Michaelson and Michaelson

[2017] FamCA 174

FAMILY COURT OF AUSTRALIA

MICHAELSON & MICHAELSON [2017] FamCA 174

FAMILY LAW – CHILDREN - Best interests – Where the children express a strong desire not to spend time with the father – Where the children’s wishes are given significant weight given their expressed wishes and maturity - Where the father has demonstrated a lack of insight into how his behaviour affects the children – Whether the mother should be allowed to relocate to the United Kingdom with the children – Where the children express a desire to relocate with the mother – Where the application for international relocation is granted – Where the children shall spend time and communicate with the father upon their request.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAC

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
SCVG & KLD Error! Hyperlink reference not valid.

APPLICANT: Ms Michaelson

RESPONDENT: Mr Michaelson

FILE NUMBER: BRC 2560 of 2015

DATE DELIVERED: 23 March 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 7 - 8 February 2017

REPRESENTATION

FOR THE APPLICANT: Mr Brandon as solicitor advocate

SOLICITOR FOR THE APPLICANT: Evans and Company Family Lawyers

FOR THE RESPONDENT: Self-represented

Orders

BY CONSENT

1. That the children B born … 2000 and C born … 2006 live with the mother.

IT IS FURTHER ORDERED

1. That all previous parenting orders be discharged.

2. That Ms Michaelson (“the mother”) have sole parental responsibility for the children.

3. That Mr Michaelson (“the father”) spend time with the child B at such times as may be agreed between the father and B.

4. That the father spend time with the child C at all such times as may be agreed between the mother and father in writing.

5. That the father be at liberty to communicate with the children by sending emails to the email address … or such other email address as he is notified by the mother or children from time to time.

6. That the father be at liberty to send gifts and cards to the children on each of their birthdays and at Christmas.

7. That the mother keep the father informed of an email address and postal address for the children at all times.

8. That the father keep the mother informed of an email address and postal address at all times.

9. That the mother be at liberty to relocate the permanent residence of the children from Australia to the United Kingdom provided that she provide the father with thirty (30) days written notice of the details of the relocation.

10. All extant applications are dismissed.

11. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations this order creates and the particulars of the consequences that may follow if a person contravenes this order, and details of who can assist parties adjust to and comply with this order are set out in the fact sheet attached hereto. These particulars are included in this order.

NOTATION

It is noted that the mother will facilitate the child, C, spending time with and communicating with the father should the child so request.

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 Michaelson & Michaelson 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 BRISBANE

FILE NUMBER: BRC 2560  of 2015

Ms Michaelson

Applicant

And

Mr Michaelson

Respondent

REASONS FOR JUDGMENT

1. Ms Michaelson (“the mother”) and Mr Michaelson (“the father”) are the parents of B born in 2000 and C born in 2006 (“the children”).

2. The children live with the mother and no change to that is proposed. The mother and father also agree that the mother should have sole parental responsibility for major long term decisions.

3. The parties are in dispute about what time the children spend with the father and whether the mother should be at liberty to relocate with the children to the United Kingdom (“the UK”). The father concedes that B will make his own decision about when or if he spends time with the father.

issues requiring determination

1. The following issues were identified by the parties as requiring determination:

   a)Whether there is any prospect of the children participating in therapy to re-establish their relationship with the father;

   b)Whether the mother should be able to relocate with the children to the UK; and

   c)Whether a further interim order should be made while therapy is attempted involving supervised time between the father and children and an update family report prepared in six months.

background

1. The parties were married in 1995 and separated in 2015. They are divorced.

2. The mother is a dual Australian and UK citizen. The father is an Australian citizen. The parties met in the UK and moved to Australia in 2001 where they have since resided.

3. The father is currently unemployed but is expecting to be re-registered as a health professional shortly. The mother is not employed and has not been employed since moving to Australia other than managing the father’s business at times. She was an allied health professional prior to moving to Australia.

4. The father has experienced some controversy in a number of workplaces and his registration as a health professional has been suspended on occasions.

5. It seems that prior to separation the children had a reasonably good relationship with the father and that he was involved in their care.

6. At present, the children refuse to have anything to do with the father and he has spent no time with them since 26 March 2015.

7. An order was made by consent on 1 March 2016 providing for a psychologist, Ms D, to assess the children and if appropriate to assist in their re-introduction to the father. Ms D was unable to persuade the children to even meet with the father so therapy did not progress.

8. A family report was prepared on 24 August 2016 by Ms E. The children were not observed with the father because they refused to meet with him.

9. The mother sought to relocate with the children to the UK by application filed in October 2015. The matter was transferred to this Court on 25 October 2016 and listed for a final hearing.  

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and 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.

4. Section 60B(2) provides that 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;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

8. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and includes causing a child to suffer serious psychological harm.

9. Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a family member or causes that person to be fearful.

10. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

11. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

12. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]

    [3] Banks & Banks (2015) FLC 93-637

father’s case

1. It is the father’s case that he had a close and loving relationship with the children up until 26 March 2015. He contends that the children have been provided with misinformation by the mother causing them to turn against him.

2. The father argues that although Ms D was suitably qualified she did not make sufficient attempt to engage the children in therapy and that someone with greater skills than Ms D should undertake the task.

3. He proposes that Dr F, psychologist, supervise his time with C pursuant to s 65L of the Act and that prior to the supervised time commencing, C should attend upon Dr F (presumably to persuade him to see the father).

4. After six months the father proposes that Dr F prepare a report presumably to consider what if any further orders might be made.

5. I note that there is no evidence before me from Dr F.

mother’s case

1. The mother contends that the children have been adversely affected by the father’s behaviour particularly since separation and have independently formed the view that they do not currently want any association with the father.

2. In particular she refers to the following:

   a)The father informed C of the separation the day before C’s birthday causing him considerable upset;

   b)The father informed C in a telephone call that same day that the mother had asked the father to leave (which she denies);

   c)The father commenced attending unannounced at the former matrimonial home at odd hours of the day and night;

   d)His odd behaviour caused the mother and children to feel upset;

   e)The father commenced removing things from the former matrimonial home;

   f)The father left the mother with no access to bank accounts and no ability to meet expenses;

   g)The father left Queensland in or around April 2015 and did not return until October 2015. He first requested time with the children in August 2015;

   h)The father removed the car used by the mother from the secure car park at the airport while the mother and children were in the UK;

   i)The mother was initially informed that the car had been stolen;

   j)Upon arrival back in Australia the mother told the children that the father had removed the car as she had to make alternate arrangements for their transport from the airport;

   k)The mother and children were visited by police while in the UK and their passports seized after the father commenced proceedings under the Hague Convention. She contends that there was no need to commence those proceedings as the father had been informed that she would be returning as she had done on occasions in the past. The children were upset and shocked by the attendance of police;

   l)Upon returning to Australia on 9 February 2016 the mother and children had nowhere to live and had to book into hotel accommodation;

   m)The father failed to comply with a court order that he make financial payments to the mother;

   n)The children were excluded from their school because their fees were not paid and were unable to continue with their extra-curricular activities because the mother had no means from which to meet the cost;

   o)The mortgagee of the former matrimonial home threatened its sale because the mother had been deprived of funds and was unable to make mortgage payments;

   p)The mother was unable to maintain the former matrimonial home causing it to fall into disrepair causing embarrassment to the children;

   q)The father made public Facebook posts concerning the family’s financial matters;

   r)The father moved back into the former matrimonial home while the mother and children were in the UK contrary to an order providing the mother have sole use and occupation;

   s)Upon the father departing he took with him various items belonging to the mother and the children including their Nitendo Wii video gaming system;

   t)The father posted on Facebook photos of himself wearing various personal items removed from the former matrimonial home which were seen by the children;

   u)The father posted on Facebook a copy of the temporary protection order made against the father which identified the children and the mother and their address. The post was followed by a number of comments some of which were derogatory of the mother;

   v)The father posted on Facebook a photo of himself holding a sign criticising the mother for withholding the children from him;

   w)The Facebook posts were brought to the mother’s attention by B who was a ‘friend’ of the father on Facebook but many of the posts were on a public Facebook page of ‘the Australian Brotherhood of Fathers’;

   x)The father used social media including Instagram to comment about the Family Court proceedings he and the mother are involved in;

   y)The father posted inappropriate sexual comments on a chat room site where the recipient of the posts was a young teenage girl;

   z)The father posted photos of himself  with purple hair and a long beard; and

   aa)The mother receives no child support from the father.

3. The mother wishes to return to her home country where she has significant family support. The children have frequently holidayed in the UK and are happy to relocate. B, in particular, has a strong affinity with the UK. The mother’s father has terminal cancer and she and the children want to maximise their time with him before he dies.

Ms D’s evidence

1. Ms D is a psychologist chosen by the parties to assist the boys in repairing their relationship with the father.

2. She saw the boys in individual sessions and together on 5 April 2016. In her oral evidence she describes the boys as being adamant that they would not meet with the father. B described his reasons as relating to what the father had “done about the house” and how he had “treated his mother”. Ms D describes C as being very angry with the father. He said his father had taken his crystal stone collection which was precious to him and had been mean to his mother. Ms D stated that C presented as “very anxious and angry” at the prospect of seeing his father. Ms D said that the boys “would not budge”. Ms D determined that forcing the issue was not going to be helpful for the boys as it would be anxiety provoking and ultimately it was futile to press it because the boys would not meet with the father.

3. Ms D conveyed this information to the father. She describes the father as focussed on the “wrongs” committed by the mother and how the boys were petrified of her.

4. Ms D stated that it was not her impression that the boys were influenced by the mother in their stated views. Even if she had been able to persuade the boys to come to another session she doubted she would have been able to advance matters. She describes her interviews with the boys as “extensive” and their views being “consistent”.

5. Ms D confirmed that the account of her conversation with Ms E on 2 August 2016 as set out in the family report was accurate. I note in particular her comments that C presented as “quite distressed” when speaking about his father and that his verbal account was congruent with his non-verbal presentation. B expressed a similar view but “being older and better able to process things, he was able to imagine a future where he might want to see his father”. Ms D described the father as showing “no empathy or emotion” and that his strong focus was on what he perceived the mother had done.

6. I accept Ms D’s evidence.  

Ms E’s evidence

1. Ms E is a very experienced social worker with formal qualifications in both social work and psychology. She undertook interviews with the family and significant others on 26 July 2016. She gained the impression that the father and B had a happier relationship prior to separation but that B’s opinion had changed after separation and he spoke of behaviour by the father about which he did not approve.

2. Ms E opined that further therapy would be difficult because in order for therapy to be successful there needs to be some preparedness by the participants to change. She opined that it is not possible for a therapist to force someone to do something that they do not want to do. Therapy in such a scenario would not work.

3. In her interview with C, he spoke about the father’s conduct after separation e.g. turning up in the middle of the night and being woken up by his presence; taking things from the house including personal items of his mother’s which the father then posted on Facebook; that he left the night before his birthday; that he stole his prized crystal collection and his brother’s Wii console etc. Many of the things complained about were within his own personal knowledge and some he had been told about by B and his mother. He repeatedly described his father as “weird” and that he did not want his friends to make fun of him because of his father. C was adamant that he did not want to see his father responding to that suggestion - “Oh, no! I don’t want him to come in here. He’s probably going to try and hug me”. He said that if the Judge said he had to see his father he would say “Nope. Nope. Absolutely nope”. 

1. Ms E opined that given the boys’ clear wishes and their level of maturity, their wishes should be given significant weight. In her view an order that the boys spend time with the father would not only be counterproductive it would not be able to be complied with given the strength of the views expressed. It would be counterproductive because, in her view, “the boys would be likely to further resent their father”. She opined that if the mother were put in a position of having to force the boys to go against their wishes there is potential for the boys’ relationship with their mother to be damaged.

2. According to Ms E, the father displayed “limited capacity to reflect on his own behaviour and the impact that it has on his children”. That was certainly the impression I gained during the trial. Ms E agreed with Ms D’s opinion that the father showed a lack of empathy and emotion in relation to his children.

3. Ms E opined that the mother “appeared to be supporting her son’s views rather than imposing her views upon them”.

4. The children expressed a clear preference to relocate with the mother to the UK and in Ms E’s view they are “likely to further resent their father” if they are precluded from doing so. She recommends that the mother be able to relocate with the children to the UK.

5. Finally, it is her view that,

   [the] best hope for the boys to begin to see their father in a different light and to open their minds to resuming some kind of a relationship with him, would be for them to see him acknowledge that his actions and behaviour have had some impact on them, and I am not sure whether [Mr Michaelson] has the capacity to do this at this point in time.

6. I accept Ms E’s evidence.

discussion

1. While there are many factual issues in dispute in this case the overwhelming uncontentious fact remains that the children are adamant that they will not see the father at this time. I am satisfied that the children have, rightly or wrongly, formed their own views from their own knowledge and experiences of the father.

2. I do not see any need to traverse each and every allegation and counter allegation made by the parties and make findings in relation to same. However, I note that the father concedes a number of matters, such as posting a copy of the protection order on Facebook and making comments on social media about these proceedings. He knew that B was his ‘friend’ on Facebook but this did not temper his actions.

3. What is striking about the father’s case is the absence of any reflection or contrition for any behaviour that may have led the children to form the very rigid view they currently have of him.

4. The father contends that they have been alienated by the mother but he overlooks the boys’ own experiences which I accept, e.g.:

   a)Of being present when police came to the home they were staying in the UK in early 2016 confiscating their passports (the father does acknowledge that this must have been a terrible experience);

   b)The father disappeared from their lives for months after separation and moved to Melbourne;

   c)He ignored a court order that he was to provide part of his income protection payment to the mother and left her with no money (I reject his assertion that the mother had plenty of money at the time);

   d)The boys’ school fees were not able to be paid and they were excluded from their school;

   e)When they arrived back from the UK the car that their mother had left at the airport had been removed by their father and thereafter they had no means of private transport;

   f)The father posted comments about the family breakup on Facebook to be seen by all. The boys did see the posts and some comments on the father’s posts were derogatory of the mother; and

   g)The father has taken no care to protect the boys from his bizarre and inappropriate behaviour in online public ‘chat rooms’.

5. Ms D noted how difficult it was to focus the father on the children rather than the alleged shortcomings of the mother. His conduct of the case showed a similar propensity.

6. His only submissions were that C had a right to have a relationship with him and if they move there will be no prospect of that occurring.

7. While it is true that C has a right to have a relationship with the father, that right is only to the extent consistent with his best interests.

8. The father proposes that I make an interim order and that C be exposed to yet another psychologist. Given the descriptions of C’s demeanour by both Ms D and Ms E I consider the father’s proposal in this respect shows a complete lack of insight.  

9. The mother proposes to relocate with the children to G Town in the county of H, UK where she grew up and undertook her schooling. She has investigated schools and has been offered accommodation with relatives and friends until she acquires a suitable rental property. All of her household contents are in storage in Australia as she is currently living in a fully furnished property. Her worldly goods can be transported without her having to be in Australia.

10. Once settled the mother proposes to retrain so that she can re-enter the workforce.

11. The mother has neither family in Australia nor many friends. The frequent moves and the father’s difficulties in his employment hindered the building of strong friendships. The mother has maintained her friendships in the UK by her annual holidays there with the children.

12. The mother’s father is terminally ill although he has managed to survive longer than first anticipated.

13. If the children are precluded from relocating to the UK their relationship with the father is only likely to deteriorate further and if the mother were obliged under a court order to force the children to see the father it is likely to damage the children’s relationship with her.

conclusion

1. The parties have been embroiled in court proceedings since March 2015. I can see no utility in making another interim order. The boys refuse to see the father at this time and forcing the issue will not only be anxiety provoking but ultimately counterproductive as described by Ms E.

2. I can only suggest that the father obtain some therapy himself in order to gain some insight into his children’s perception of his behaviour and how he might commence to address that.

3. The children have expressed very firm views not only about not seeing their father at this time but also about relocating with the mother to the UK. The family have considerable support and connection to the UK.

4. If the children are able to relocate it may even assist in a small way in mending their fractured relationship with the father. The father will be able to communicate with the children although they may choose at this stage not to reciprocate.

5. The father should take some heart from the fact that B has not ruled out communicating and even seeing his father at some future time. In my view, whether that occurs and whether C also comes to that view, will be enhanced by the father acknowledging and accepting the boys’ perceptions and wishes and maintaining the lines of communication.

6. For the reasons articulated I propose to make the orders as outlined above.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 March 2017.

Associate: 

Date:  23.03.2017