Merrix and Sloane (No. 2)

[2007] FamCA 1244

FAMILY COURT OF AUSTRALIA

MERRIX & SLOANE (NO. 2) [2007] FamCA 1244

FAMILY LAW – CHILDREN – Application by husband to spend time with two children of mature years whose expressed wish was not to see their father – Parties engaged for many years in bitter litigation – Issues resolved and consent orders made

Family Law Act 1975 (Cth)

APPLICANT: Ms Merrix

RESPONDENT: Mr Sloane

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 9584 of 2000

DATE DELIVERED: 9 October 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 9 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hammet

SOLICITOR FOR THE APPLICANT: Gillian Coote Family Law

COUNSEL FOR THE RESPONDENT: Mr Mawson

SOLICITOR FOR THE RESPONDENT: DKP International Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hoult

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Donald S Lampe

Orders

1. That the wife be at liberty to remove the children, a daughter C born … June 1995 and a son T, born … August 1997 from Australia for the purposes of travel to Vietnam between 25 October and 4 November 2007.

2. That the wife, within forty-eight hours, provide the Independent Children's Lawyer with details of the itinerary for the children's travel and provide the return flight details.

3. That upon the wife and children returning to Australia the children's passports to be retained by the wife's solicitor, Gillian Coote and not released to the wife without giving 28 days notice in writing to the husband of her intention to release the passports.

4. That Order 2 of the Orders of Federal Magistrate Hughes of the 17 August 2006 be discharged.

5. That the wife shall arrange for the children to attend upon Mr P in the month of October 2008, and the husband and wife be at liberty to make subsequent appointments each in order to further explore the children's relationship with the father.

6. That the children,

   C            … June 1995

   T             … August 1997

   communicate with the father as follows:

   (a)By telephone at any reasonable time at the instigation of the children and in addition the wife shall encourage the children or either of them to telephone their father on the last Thursday of each month;

   (b)by the husband forwarding cards, letters and gifts no more than once a month and at Christmas and on each of the children's birthday.   

7. That the wife do all acts and things and sign all documents to enable the husband to receive copies of all school reports and medical reports and school photographs, at the husband's expense.

8. That the wife do all acts and things necessary to enable the husband to make enquiries of each child's school as to their academic progress.

9. That all orders for reserved costs be discharged and that there be no other order as to costs.

10. That the extempore judgment delivered this day be transcribed, placed on the Court file and made available to the parties.

11. Certify for Counsel.

12. That all extant applications be otherwise dismissed and that the proceedings be removed from the Active Pending Cases List.

13. That the order for the appointment of the Independent Children's Lawyer be discharged.  

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 9584 of 2000

MS MERRIX

Applicant

And

MR SLOANE

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The proceedings before me arise from a Form 1 Application brought by the husband and filed on 21 January 2006.  It was amended on 5 September 2007.  The wife filed a Form 1A Response on 27 March 2006.  The issue primarily concerns the time the husband is to spend with the two children of their union, namely C who was born in June 1995 and T who was born in August 1997.  There were subsidiary issues concerning passport and holiday arrangements which otherwise were agreed between the parties.  They have been engrossed into Minutes of Consent Orders marked Exhibit “A” which will remain on the court file.

2. The litigation history of the parties has been hallmarked by its chronicity when one considers the Intervention Orders made at the Melbourne Magistrates Court commencing 14 June 2000 through to 12 June 2007, and the procedural history since 1999, since which time, as I have counted, there have been 17 orders of various dimension made by the court which does not include the seven Intervention Orders made in the Magistrates Court.

3. A brief background is as follows.  The husband was born in September 1958 and is 48 years of age.  He is a Medical specialist.  The wife was born in April 1962 and is 45 years of age.  She is also a Medical specialist. They first met in 1986, commenced a relationship in July 1987 and commenced cohabitation in 1989 when both were resident medical officers.  The parties married and subsequently the child C was born, as I said, in 1995 and the child T in 1997.  Following a situation of grave disharmony between them they separated in November 1999. 

4. The last operative order prescribing the husband's contact with the two children is that of Hughes FM made on 17 August 2006.  In summary, his Honour ordered that all previous orders in relation to contact be discharged.  He also ordered, that until further order, the children communicate with the husband by telephone at any reasonable time at the instigation of the children and through an exchange of letters and cards.  In relation to the exchange of written communication, there were restrictions laid down by the terms of his Honour’s order.  The proceedings were otherwise transferred to the Family Court of Australia. 

5. The depth of the rather vitriolic disputation between the parties may also be seen through the four family reports of Mr P dated 9 July 2001, 5 May 2004, 4 July 2006 and 12 July 2007.  In a nutshell, the child T wishes to have nothing to do with his father and remains rigid in his view.  So too with the child C, albeit that the reports of Mr P indicate some ambivalence on her part. 

6. It will be helpful if I survey briefly some of the aspects of the last two reports.  Dealing firstly with the report of 4 July 2006, it is plain to me that Mr P had the advantage of reading a considerable volume of affidavit material filed by and/or on behalf of each of the parties.  When dealing firstly with the wife, it was reported by Mr P that she described the husband as “personally and professionally intimidating”, referring to his unrelenting telephone contact and what she alleged to be harassment at her work.  From the perspective of the wife, Mr P reported that for the last six years however, she had adhered to the belief that it was better for the children to see their father on condition that contact was supervised, rather than not to see him at all.

7. Mr P further reported that despite the efforts of the wife to support and encourage the children having a relationship with him, the wife was then of the view that the children should “not be forced”, that their wishes should be respected, that they should be allowed to speak with their father if and when they chose and have whatever contact with them that they may desire.  He said that even though the wife understood the husband portrayed her as an alienating parent intent on denying him a relationship with the children, she vigorously denied that such was the case and suggested to Mr P that any consideration of her past behaviour, the history of involvement with mental health professionals and her efforts to support the children would support her view.

8. Mr P then next dealt with the husband whom he described as an “extremely intelligent articulate and eloquent man”. He reported that it was the belief of the husband that the wife had completely “brainwashed” the children and that her motivation was purely financial, notwithstanding the cost of litigation.  He said that the husband was very genuinely distraught by the lack of involvement and influence he had with the children.  It was further reported by Mr P that at times during the interview the husband conveyed a “sense of hopelessness” about any prospect of contact with the children, balanced with the need to fight for them in an attempt to “protect” them from greater emotional damage.  There are other aspects that Mr P reported in respect of the history provided by each of the husband and the wife, but it is not necessary for me to recount that in any detail.  That which I have referred to essentially underpins what each party had to say to him. 

9. When next dealing with the child C, he said that she presented as an “intelligent and articulate child” who shared her feelings about the court process, her father's behaviour and his continued efforts at having contact with her.  He reported that the child understood clearly the reason for their meeting which was to assist the court to decide whether she would or would not see her father but:

   “Far from being alienated from him, that is, lacking any ambivalence or speaking only negatively about him, [C] conveyed great regret, sadness, confusion and a desperate wish that her father could be different amidst her belief that he cannot.”

10. Mr P reported that C told him that she did not like seeing her father because he said “bad things” about her mother, grandparents and the family.  She made other criticisms of him.  However, insofar as the issue of contact was concerned, she informed Mr P that she did not wish to see her father, but was prepared to speak to him on the telephone as that process gave to her some semblance of “feeling in control”.  He reported that C was adamant that no matter what a Judge said, she would not attend on contact and added that she is old enough to have an opinion of her own.  He reported that C harboured a “fantasy” that her father might change despite a realistic assessment that he cannot.  He further reported that C was seen in the company of her father which proved to be "a tense meeting". 

11. When next dealing with the child T, Mr P observed that he presented as “extremely anxious” and was “hyper-vigilant” prior to the meeting.  He said that T told him very clearly he had no wish to see his father, that he had in the past seen him but had never enjoyed the time they spent together.  He now feels that his life is “better off” without seeing his father.  Mr P reported that T conveyed a deep sense of “forlorn and hopelessness”, amidst a wish to not only not see his father, but not to have him involved in his life.  He reported that T told him that there was nothing his father could do to make him want to see him.  That is, he just did “not like” him.  Mr P said that T did not feel safe, was fearful and apprehensive and that his anxiety about what his father might do "seems overwhelming". 

12. The conclusions of Mr P were quite clear.  He concluded that the husband's behaviour was "extraordinarily self defeating" and that in the circumstances it was difficult to imagine how any order for the children to see their father could be enforced let alone how such a process could possibly be in the best interests of the two children.  He went on to say this:

    “My own view is that [the mother] has not profoundly alienated the children.  They do not show many of the features that are described of children who are supposedly affected by this process.  My assessment is that the children are very distressed, ambivalent and wish for a better relationship with their father but do not believe that he is capable of change.”

    [Later:]

    “Regrettably I think the prognosis for the children in relation to their father is extremely poor.  Whereas [the father] is seeking a solution and for things to improve, I think until there is a massive shift in his attitude, deep psychological change and some level of stability and consistency to the way he engages with them, that there is only remote likelihood that the children will be able to reconcile with him.  Whilst family counselling could be considered it may be difficult to engage the children in this process given their reaction and reluctance with me.”

    Orders were then made for no contact, save in the terms that I have already referred to. 

13. The second report, and helpfully so of Mr P, did not advance the position much further than that expressed by him in the 2006 report.  Again, he had recourse to significant documentation for his consideration.  When dealing with the wife he reported that she told him that since her previous meeting, the order was made by the Federal Magistrate on 17 August 2006, providing the children with "a reprieve".  No order was made for them to spend time with their father other than through negotiation with the Independent Children's Lawyer.

14. Mr P reported that the wife was clear that in the case of both children they had been very settled in the absence of any disruption from their father, that C had “settled extremely well” into her new school and was progressing well, both academically and socially.  She was involved in extracurricular activity and was generally "flourishing".  Mr P reported that T also was doing “extremely well”, and apart from a bullying issue at school that had been effectively dealt with he too was progressing in all areas without difficulty.  He said that the wife was clear however that T remained adamant about spending no time with his father whatsoever, albeit that she felt that C's position was “quite different”.  That is, that the child had a “deep yearning for a relationship” with her father, but that she wanted some “normality and stability” in her life and that she wanted "a normal father", who did not create havoc. 

15. Mr P reported that the wife had no objection to the children initiating contact with their father and that she hoped that in the future they would do so.  He reported that the wife reflected upon the fact that she had been embroiled in Family Law litigation since 1999 when she and the children first left the home.  She emphasised that even though enforced by court orders, the calm that has resulted has had a significant and positive impact upon the children.  She described C as generally “happier” and T as “more settled”.  The wife emphasised to Mr P that if the children wanted to see their father, she would endeavour to facilitate the contact in a “safe and structured” manner.  Mr P reported that even though the wife was positive about the prospect of the children initiating time with their father, she also cautioned that every time in the past they had endeavoured to do so, it had ended in debacle and the children traumatised. 

16. When dealing with the husband, Mr P reported that he perceived himself as “powerless” and as “losing” in the Family Law dispute.  He said that, from the husband's perspective, the entire situation had been created by the wife who was hiding behind both her family and the Family Law system.  He maintained to Mr P that the children were “alienated” and that they were angry and siding with their mother.  In this regard, it was his view there was little doubt that the children are alienated from their father.

17. Mr P said it was clear that the husband viewed the entire process with “doubt and suspicion”, and felt that the legal system and the assessments provided by him (Mr P) had “let him down”.  He maintained a belief that the wife was “distorting and manipulating” what had happened including what he had said and done in order to portray him as negatively as possible and thereby justify the exclusion of him from the children's lives.  It was the view of Mr P that the husband was completely alienated from the children.  He literally knew nothing about them.  He said that the husband recognised that there was enormous ground to be made in order to have a relationship with them. 

18. When dealing with the child C, Mr P reported that she had told him she had not even spoken to or seen her father since the previous report but said she had tried to telephone him after having received a birthday present, but was unable to get through. She made it clear that she did not want to spend time with her father but that she "might be prepared to see him" in the circumstances described by Mr P.  Mr P, with some sensitivity, said that he thought there was an indication in C's presentation of a glimmer of interest in her father, but she remained extremely cautious and guarded, hesitant and reluctant.  When he approached the possibility of C seeing her father she was open to that possibility but was absolutely clear that it was contingent upon him behaving in a “positive and appropriate” manner, and especially towards her mother. 

19. Mr P reported that the child T was adamant that he had no wish to see his father, nor was he prepared to give him “any semblance or opportunity” to reconcile the relationship.  He said that T informed him that his father deserved "no more chances", that he did not want to see him and that his father was both frightening and unpredictable.  Mr P then set out his conclusions which were as follows. 

    “With the passage of time, very little has changed in this family.  The children continue to refuse to see their father, and both convey a sense of not trusting him, feeling that he is frightening and unpredictable, and that he has caused to the family much distress by his behaviour. 

    … The one issue that from my perspective I believe is important to emphasise is that even though [the father] does not feel that he has done anything directly to the children to cause this alienation from them, through their eyes, it is his behaviour towards their mother and her family, the embroilment of them in this negativity and aggression, and the threats that they perceive to them from their father which to a large extent fuels their anxieties.

    A paradoxically simple intervention in this dispute is for there to be absolute peace, calm and a total moratorium on any discussion by [the father] with the children in the even that they agree to see him.  Regardless of the origins, the children have no trust in their father, have no confidence in him, believe that he will be angry, disruptive, act aggressively, that he will be frightening, and that he is a potential threat to the safety of their mother, and therefore to their family.  Regardless of whether this is true or whether a testing of evidence supports or does not support these concerns, this is the reality to the children that drives their behaviour.

    Whereas [T] is adamant he has no wish to see his father, [C] is open to the possibility, but only in the context of the security of a relationship with her mother, and only on the basis that her father might come to visit.  Even then, given the history of the dispute, the tensions and the ‘win-lose’ nature of the way that [the father] is now seeing the litigation, this will be an extremely difficult meeting to initiate, let alone offer support in order to maintain.  I do not think that a Court Order will be the way for the children to spend time with their father …

    … There can however be no denying the enormity of the damage done to the relationships, and it may be that [the father] needs to reflect upon the indirect impact of his behaviour upon the children and what they say about the impact on them.  I think there is little doubt that the children do not live in an emotional vacuum, and that they are aware and have been involved in their parents’ conflict, and that it has significantly impacted upon them.  [C]’s wish for a “normal family” probably best sums up the situation that is now the norm within this family, and also provides the only possible hope of any, albeit minor reconciliation of relationships”.

20. When the proceedings commenced before me this morning, it was clear that the husband accepted the inevitability of what Mr P had to say, namely that there be a moratorium of the time he seeks to spend with the children.  That was a rational and sensible stand for the husband to take and in my view it would be appropriate for the wife to inform the children of this fact and do so in a sensitive and appropriate manner. 

1. I received oral evidence from Mr P limited to two issues, namely that of phone calls to the children from the husband rather than at their instigation, and secondly a "sunset clause" to the open-ended format of the proposed orders advanced on behalf of the wife and the Independent Children's Lawyer.

2. In relation to each of the proposals, Mr P was quite averse to them and for quite compelling reasons, particular given his long involvement with the children now ranging over some six years.  He felt nothing could be done about it, and that the children would not respond to any telephone call in which circumstances it would be a hollow order.  He was of a view that it would not be helpful for me to make an order for the husband to telephone the children.  As to the second issue, he agreed that if matters were left as they are, "they will stay as they are".  He did not recommend counselling for the children in the future.  He said that the children simply do not trust their father, nor do they want to risk the safety of their mother. 

3. As to the suggestion of counselling with Ms N, in essence and bluntly, he said that “it would not work”.  For example he said that C did not even want to attend the last meeting he had with her, and that T attended "under sufferance".  Whilst it is tempting to recommend some further counselling, his opinion was that it should not take place.  However, and significantly in my view, the wife proposed through Mr Mawson that the children meet with Mr P in 12 months to see if there was an additional change, looking to a situation whereby the children renew actual physical contact with their father.  That, in my view, was an excellent proposal and was one that I trust the parties, but in particular the wife, will work towards.  I have a ready expectation that the wife will do so and will, in a generous and loving manner over the following 12 months, encourage the children by gentle and positive persuasion to meet and reconcile with their father and travel the journey, as children should through their lives, with both parents.

4. There is one further matter that I wish to raise, and that is that the affidavits address issues that disclose a high degree of tension between the husband and the wife.  What I have to say now is addressed to them in order that they may understand that issues of stress should be avoided in the best interests of the two children who have endured chronic stress.  I emphasise that it can only be in their best interests to ameliorate as much as possible this undesirable situation.  Such a position was forcefully addressed by Dr Jennifer McIntosh in a paper, "Enduring conflict in parental separation. - Pathways of impact on child development”, Journal of Family Studies, volume 9 No. 1, April 2003 focusing upon the known impacts of entrenched parental conflict on the development of children. 

5. In the course of her paper, Dr McIntosh had this to say:

   “Unresolved enduring parental conflict can violate children's core developmental needs and threaten their psychological growth.  These findings provide a strong impetus to child focused practices in Family Law dispute resolution.  They point to a need in the practitioner for an unapologetic mindfulness of the needs of children.  The challenge that this research throws down to the practise front is real, to deal with this not as the flavour of the month, nor the last itch in the Attorney General's department, but as a fundamental evidence based push for evolution in practise.”

6. Later under the heading, "Through a developmental lens.  Impact on parental conflict”, Dr McIntosh went on to say:

   “Secure family environments and emotionally responsive parenting in all family constellations provide the core foundation for the developmental needs of children.  Certain developmental goals for children at different stages are more easily threatened by virtue of their age related ability to understand nuances and implications of parental conflict.”

7. Later in the course of her paper under the heading, "Impacts of parental conflict on the core developmental tasks”, Dr McIntosh said:

   “Enduring parental conflict disrupts the very organisation of emotional experience in any childhood.  This type of disruption may have both escalating and cumulative development consequences.  It interrupts vital attachment processes in infancy and toddlerhood with high intensity conflict linked with the development of insecure and disorganised attachment styles.  In turn this interrupts the development of emotional security with children becoming more prone to negative emotional arousal and distress, less able to regulate their feelings, less optimistic about their ability to cope and less able to cope.” 

   [Later:]

   “A child's ability to regulate their emotions and behaviours develops primarily in the family context.  It is promoted by parental soothing, collaborative conflict resolution, discussion of emotions and the events that elicit them, and coaching of adaptive responses.  When these normative parental functions are eroded by conflict children's inability to regulate their own emotions and to adapt in a socially competent manner can be sorely compromised.”

8. I have taken the time to address these fundamental issues for the benefit of the parties so that the future development of their two children will be one travelled free of ignorance.  The orders made this day in my view demonstrate the beginning of a determination to address the best interests of the children which is, after all, the paramount consideration.  The situation is now defined by these orders as are their rights duties and obligations.  Each of the husband and the wife must genuinely embrace the spirit and intent of the orders arising from the discussions that we have had in court this day, and look ultimately to the establishment of mutual respect, trust and cooperation.  Without that, the future will predictably be one fraught with dissent and difficulty, the adverse impact of which upon the development of C and T will be apparent from my earlier commentary.

9. The road to reconstruction of the husband's relationship with the children is there to be travelled.  It will be demanding of commonsense, dignity and respect.  Most of all it will require discipline and restraint.  All the issues have now been resolved by the parties, in my view, with consummate dignity. 

10. An issue arose on the question of costs arising from a hearing before me several months ago in the Judicial Duty Lists.  That too, I suspect, could have had the potential to be anxiety provoking had it proceeded into argument.  I am merely speculating on that.  It has been resolved too.  In my view, the parties should address this day as a very important one for them both, that they should move forward in a positive and enlightened manner seeking to achieve the best that is possible for the two children from the wreck and havoc of the past. 

11. I have already marked the Minute of Consent Orders regarding overseas and passport issues as Exhibit “A”.  I mark the consent welfare orders, Exhibit “B”.  I congratulate the parties on having the insight and the dignity in coming to these arrangements.  It takes a lot of determination.  I congratulate the parties’ practitioners too in facilitating this result.

12. I direct the wife's solicitors engross the orders.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  22 October 2007