Michaels and Messina
[2018] FamCA 59
•9 February 2018
FAMILY COURT OF AUSTRALIA
| MICHAELS & MESSINA | [2018] FamCA 59 |
| FAMILY LAW – CHILDREN – Where orders made by consent in the course of final hearing resolved the majority of the issues between the parties – Where the compass of the dispute is limited – Where the only issue remaining is the father’s time with the children during the December/January holidays – Where there is significant parental conflict – Where the Family Consultant recommends there be no more than three weeks between the father’s times with the children – Where the Family Consultant opined that if the children were pushed in their relationship with the father they may resist contact completely – Where it is in the best interests of the children to make orders that reduce contact and conflict between the parents – Orders made as sought by the mother and supported by the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC |
| Mazorski & Albright [2006] FamCA 994 McCall & Clarke (2009) FLC 93-405; [2009] FamCAFC 92 |
| APPLICANT: | Mr Michaels |
| RESPONDENT: | Ms Messina |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Campbelltown Family Law |
| FILE NUMBER: | PAC | 4009 | of | 2012 |
| DATE DELIVERED: | 9 February 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 9 - 11 October 2017 & 25 January 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hill |
| SOLICITOR FOR THE APPLICANT: | Farah Lawyers, Solicitors & Barristers |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE RESPONDENT: | El Baba Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Campbelltown Family Law |
Orders
That B and C spend time and communicate with the Father during the 6 week NSW gazetted school holiday period for four days during the first week and for four days during the fourth week as follows:
(a) From 11am to 4pm Wednesday
(b) From 11am to 4pm Thursday
(c) From 11am to 7pm Friday
(d) From 11am to 5pm Saturday
and changeovers are to occur at D Contact Centre.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Michaels & Messina has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4009 of 2012
| Mr Michaels |
Applicant
And
| Ms Messina |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
introduction
This matter concerns the long term parenting arrangements in respect of the three daughters of Mr Michaels (“the father”) and Ms Messina (“the mother”) who are aged 11, nine and seven respectively (“the children”).
Following separation in April 2012 the children have always lived with the mother. The father’s parenting application at all times has related only to his time with the children.
In the course of the three day final hearing the parties reached agreement concerning virtually all matters relating to the children’s parenting arrangements. Terms of orders reflecting that agreement were signed and tendered in the proceedings.
It was agreed that the mother would have sole parental responsibility for the children and that each parent would be responsible for day to day decisions with respect to the children when spending time with each of them. The parties also agreed that the children were to live with the mother and that the youngest child spend time with the father in accordance with her wishes. Agreement was reached that the two older children will spend defined time with the father (a seven hour block period) on Father’s Day and at Christmas and Easter and such further and other times as agreed between the parties in writing. The agreement reached with respect to all of these and other matters was contained in Exhibit 8.
After the parties agreed to the arrangements for all of the matters in Exhibit 8 the compass of the parenting dispute was very limited and centred around the father’s time with the children during the school term and school holidays. The parties then reached a further agreement towards the end of the final hearing about these remaining matters in dispute. It was agreed that the elder two children spend time with the father in a block periods for two hours and 45 minutes each alternate Friday and for seven hours on the Saturday following each alternate Friday with changeover to occur at a particular named contact service. The parties also agreed that the children spend time with the father during the school holiday period following terms one, two and three for periods of between five and eight hours on each of four consecutive days in the holidays and that changeover occur at the same contact service. This agreement was contained in Exhibit 19 in the proceedings.
Final orders have now been made in terms of Exhibit 8 and 19 with the consent of the parties.
After agreement was reached in terms of Exhibit 19 the dispute to be resolved at the hearing was extremely limited and related only to the father’s time with the children in the lengthy school holiday at the end of term four.
The Party’s Proposals
The father’s proposal for the long summer holiday is that it be in the same pattern for a four day period as for other school holiday periods and occur every first, third and fifth week of the holidays.
The mother’s proposal for the long school holiday period is that it occur in the same pattern as proposed by the father but that it occur twice (as opposed to three times) during this holiday period during the first and fourth week.
The Independent Children’s Lawyer (“ICL”) supports the proposal of the mother.
Background
The parents commenced a relationship in 2003 according to the father or 2004 according to the mother. There is significant dispute as to the nature of the parties’ relationship with the father claiming that they lived together at his father’s property from the time the relationship commenced. The mother alleges the parents did not live together at any point during their relationship.
The parties agree that they separated on a final basis around April 2012. At this time the children were almost six, almost four and one and a half respectively.
In September 2012 the father initiated proceedings in this court seeking to spend each alternate weekend with the children and telephone communication once per week. Other than an order in relation to changeover the father did not seek any other orders with respect to the children.
The family participated in the Child Responsive Program in February 2013 when the oldest child was almost seven, the middle child almost five and the youngest child two and half. At that time the children had not spent any time with the father following separation. The oldest child appeared to the Family Consultant to be anxious when talking about spending time with the father and indicated that she did not wish to do so. The younger two children were not interviewed due to their ages but were observed by the Family Consultant with each parent. When the children were taken to see their father the oldest child was observed to freeze and told the Family Consultant repeatedly that she did not want to enter the observation room. The middle child also expressed a similar view. In these circumstances the Family Consultant did not require that the children be observed with their father. The father agreed that based on the children’s presentation it would be important that the children were eased into spending time with him.
On 13 August 2013 orders were made by consent for the children to live with the mother and for the parties to engage with a contact centre for the purposes of the father spending time with the children each Saturday. The father spent two hours each week with all three children from late 2013. The youngest child regularly refused to spend time with the father at the beginning of each session but joined her sisters later on each occasion.
In February 2015 the family members met with a Family Consultant for the purposes of a Family Report. In that report dated 23 April 2015 the Family Consultant made various recommendations to which I will return, including that if the court determined that the father did not pose an unacceptable risk of harm to the children and they were to commence spending unsupervised time with him that this start with a three hour period and be gradually increased to a full day of unsupervised time. The Family Consultant had some concerns about whether the youngest child would continue to experience difficulties in spending time with her father.
At about the time that the Family Report was released the mother began not making the children available to spend time with their father at the contact centre and enrolled them in netball during the father’s time on a Saturday.
In September 2015 the parties reached agreement that the father spend time with the children each alternate Sunday for four hours with changeover only to occur at a contact centre and orders were made by the court in accordance with this agreement.
The parents subsequently agreed between themselves that the father’s time would be increased to a block period of five hours each alternate Sunday and then increase to eight hours.
The father’s time occurred in accordance with the parties’ agreement on a few occasions.
On 12 March 2016 there was an incident that caused the mother to be concerned about the father and as a result she refused to abide by the agreement for the children to spend time with their father in block periods of eight hours. Instead she continued to make the children available from that time for four hour periods in accordance with the September 2015 orders.
This arrangement for spending time with the older two children continued up until the time of the final hearing. On each occasion the youngest child did not leave the contact centre with the father. She generally spent a short time only with him at the centre and on many occasions refused to spend time in the same room as the father at the centre.
There were further unsuccessful attempts to resolve the matter through mediation and in August 2016 trial directions were made and an updated family report was ordered.
In November 2016 the Family Consultant again saw the family members for the purposes of the updated assessment.
Expert Evidence
The same Family Consultant interviewed family members on three occasions and was the author of the Child Responsive Program Memorandum (Exhibit 2). The Family Report (Exhibit 3) and the updated Family Report (Exhibit 4).
The Family Consultant’s evaluation in the updated Family Report was that the children appear to have an established and positive relationship with the mother and the older two children appear to have an established but not close relationship with the father. The Family Consultant was of the view that the youngest child does not have an established relationship with the father and continues to decline to explore developing such a relationship.
The Family Consultant expressed the opinion that the parents have “a long history of toxic conflict, with each party alleging the other has been physically violent towards them and towards other family members”. In this regard the Family Consultant noted that the parties have been in litigation since 2012 and as recently as eight months prior to her final assessment there were allegations being made about a highly conflictual incident between the parents in the presence of the children. She observed:
Irrespective of what is determined by the court regarding this incident, the incident demonstrates the chronic nature of the parental conflict within which the children live. Exposure to or involvement in parental conflict is recognised as a significant contributing factor to the development of mental health problems for children, as well as poorer well-being outcomes.
The Family Consultant expressed the view that it appears likely that the children’s negative stance towards their father and alignment with their mother is based on a combination of factors including the mother having spoken about the father’s alleged family violence towards her to the children and the father’s reserved and somewhat awkward manner when interacting with the children at times. She opined that if the children are forced to spend overnight time or more days per fortnight with the father, they are likely to resent him and this may lead to a complete breakdown in their relationship with him. Overall her recommendations were that the two older children spend each alternate Sunday with the father for a block period of seven hours and that changeover continue to occur via the contact centre. The Family Consultant expressed the view that school holiday time and telephone contact could not be recommended. She also recommended that the mother hold sole parental responsibility for the children and that the youngest child spend time with the father according to her wishes.
At the final hearing the Family Consultant was cross-examined after the parties had reached agreement about the first group of issues. The live disputes at that stage related to the father’s time with the children during the school term and school holidays.
The Family Consultant remained firm in her view that the conflict between the parties remains very high and that appropriate orders in the best interests of the children would be those that are likely to reduce the conflict between the parties.
So far as the specific issue of holiday time is concerned the Family Consultant said that she would have a concern if there was a lengthy gap in the father’s time with the children and was specifically asked about the frequency for the then upcoming long summer holiday. The Family Consultant commented that if there were a large gap between the times the father spends with the children then due to the nature of the parental conflict such a gap would invite the breakdown of any time arrangement. She recommended that there should be no longer than a two to three week period between the father’s times with the children over the summer holidays.
The Family Consultant has tertiary qualifications including a Bachelor and Master of Social Work. She has worked as a counsellor with a non-government agency for ten years and has been a Family Consultant at the Family Court for nine years. She is chair and co-writer for Keeping Kids in Mind, a post separation parenting program. She was cross-examined by each of the parties in the proceedings and remained firm in her views. Cross-examination did not challenge her expert opinion but rather presented different scenarios in relation to the limited compass of the parenting dispute. In these circumstances I accept the opinion of the Family Consultant and attach weight to it.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects 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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional matters to be considered by a Court in determining what is in a child’s best interests.
Given the extremely limited compass of the parenting dispute which focuses only on the issue of the father’s time with the children in the long summer school holidays there will be a limited consideration of these matters in determining what orders are in the children’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
Although the meaning of the phrase “meaningful relationship” is not defined in the Act it has been interpreted as meaning a relationship which is “significant” “important” or “of consequence”[1]. The final orders made by consent providing for the children to spend defined time with their father during the school term and in each school holidays support the older two children having a significant relationship with their father.
[1] McCall & Clarke (2009) FLC 93-405; [2009] FamCAFC 92 approving Brown J in Mazorski & Albright [2006] FamCA 994.
The older two children’s meaningful relationship with their father will be maintained whether they spend time with him in the long summer school holidays during three block periods as proposed by him or two block periods as proposed by the mother.
The orders agreed to by the parties and made with their consent will not foster the youngest child having a meaningful relationship with her father. In the circumstances of this case such an order was not made on the basis that there will be no positive benefit to the younger child by a court making orders to foster that relationship. Rather, those orders recognised the reality of the limited relationship the youngest child holds with her father and recognition that she is more likely to develop a relationship with him if she spends time with him in accordance with her wishes. The same reasoning applies with respect to the parent’s proposals concerning the father’s time with the children during the December/January school holidays under consideration.
The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This matter relates to the need to protect children from particular harm arising in particular ways.
Each parent conducted their respective cases on the basis that the children had been exposed to family violence perpetrated by the other parent. However, in each agreeing to orders that the children live with the mother and that the father spend defined unsupervised time with them during the school term and the holiday period both parents can be taken to accept that neither parent poses an unacceptable risk of harm to the children.
The greatest risk of harm to the children that arises from the evidence in these proceedings is the harm associated with the children’s exposure to the chronic and “toxic” conflict between the parents. Although this conflict is at a severe level in my view it does not fall within the definition of “family violence” in the Act and will be considered later in these Reasons.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
The eldest child was interviewed by a Family Consultant on three occasions and each time expressed somewhat negative views towards the father. Most recently the eldest child expressed the view that she did not really like seeing her father and would prefer not to spend time with him. She maintained that she felt uncomfortable with him. The child was adamant that she would not spend time with the father overnight.
The second child was interviewed twice by the Family Consultant (and on the first occasion at aged four and a half this occurred on her insistence rather than at the suggestion of the Family Consultant). This child spoke in negative terms about the father on both occasions and most recently when aged eight and half said she was willing to continue to spend a short period of time with him but would still feel “worried and a bit scared” to do so.
The youngest child who was six when interviewed on one occasion was negative about her father and said she that she did not see him because she did not like him. She said that she would not spend time with her father even if he had changed.
Given the children’s young ages, in accordance with the recommendation of the Family Consultant I only place limited weight on their views (except to the extent that they reflect the nature of their relationship with their father).
Nature of the children’s relationship with each parent
I accept the assessment of the Family Consultant that the children have an established and positive relationship with their mother and that the two older children have an established but not close relationship with their father. In this regard I note that the two older children conceded to the Family Consultant that they do have some positive times with their father but maintained overall that they are not close to him.
I also accept the Family Consultant’s assessment that due to the father and youngest child having had little meaningful contact the youngest child does not have an established relationship with the father.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Although the father has not satisfactorily explained his lack of involvement with the children and desire or willingness to involve himself in their lives for about six months following separation, since September 2012 he has been diligent in pursuing orders to spend time with and communicate with the children.
Although the father initially sought orders in relation to the exercise of parental responsibility since October 2017 when he consented to an order that the mother hold sole parental responsibility he is no longer seeking to participate in long term decision making regarding the children.
Likely effect of change in the children’s circumstances
The orders proposed by the father that the children have four consecutive days with him on three occasions in the long summer school holidays will bring about some small change in the children’s circumstances as this will be an increase in the children’s time with him and separation from their mother.
Although the children have been able to express some positive views about the time with their father under his proposal they will spend four consecutive days with him in half of the weeks of the school holidays. The Family Consultant was of the view that if the children were pushed too far in their relationship with their father they might resist spending any time with him at all.
Capacity of each parent to provide for the children’s needs including emotional and intellectual needs
Although some concerns about the father’s parenting capacity arise in the proceedings it was not suggested that any of those shortcomings were such that it was not in the children’s best interest for him to spend time with them for four consecutive days in block periods in the school holidays. This matter of itself is not determinative in the proceedings.
I am of the view that other matters such as those contained in s 60CC(e)(g)(i) are not weighty factors in this limited dispute and s 60CC(2)(h) does not apply.
Any other relevant fact or circumstance
As previously indicated the most relevant matter relating to the best interests of the children in this very limited dispute concerning the father’s time with them in the long summer holiday is their exposure to chronic and toxic conflict between the parents.
The Family Consultant expressed the view that it was in the children’s interest that the opportunities for the parties to come into contact with each other be at a minimum. Having regard to this undisputed evidence it is clear that the parents will come into contact with one another less often under the mother’s proposal than the father’s proposal. Under the orders proposed by the mother, the children will already be exposed to 16 changeovers during the school holiday period as one occurs at the beginning and end of each day the children spend time with the father as there is no overnight time. The mother’s proposal is also consistent with the Family Consultant’s opinion that a maximum period of two to three weeks is an appropriate gap between visits. Under the father’s proposal the gap between visits would be shorter.
Conclusion
Having regard to the matters referred to above and giving weight to particular matters as explained, I am of the view that the orders proposed by the mother with respect to the only outstanding matter in dispute are in the best interests of the children. Accordingly, I make the orders as set out at the forefront of these reasons for Judgment.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 February 2018.
Legal Associate:
Date: 9 February
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