did not want to see their father. Given their ages I propose to place significant weight on their views but in doing so I propose to consider how the views were formed and consider them along with the other relevant legislative considerations.
During her interview with the report writer [X] started crying when she was told that she would see her father that day. She said she did not need a father. [Y] was also very negative about their father. It is clear both children have memories of their father’s behaviours in public that have caused them to be embarrassed. They also felt he was overprotective and at times angry with them.
They both held the view that he was not normal or like other fathers. This view has no doubt developed as a result of their observations of their father but also as a result of their mother’s discussion with them wherein she told them their father had a mental illness.
These views were strongly held and on their own would lead the court to consider not making any order for the children to see their father.

The nature of the relationship of the child with each of the child’s parents.

The children’s primary attachment is to their mother and it is with her that they gain their sense of security. Given their relationship with their father has broken down it is to be expected that their relationship with their mother is very close.
The same can not be said for their father. During the observation of the children with their father the report writer observed [X] to look sad and distressed and at times teary. [Y] was reported to be very distressed. Indeed her distress was so profound the report writer offered for her to return to her mother. She took up the offer and went out to her mother and cuddled into her mother’s lap.
When [Y] left, [X] appeared to open up more to her father, making eye contact at times and even smiled on a couple of occasions. Father and daughter then engaged in conversations some of which was initiated by [X]. This observation lead the report writer to conclude that [X] had some emotional connection with her father.
The report writer concluded that the father demonstrated a capacity for emotional sensitivity responding appropriately to [X] and understanding [Y]’s need to return to her mother.
I am satisfied that there is potential for the relationships between the children and their father to be repaired but for that to happen any time spent would need to be in a supported environment where their level of distress can be monitored and supported. The level of distress however is such that any re-introduction would need to be done slowly so as to not overburden the children. Whilst this is the case for both children it is particularly so for [Y].

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

The father was critical of the mother in this regard. The long history of litigation between the parents has no doubt affected their ability to trust each other. It is not surprising therefore that the father blames the mother for the current situation whereby the children do not want to see their father.
I am not satisfied there is any evidence to establish the mother has deliberately set out to thwart the father/daughter relationships but I am satisfied she could have done more to promote them. Her discussion with the children about the father having a mental illness would not have been helpful although I accept her evidence it was not done with any malevolent intent and in hindsight she would not have that conversation today.

The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living.

Given the breakdown in the children’s relationships with their father any move to restoring time spent to unsupervised weekends and block periods would be fraught with difficulties and may be potentially damaging for the children emotionally. The proposal put by the ICL would go some way towards ensuring the children have a relationship with the father but be protective of their emotional needs by having the oversight of the re-unification worker at the contact centre.
Whilst this arrangement would be less than ideal from the father’s perspective there is potential for the children’s relationships with their father to repair overtime. This may then lead to a change in arrangements that would be more suitable for the children and the father.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

Although there may be some expenses associated with the children’s attendance at the proposed contact centre the need for such an arrangement outweighs this impost on the parties.

The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs

I am satisfied the mother has the capacity to meet the children’s needs.
There is no evidence to suggest the father would not be able to feed, clothe and provide appropriate accommodation for the children. However he has previously engaged in activities the children have found embarrassing. His continuance of these activities over time leads me to conclude he was not always attuned to their emotional needs. He appears now however to have accepted that some of this behaviour would not have been appreciated by the children. Regretably this realisation has come about after the children’s relationships with him have broken down.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents; and the extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent.

Both parents love and care very deeply about their children. Both want what is best for them. There have been times however when they have not always focused on the needs of the children when they have made decisions affecting the children.
The mother, for example, has previously abrogated her responsibility in making decisions in relation to which school the children should attend to the children themselves. She appears to have had a change of heart in that regard and no longer intends to allow the children to control that issue. The father’s passion for seeing changes to the laws in relation to child sex offenders has seen him focus more on this pursuit rather than attending to his daughters’ needs to be feel comfortable in his presence and particularly in public.

Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person

This issue is not applicable to the current litigation.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The structured approach proposed by the ICL, if implemented, is least likely to lead to further proceedings because the re-unification worker at the contact centre would be of assistance to the children and the parents. Without that structured proposal there is every likelihood of any return to the children spending time with the father breaking down and potentially severing their relationships for good.

Discussion

The children have expressed very clearly that they do not want to spend any time with their father. I accept their views and have given them significant weight particularly because they are of an age when it is appropriate to give weight to their views but also I am satisfied that the past behaviour of the father would have influenced the development of those views.
I have however come to the view that there is still some prospect of repairing the relationships and that it would be in the children’s long term interests to attempt to do so. Given the level of distress they have experienced however I am of the view that the structured programme with the assistance of a re-unification worker proposed by the ICL is the best way of balancing the benefit to them of having a relationship with their father with handling any issues they may encounter in re-engaging with him.
The ICL also sought an order requiring the mother to keep the father informed of any activities the children attend from time to time including notifying him of an school events parents are normally invited to attend. The purpose of that order was to include the father in the children’s lives. The mother opposed such an order. I am of the view that whilst such an order would be desirable in the future it would not be appropriate to make such an order at this stage given their level of distress at seeing their father. Until they have been able to re-connect with him through the services of the contact centre and overcome the level of distrust they have of their father it would be best that he not attend any school events. Hopefully their relationships will improve over time such that the children would like to have their father attend events important to them.
There was insufficient evidence to making any findings in relation to the orders sought by the father restraining the mother contacting members of his family and bringing the children into contact with Mr N and therefore I have not made any orders in that regard.
For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Date: 29 July 2011