Needham and Jamieson and Anor
[2015] FCCA 2298
•21 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEEDHAM & JAMIESON & ANOR | [2015] FCCA 2298 |
| Catchwords: FAMILY LAW – Parenting orders – toxic conflict between parents – allegations of family violence and alienation – consequences of findings – relocation to (omitted) – order in best interests of children. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 65DAA, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 Rice & Asplund [1979] FLC 90-725 Watson & Watson [2013] FamCAFC 25 Young v Jackman (1986) 7 NSWLR 97 |
| Applicant: | MR NEEDHAM |
| First Respondent: | MS JAMIESON |
| Second Respondent: | MS K JAMIESON |
| File Number: | WOC 170 of 2012 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 27-29 April, 7 May 2015 |
| Date of Last Submission: | 8 July 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 21 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Counsel for the First and Second Respondents: | Mr Bolger |
| Solicitors for the First and Second Respondents: | Williamson Isabella Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Ford |
| Solicitors for the Independent Children's Lawyer: | Verekers Lawyers |
ORDERS
That all previous parenting Orders be discharged.
The Mother and Maternal Grandmother have equal shared parental responsibility for the Children X (born (omitted) 2005) and Y (born (omitted) 2007).
The Children live with the Mother.
The Mother be permitted to relocate with the Children to the (omitted) area.
The Children have no contact or communication with the Father.
IT IS NOTED that publication of this judgment under the pseudonym Needham & Jamieson & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 170 of 2012
| MR NEEDHAM |
Applicant
And
| MS JAMIESON |
First Respondent
| MS K JAMIESON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Orders made in relation to two boys, X born (omitted) 2005, 11 years old, and his younger brother Y born (omitted) 2007, 8 years old. The Court had to decide whether the children, or either of them, spent any time with their father, and if so on what basis. The dispute between the boys’ parents was exceptionally bitter. The hearing itself was the culmination of many years of seething conflict between the parents. There is no doubt in the Court’s mind that both boys have been aware of the parental conflict, have been overtly and subtly exposed to it, and have been affected by it.
Both the boys’ parents, and other significant adults in their lives, have acted at times in a most appalling manner. The zealous pursuit by the parents, and at a later stage by the Maternal Grandmother, to achieve the outcome that they each desire for this litigation has led each one of them to lose sight of the need to find an outcome that was in the best interests of the boys, and met their needs, in priority to the needs of each of the adults who are parties to this litigation. The harm to the children has already been done. There is nothing the Court can do to change that. In many respects these reasons for judgment represent an attempt to minimise the future risk for the boys, and even that may well be aspirational at best.
Background
The Applicant in this case is the Father. He is 54 years old, lives in the (omitted), and describes himself as a self‑employed (occupation omitted). The First Respondent is the children’s Mother. She is 33 years old, and also currently lives in the (omitted) region, together with the boys, at the home of the Maternal Grandmother. The Second Respondent is the Maternal Grandmother. She is 55 years old and currently lives in the (omitted), together with the Mother and the children.
The parents commenced cohabitation in (omitted) 2003, and separated in July 2007. It was a short, and on both accounts an unhappy relationship at times. The younger child, Y, was born shortly before separation.
The litigation between these parents appears to have commenced in 2012. In the present context, the early history of the case is not informative, and need not be set out here. The impression the Court has formed, however, is that the conflict between the parents became worse over time, rather than improved.
On 7 July 2014 final parenting Orders were made by consent. Looking back on these Orders, with all the wisdom that hindsight gives, it is perhaps surprising that these Orders were made by consent. Both parents represented themselves at the time, but a highly experienced Independent Children's Lawyer, Mr Peter Williamson, was representing the children. The matter had been listed for final hearing on 10 and 11 July 2014.
Instead, the parents agreed that there should be an Order for equal shared parental responsibility, that the boys live with their mother, and spend time and communicate with their father each alternate weekend from 4:30pm on Friday until 6:00pm on Sunday, and each alternate Wednesday from 4:00pm until 7:00pm. A number of consequential orders were made. The final hearing date was vacated.
Let it be very clear to all parties in this case – at the time that the Court made the Orders on 7 July 2014, those Orders were considered to be in the best interests of the children and consistent with the evidence before the Court. The Consent Orders were broadly consistent with a Family Report that had been prepared by Dr A, a Regulation 7 Family Consultant, on 13 January 2014. The nature of the conflict between the parents was quite apparent to the Court. Nonetheless, the Court considered the Orders to be in the best interests of the boys, even though it was probably optimistic in its belief that the parents had sufficiently changed.
In any event, what is clear from the evidence is that within a few days of the Consent Orders, the Mother and the children had relocated from the (omitted) to (omitted), where the Maternal Grandmother was at that stage living. This made it impossible for the children to spend time with their father in accordance with the terms of the Consent Order. The Father brought a recovery application and the Order was made by the Court on 12 August 2014. Mr Peter Williamson was reappointed as the Independent Children's Lawyer on behalf of the boys.
The matter was eventually listed for final hearing, once again, and a further Family Report was ordered. The final hearing took place for three days from 27 to 29 April, and then a fourth day on 10 May 2015. The parties were ordered to provide written submissions, and the last of these submissions came before the Court on 8 July 2015. The written submissions were comprehensive, and of most assistance to the Court in formulating Orders, and preparing these reasons for judgment.
By way of further background, the Mother has another son, Z, who is 16 years old, and lives with her. Between 2011 and 2014 the mother struggled with a serious illness known as Hodgkin’s lymphoma. There appears no contest about the fact that the Mother’s illness was life‑threatening. Indeed, the Second Respondent Maternal Grandmother openly conceded in evidence that one reason why she believed it appropriate for her to be joined to these proceedings is so that she could have a legal, as well as practical, role in caring for the children should their mother die. The impression formed from the evidence as at the final day of the hearing is that the Mother’s condition has improved, and is not necessarily life‑threatening, but she has not been entirely healed.
A number of events of significance took place in the period between 12 August 2014, when the children were ordered to be returned to the (omitted), and 25 December 2014, when an ugly incident occurred outside of (omitted) McDonald's during changeover on Christmas Day. The events will be discussed in detail in these reasons for judgment.
It is common ground that the Father has not spent any time with the children since 25 December 2014. Indeed, he consented to an Order that his time and communication with the children be suspended, pending final order.
As well as the very difficult issues that are raised in this case pertaining to the Order that is in the best interests of the children, two other legal issues were raised as preliminary issues. Firstly, both the Father and Independent Children's Lawyer raised the issue of the legal principles associated with the Full Court’s decision in Rice & Asplund [1979] FLC 90-725. In this regard the focus was placed on the final Consent Orders made 7 July 2014, and whether it would be in the best interests of the children to revisit that Order.
The second issue, again raised by the Father and the Independent Children's Lawyer, is that the Mother was in contempt of Court by acting contrary to the Orders made 7 July 2014, and thus did not have the right to agitate for further Orders in the same cause of action, until her contempt is purged. Both of these interesting arguments will be discussed as a preliminary issue, but can be dealt with briefly, in any event.
The evidence before the Court
In the Father’s case, he relied on the following Affidavits:
·Affidavit of Mr Needham, sworn 17 April 2015;
·Affidavit of Ms J, sworn 27 January 2015; and
·Affidavit of Ms S, sworn 27 January 2015.
Oral evidence was given by the Father, his sister, and his mother. Each were cross-examined.
In the Mother’s case, she relied on the following Affidavits:
·Affidavit of Ms Jamieson, sworn 1 September 2014;
·Affidavit of Ms Jamieson, sworn 1 October 2014;
·Affidavit of Ms Jamieson, sworn 23 January 2015;
·Affidavit of Ms K Jamieson, sworn 29 August 2014;
·Affidavit of Ms K Jamieson, sworn 19 January 2015;
·Affidavit of Ms R, sworn 17 October 2014;
·Affidavit of Ms W, sworn 17 January 2015;
·Affidavit of Ms B, sworn 19 January 2015;
·Affidavit of Ms F, sworn 22 January 2015; and
·Affidavit of Ms C, sworn 21 January 2015.
Oral evidence was given by the Mother, Maternal Grandmother, Ms E, Ms R and Ms F. Any other deponents of Affidavits filed in the Mother’s case, were not required for cross‑examination.
In the Maternal Grandmother’s case, she relied on the same Affidavits as the Mother. She was cross‑examined.
In the Independent Children's Lawyer’s case, reliance was placed on the three reports prepared by Dr A dated 10 December 2012, 13 January 2014, and 19 December 2014.
At the hearing, the Father was represented by Mr Jackson of Counsel, the Mother and Maternal Grandmother by Mr Bolger of Counsel, and the Independent Children's Lawyer by Mr Ford of Counsel.
Outline of these Reasons for Judgment
After setting out a statement of the applicable law, the Court will deal with the preliminary issues adverted to above, and then consider the evidence of Dr A. Dr A’s evidence will be dealt with first, simply because hers is the only objective and independent expert evidence in this case. Her evidence is extensive (three reports), as was the cross-examination of Dr A. Even if the Court does not accept all of Dr A’s evidence, that does not detract in any way from the special characteristics that her evidence brings – independence, objectivity and expertise.
An incident occurred on Christmas Day 2014. It is a significant event and will receive specific consideration in these reasons.
The remaining evidence of the parents, maternal grandmother, and all the remaining witnesses will then be discussed by reference to the relevant considerations that are set out in s.60CC of the Family Law Act 1975 (hereafter referred to as ‘the Act’). This is a useful framework with which to arrange, and then assess, the relevant evidence.
In conclusion the Court will then have regard to the remaining provisions of the Act in assessing what Orders are in the best interests of the children.
The applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part 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.
(2) 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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, 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 for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s. 65DAA which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) 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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) 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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Preliminary issues
The written submissions made by Counsel on the Rice & Asplund issue were very helpful. However, apart from the submissions filed on behalf of the Mother and Second Respondent Maternal Grandmother, the Court believes that Counsel have missed an important point. That is, that the Maternal Grandmother is now a party to these proceedings – a matter which was not opposed. That development, in itself, is a change of circumstance that warrants reconsidering what Orders are in the best interests of the children.
Even if that were not the case, however, the dramatic events of 25 December 2014, which will be discussed in detail below, also marks a significant exacerbation of the existing conflict that pushes this case into the changed circumstance category. Indeed, it must be remembered that the events of 25 December 2014 were so significant that even the Father did not oppose an Order that his time and communication with the children be suspended. Indeed, that act in itself is probably enough to constitute a changed circumstance.
The second preliminary issue raised is whether the Mother, who did not cavil with the proposition that she disobeyed the Consent Orders made 7 July 2014, ought to be given the opportunity to agitate any Orders in relation to the children until she has purged her contempt. Counsel referred to authorities including Young v Jackman (1986) 7 NSWLR 97 and Watson & Watson [2013] FamCAFC 25. All of the authorities referred to by Counsel confirm that this is a matter for the Court’s discretion. The Court declines to exercise its discretion in a manner that would prevent the Mother from agitating issues pertaining to the boys, especially in circumstances where the Court has already decided that the principle in Rice & Asplund does not so prevent her.
The Court is concerned about a number of matters in this regard. Firstly, the principles cited in all of the case law referred to by Counsel could not possibly be interpreted in a way as to fetter this Court’s statutory jurisdiction under Part VII of the Act to make Orders in the best interests of the children. Secondly, the intervention of another party to these proceedings – the Maternal Grandmother – is an indicator that the cause of action is no longer the same one. Thirdly, the Mother’s actions in breaching the Orders of 7 July 2014, indeed blatantly so, have come under the close scrutiny of the Court during extensive cross‑examination.
Her accountability for those actions will be the subject of judicial comment. Adverse findings may well be made. Those adverse findings may, or may not, inform the Orders that the Court ultimately makes in relation to the children. For all of those reasons the Court concludes that this interesting principle has no application to the facts of this case.
The focus remains on making Orders that are in the best interests of the children in the very difficult circumstances in which they presently find themselves.
The evidence of Dr A.
At the time of Dr A’s first Report dated 8 December 2012, the children were living with the Mother and Maternal Grandparents, and spending time with their father on Sundays and Friday afternoons. At the time, his application before the Court was for the children to live with each parent on an alternate week basis, whereas the Mother was proposing that the children live with her and spend time with the Father each alternate Sunday from 9:00am until 4:00pm, and on Father’s Day.
The Report records the Mother’s concerns at the time about safety issues associated with the Father’s house, and concerns she had about his parenting capacity. She was concerned, in particular, about the Father’s capacity to meet the children’s emotional needs, and alleged he did not behave in a child focused way. She asserted that he demonstrated little interest in the children’s lives, other than the time they spend with each other. She said that she had sought to encourage additional time between the Father and children but the Father declined.
The Maternal Grandmother was also interviewed. The information she provided seemed consistent with that which the Mother reported. It is interesting to note that at that time (the interviews were in December 2012) the Maternal Grandmother was already considering what was described as “a backup plan for the worst case scenario” (paragraph 33). That is, if the Mother were to die in the next five years. At the time of the interviews, the Mother was in chemotherapy.
The Father explained to the Family Consultant that, particularly having regard to the Mother’s ill‑health, he wanted a greater involvement in the children’s lives. Whilst he was seeking equal time, he proffered as an alternative each alternate weekend from Friday to Monday. He expressed concerns about the Mother and Maternal Grandmother excluding him from decision‑making about the children, as well as information about their lives. He was aware of the possibility that the Mother would die from her illness, and whilst he hoped that that would not occur as that would be devastating for the children, his proposal was that the children would come into his care.
The Father reported to Dr A his firm belief that both the Mother and Maternal Grandparents were “resolutely malevolent towards him: their motivation is to discredit him as the father and to exclude him from the children’s lives.” (paragraph 45) He was convinced in 2012 (indeed, as he continues to be convinced in 2015) that both the Mother and the Maternal Grandmother had a “master plan to destroy me, get the kids, remove my house and upset me so I would go around there angry, then they would call the police and get an AVO”. (paragraph 45) Indeed, the Court interposes, the theme which he articulates to Dr A in 2012 is a theme that permeates his written final submissions to the Court.
Dr A observed the children’s interaction with their mother and grandmother, describing the relationships to be comfortable and relaxed, warm and harmonious.
At paragraph 59 of her Report Dr A records her observations:
Mr Needham waited in the playroom while I fetched the children from the waiting area. Y ran immediately to greet him in a most affectionate manner with hugs and kisses. X was friendly, but not as demonstrative. Throughout the observed interaction there seemed to be a warm, relaxed relationship between the boys and their father.
Dr A’s evaluation commences at paragraph 62. At paragraph 63 she expressed this opinion:
While I found the mother’s accounts plausible and consistent with the interpretation that the father has behaved in ways that are more self‑centred than child‑focused, and has sometimes made judgments about the children’s care which were not entirely wise, there is reason to doubt the account the mother and maternal grandmother gave of their benign and collaborative stance towards Mr Needham as a co‑parent.
Dr A then gave examples. At paragraph 64 she formed the view that the boys seem to love their father and want to spend more time with him. Despite this, the Father’s suggestion of substantially shared care was inappropriate. At paragraph 67, she expressed concern about the cooperation between the Father, Mother, and Maternal Grandparents, referring to it as:
… too poor to buffer the children against the acrimony between the adults or to effectively manage the children’s separation anxiety associated with their mother’s serious illness.
There was no question that, for the boys, their mother was their primary caregiver and their mother and maternal grandparents were their secure base in the world.
At paragraph 70, Dr A states:
Therefore, whilst it is important for X and Y to continue to see their father weekly, a progress to alternate weekend stays should only occur under professional guidance.
She refers to organisations who could provide this service. At paragraph 71, she made the observation that the mother and paternal grandparents:
… would need guidance about not intruding unnecessarily on the father’s time with his boys. Their motives appear to be child‑protective, but misguided.
The Court interposes that much of what Dr A was prescient of things to come. Ultimately, she recommended that the boys continue to see their father for daytime weekend visits which it may be possible to extend to alternate weekends pending a favourable report on the father’s home conditions. She encouraged the Father to participate more in the children’s normal weekly routine, and the Mother to provide the Father with more information about the children. Finally, she suggested that the arrangements for the children to spend time with their father be reviewed in mid‑2013 in light of the Mother’s health status, and to see whether the parents had progressed in improving their parental teamwork.
Dr A’s second Report is dated 13 January 2014. It is described as an updated Family Report, and was based on interviews held on 10 January 2014. By the time of her interviews, the children’s time with their father had progressed to each Sunday daytime, as well as each Monday, Wednesday and Friday afternoons. The Father continued to press for alternate week‑about time, albeit in the longer term, but was proposing for the children to commence overnight time with him on weekends, with a progression to school holidays. The Mother’s proposal evolved to include two consecutive daytime visits with the Father over the weekend, but she remained opposed to overnight stays.
The parents had been participating in mediation, and that appears to have contributed to the changes in the parenting arrangements. The Mother continued to have concerns about the Father’s capacity, his lack of child focus, and disinterest in aspects of the children’s lives such as their progress at school. She was concerned about issues at changeover. Indeed, Dr A reported this at paragraph 14 as:
The acrimony, tension and unwanted intrusions into her home environment which she reported now happened four days each week.
When Dr A suggested that perhaps this could be avoided by changeovers at school, she reports that the mother:
… explained that the children (particularly X) objected to that plan and she considers school to be their “safe haven” which should not be violated. (paragraph 14)
The Court interposes that the Mother continued to have that belief by the time of the final hearing. The Maternal Grandmother continued to express concerns about the Father’s capacity to meet the children’s needs, including their physical needs. She referred to the Father as being insensitive, and having poor social judgment. She was concerned that the father “does not know how to bond empathically with his children.” (paragraph 16)
The Maternal Grandmother reported that Y had recently begun soiling himself before and after visits with his father. Ultimately, however, the Maternal Grandmother was reported as nonetheless considering that the children might derive benefit from an ongoing relationship with their father, a position she felt bound to support.
The Father reported in interview that he was simply asking for longer continuous blocks of time with his children, including overnights. He described the Mother and Maternal Grandmother’s parenting of the boys as “helicopter parents”, attempting to control every aspect of their interaction with them, interrogating them after visits, etc. Interposing here, it is clear that the Father maintained that view at the final hearing.
The Father repudiated any suggestions about safety issues in his home, or lack of parenting capacity on his part. He agreed that he had called the police to enforce Court Orders on occasions when the children were not supplied. At paragraph 21 Dr A records:
He has since decided this is futile. He thinks it is wiser to accept X’s refusals to come with him calmly, even though he contends that the mother should value the father‑child relationship enough to encourage X to cease rival activities. (paragraph 21)
The Court interposes that if the Father did believe it was futile to call the police, that belief was not borne out by subsequent actions. Dr A raised with him the prospect of making changeover at school, so that the Mother was not always mediating the boys’ relationship with their father. He expressed a preference for this, but noted the Mother’s objection. At paragraph 22 he articulated the concern that the mother: “…is making every effort to alienate him from his children.”
He thought that the mother had been more successful with X than with Y, but he was clearly concerned about Y. Dr A made some important observations at paragraph 23:
Rather than consider his children passive victims of their mother’s machinations I asked Mr Needham to imagine why X and Y might be actively exercising choices in order to deal with the stress of moving between their parents at handovers. It would be distressing to X to leave his mother to visit his father knowing that she was unhappy about the arrangement. X worries about his mother and would also worry about her worrying about him. The children’s separation anxiety about leaving their mother would have been compounded by fearful, enforced separations caused by her illness and medical treatment.
The context of paragraph 23 has suggested this is what she told the Father at the time of the report interviews, but in any event paragraph 23 speaks for itself. Dr A was, in effect, inviting the father to try to consider the situation from the perspective of the children. The subsequent actions of the father, as demonstrated in the evidence, confirms that he has struggled to do so. In any event, as paragraph 24 indicates, Dr A encouraged the father to consider each alternate weekend in order to reduce the frequent handovers, with the consequent stress. She records that at first the father resisted the idea of reduced time and a two week gap between meetings, but eventually indicated a willingness to consider the merits of a plan which might result in less stress for his sons, even though it meant less time with him.
In terms of the observed interactions, Dr A noticed that Y immediately went up to greet and embrace his father, but X declined, indeed not approaching his father at all, and not responding to his father’s salutations.
In interview with X, he categorically rejected the suggestion of changeovers from school, referring to his father as “embarrassing”. At paragraph 28, X is reported to have said:
He looks feral and he acts feral. He wears the same old clothes and he doesn’t shower. I’d be embarrassed if he said some random thing to my teachers or friends.
Dr A observed that his complaints were vague in the sense of not giving any convincing, specific examples of antisocial or harmful behaviour. She noted that he referred to his father as “Mr Needham”. X explained that he decides whether or not he spends time with his father, and only after he hears about the planned activities. When he asks to go home early because he does enjoy the activity, X was reported as describing his father’s response as: “He acts like a big baby – crying because I want to go home early – and then he goes back to parent mode.” X expressed quite firmly the desire for his father not to attend school or sporting events.
In Y’s interview with Dr A she observed him to be stressed by the interview process. When he eventually relaxed he expressed the view that seeing dad “is okay the way it is” but overnights would not be fun, that it would best for both boys to go together to their father’s house, together with their stepbrother Z.
Dr A’s evaluation commences at paragraph 32 of her Report. She continued to believe that the Mother was the children’s main attachment relationship. She expressed concern that their attachment security to her had already been undermined by threats associated with her serious illness: “So care must be taken not to inflame their separation anxiety intolerably.”
Whilst Y seemed to be affectionately bonded with his father, X was reported to be “strongly aligned with his mother”. And thus it was unsurprising that he resisted separation from her, and devalued his father.
Dr A was concerned about the numerous face to face handovers between the parents, and noted that with visits four days each week, it meant 16 transitions a fortnight. Dr A could understand why X was reluctant to spend time with his father, and expressed the concern that Y might follow suit. She believed that Y’s reported incontinence issues were likely to be related to the stress of transitions, rather than to any suggestion that he is being maltreated in his father’s care.
Dr A expressed some scepticism about the Mother’s continued concerns in relation to the children’s safety in their father’s care. She pointed to the obvious inconsistency between the Mother’s stated concerns, but the Orders that she sought.
Dr A felt that the boys could tolerate a separation from their mother and home base from Friday after school until Monday before school each fortnight. At paragraph 36 she expresses some concerns about the Father:
Although there is no evidence Mr Needham has maltreated his children, there seems good reason to query whether he is normally nurturant. His parental sensitivity seems below par and the mother claims he does not exercise due diligence. He may not be sufficiently empathic to ensure the children’s emotional comfort during weekend visits – especially if they find separation from their mother anxiety provoking (as it seems X does even on short visits). Mr Needham has not attended any of the recommended parenting courses.
From paragraph 37 of her report, Dr A deals specifically with the Father’s assertion about alienation. She acknowledged that the Mother, “seems to have some unrealistic expectations about scrutinising the father’s parenting for quality assurance.”
None of the matters observed, whilst perhaps being sub‑optimal parenting practices, were necessarily life‑threatening, especially given the frequency with which the children spend time with him. She observed that there are many children in happily intact parents who, like X, consider their parents embarrassing, foolish or insensitive – then added:
Such discontented children are not normally emboldened or empowered to dismiss these bumblers from their young lives, and the State would not normally intervene to do so either. (Paragraph 37)
At paragraph 36 she states:
Although she may not be deliberately setting out to alienate Mr Needham from his sons, Ms Jamieson finds him noxious as a person and inadequate as a parent. X is strongly aligned with his mother and appears to have taken it on himself to act as a champion for his mother’s standards. That X has been triangulated into the parental conflict and usurps parental privileges is evinced by his violations of the generational boundary (such as calling his father by his first name rather than his family role name). In the long term role reversed position in the family hierarchy could hinder X’s psychological individuation from his mother, keeping him a spousified child into adolescence or even adulthood.
Just pausing here, whilst Dr A describes X as closely aligned to his mother, she does not appear to either rule in, or rule out alienation. Indeed, she raises concerns about the potential nature of X’s relationship with his mother.
The reality, Dr A believed, is that the frequent, emotionally terse handovers were actively contributing to X rejecting contact with his father. Y “is deemed unlikely to persist in attending visits if X permanently declines.”(Paragraph 39)
Dr A believed that the father-son bond stood a better chance of surviving “albeit if only as gossamer threads” if the visits are longer but less frequent, and there are no face to face handovers between the parents. The Court observes that Dr A was saying to these parents that the metaphorical writing was on the wall – that their high conflict was having an impact on the children and that face to face handovers had to be changed. It is clear that by the time of the second report the boys’ relationship with their father had grown more tenuous. Dr A’s conclusions and recommendations commence at paragraph 41.
At that paragraph she states:
These antagonistic parents have not managed to establish and defend boundaries around their respective spheres of influence as separated co‑parents. Frequent, tense handovers are stressful to the children and likely to become so aversive over time that realistic estrangement from the father will result.
Thus, at this point, Dr A introduces for the first time the concept of realistic estrangement, i.e. that the loss of the children’s relationship with their father was justified in their minds because of his actions, or omissions. It is a somewhat curious opinion to express when, earlier in her report, Dr A appeared not to either rule in, or rule out, the possibility of alienation.
She strongly recommended reducing the frequency of visits, but increasing their length. She suggested every second weekend from Friday after school until Saturday at 5:00pm, eventually increasing to an arrangement from Friday after school to Monday before school. She would not recommend mid‑week visits. Face to face handovers between the parents were to be minimised. She did not rule out the possibility of progressing from weekend visits to holiday stays but:
Mr Needham should proceed under the professional guidance. He needs assistance to minimise the risk of realistic estrangement from both his sons.
Final Orders were made on 7 July 2014. It is hard to escape the conclusion that the Final Orders were shaped by Dr A’s recommendations.
Dr A’s third and final report is dated 22 December 2014, and was based on interviews held on Friday, 19 December 2014 with both parents, the children, and the Maternal Grandmother. Dr A records that she was aware of the Consent Order entered into between the parents, and that shortly thereafter the Mother had relocated to (omitted) with the children to live with the Maternal Grandmother. In relation to the relocation, Dr A recorded the Father’s assertion that the move occurred in the face of his opposition, and the Mother’s assertion that the matter was fully discussed with the Father, but that he did not raise strong opposition.
Dr A was aware of the Orders made 20 August 2014 requiring the children to return to the (omitted) and for the children to spend time with their father on alternate weekends and half the school holiday period.
At the time of interview Dr A noted that the Father’s current proposal for the Court was for the children to live with him, to have no contact with their mother for three months, and thereafter to spend time with her each alternate weekend. The Mother’s proposal was for sole parental responsibility, for the children to live with her in (omitted), and that any further arrangements for the Father to spend time with the children be dependent on psychological assessment of his parenting capacity.
In interview, the Mother repeated all of her concerns about the Father as previously reported. She raised a number of new issues about his care for the children. She raised serious issues about how Y was coping with the situation. The Mother expressed concern about how the children are psychologically harmed by exposure to adult conflict at handovers:
… all of which she attributes to the father’s aggressive insistence on his legal rights in the face of his son’s patent distress at being forced to accompany him.
The Mother could not describe any benefit to either child from having contact with their father. Indeed, she emphasised the emotional harm that they would suffer in his care.
In relation to the Mother’s explanation for her relocation to (omitted), Dr A described this in paragraph 15 as being “thin and vague”. She observed that while:
… no clear imperative to move emerged from her explanation, Ms Jamieson denies that she “fled” the (omitted) against the father’s wishes as he claims. She asserts that they discussed it at length, and that he did not adamantly oppose her plan.
At paragraph 27, Dr A observes:
Ms Jamieson emerges from her self-reports as either disingenuous or foolishly naïve. The planned move was hastened by a distressing incident which she called as a “big scene” caused by the father at the grandparents’ house … while Ms Jamieson’s decision to relocate could plausibly be interpreted as an ill‑considered act of desperation under conditions where she felt trapped and hounded by Mr Needham, I cannot be sure all her motivations were frankly disclosed.
In seeking to further understand the Mother’s contingency plans for contact and handovers she described the Mother’s thinking:
… about her son’s best interests is quite confused. She contends that exposure to parental conflict at handovers is psychologically abusive of the children, yet rejects the obvious remedy of handovers to and from school on the basis that the school is the boys’ “safe place”. (paragraph 16)
She did not appear to have carefully thought through how the concerns about changeover, and protecting the children from conflict, would be implemented if she were allowed to relocate to (omitted) on the basis that the children spend time with their father.
The Maternal Grandmother was interviewed. She too repeated all of her previously stated concerns about the Father. She made fresh complaints about the Father. By the time of the interviews, the Maternal Grandmother had joined the proceedings.
In interview with the Father, he expressed the belief that the Mother’s relocation to (omitted) was all about blocking his time with the children. He did indicate, however, that if the Mother remained in the (omitted) region, and facilitated his time with the boys, he would accept the current situation, otherwise he would insist on a change of residence, with no contact to the Mother for three months.
At paragraph 24, Dr A states:
He appeared to have no conception how intolerably anxiety provoking this maternal deprivation would be for two little boys who had passed through the valley of the shadow of death with their mother over the last few years. He minimised their likely adjustment difficulties, predicting they would quickly settle into the new residence and the separation from their mother.
He explained to Dr A that even if the Mother were allowed to relocate to (omitted) he would have to consider moving, rather than give up on his boys.
The Father agreed that handovers in person are unpleasant, but blamed the Mother and Maternal Grandmother for this. He agreed that he had shown X Court Orders. He continued to believe that it would be preferable to collect the children from school. He was trenchant in his belief that the Mother “is making every effort to alienate him from his children.”
Dr A’s impression of the father is set out at paragraph 27:
On this occasion Mr Needham seemed no more willing than he was in January 2014 to consider the merits of a plan which entails less stress for his sons if it means he gets less time with them. Overall, as on previous occasions, Mr Needham struck me as man entirely focused on his own entitlements and almost entirely lacking in accurate empathy for his sons. He did accurately predict that his children would treat him with hostility in the conjoint interview, which he attributed to the influence of the mother who would consider the boys had betrayed her if they showed any affection towards their father.
In observations neither child responded to their father’s greeting. Both boys expressed critical views in response to their father’s friendly overtures. Both told him they did not want to see him at Christmas. Both boys refused to give their father a farewell hug. The Father was observed to remain calm and express no anger. The Court interposes here – the obvious deterioration in the children’s relationship with their father, particularly that of Y, is recorded here.
X was quick to align himself with his mother’s goals, particularly as regards the move to (omitted). X said he would be quite happy never to see his father again. Both boys made complaints about spending time with their father, at the Paternal Grandmother’s home. X confirmed that the Father had shown him Court Orders and made him read them. X indicated that the Paternal Grandmother had blamed the Mother for all their problems. X continued to describe his father as “feral”.
At paragraph 32 Dr A states:
X expressed strong opposition to spending any part of Christmas Day with his father, saying it would ruin his Christmas. Y was less vehement, saying he would prefer to stay home and play with his Christmas presents than go to see Dad. When we were talking about neutral or pleasant topics (such as school, their friends and hopes for Christmas or their cool new haircuts) X was bright, cheery and animated. As soon as we resumed discussions regarding interactions with their father X started crying again. Silently. Big fat tears coursed down his cheeks as he sat motionless. He seemed locked in misery.
Paragraph 34 is another important paragraph:
X seemed very ready to express harshly critical views about his father. It is possible he had been primed. However, it is worth noting signs of his autonomy and his contingent responding. Alienated children (and children who have learnt lines prepared by a parent) often present with catch phrases of the parents ( like “fresh start” or “doesn’t behave like a father”) which echo the words of the parent with whom the child is aligned – as X did. In my experience, alienated children often seem to be on a mission to convey their message and may be hostile to the interview process and hard to engage on other topics. Alienated children also tend to favour righteous indignation over sorrow as the emotional key they sing in. They express disproportionate anger towards the rejected parent for specious or insufficient reasons. They show no compassion or remorse towards the rejected parent and no sorrow about the loss of connectedness.
At paragraph 35, Dr A continues:
None of this applied to X who was willing to engage with me and seemed flexibly emotionally responsive: in particular he responded with appreciative warmth or humour to comments which were either accurately empathic or playful. Although he seems to have resolutely hardened his heart towards his father, he can give valid reasons for his negative appraisals. I think it hurts X to feel so disillusioned about his father. He seems sad and disappointed that he cannot have the sort of relationship with his father he needs. His protectiveness towards his mother seems to be the governing variable of his emotional life.
Dr A’s evaluation commences from paragraph 38. Each of the relevant paragraphs will be reproduced, followed by some commentary.
Separating these anxious children from their mother would be cruel and unnecessary, and for the father even to suggest it is a serious failure in empathy. Ms Jamieson is the children’s primary attachment. The children’s assumptive world (= the taken-for-granted view that the universe is a safe, benevolent, predictable place) was shaken as a result of their mother’s serious illness and further undermined by exposure to ongoing hostility between their parents. Any further disruption to the attachment security with their mother would stress them intolerably. The father has never been their primary caregiver or their secure base in the world. If as a result of this litigation the children are to lose, even temporarily, a relationship with one parent it should be the non-preferred, less competent, nurturing parent – the father.
The Father eventually abandoned his proposal that the existing residential care arrangements be reversed. The Court accepts that, in effect, what Dr A is saying is that it is too late in the sense that merely proposing those Orders confirms Dr A’s concerns about his insight, or lack thereof. As it turns out, and having regard to all the evidence, the Court concludes that the Father’s action in proposing a reversal of the existing care arrangements was, in effect, punitive. He was clearly confident that he could establish to the Court’s satisfaction that the Mother was alienating the children against him. This is despite Dr A’s evidence on this point.
In the last sentence of paragraph 38 Dr A hints at a possible outcome in this case – that the children would lose their relationship with their father, as the non-preferred, less competent, less nurturant parent.
At the earlier assessments Y exhibited an affectionate bond with his father and was open to contact even after X had rejected contact. It was predicted that unless Mr Needham behaved with greater sensitivity Y would follow X’s example. I advised against face to face handovers which were stressful and unpleasant for the children and deemed likely to increase the risk of a permanent rupture of the father-son relationship. Both parents have continued to behave unwisely over handovers. According to the children, mother and grandmother the father has behaved coercively and insensitively at handovers. Due to a misguided sense of protectiveness the mother and maternal grandmother appear to have fanned the flames by trying to monitor the children’s reactions to handover instead of arranging for, or acquiescing to, handovers at school. The mother seems not to have realised that in some situations there are no good options – only bad options and worse options.
Dr A tragically predicted the possibility that Y would lose such relationship as he had with his father. Alas, this was demonstrated to be true by the time of the third report. The parents would not accept her advice against face to face handovers. This will need to be discussed in detail, during the course of these reasons. Little did Dr A know about the events that would take place just a few days after her report was released to the parents. The problems with the handovers reached an unfortunate climax on Christmas Day.
The Mother certainly does not escape criticism in this paragraph. Her closing words in many ways summarise the dilemma open to the Court – there are only bad options, and worse options.
As an outcome of previous assessments I queried aspects of the father’s parenting capacity noting that further investigations were required. Up to that time he had failed to follow recommendations for counselling and psycho-education. If the mother was convinced of his harmfulness to the children the most sensible course of action would have been for her to argue the case at Final Hearing instead of agreeing to unworkable Consent Orders. It is understandable that she may have found the ensuing situation distressing, but again she showed very poor judgement by moving to (omitted) without Court permission. Whether or not she is sincere in saying she assumed the father’s had acquiesced to her plan it is clear he did not explicitly agree to the relocation - and certainly not in writing.
The evidence confirms that the Father indeed did fail to follow up on Dr A’s recommendation to obtain professional assistance. Likewise, the Mother continued to send mixed messages about the dissonance between her stated concerns, but the Orders she proposed. To say that she showed “very poor judgment” by relocating to (omitted) is an understatement.
Paragraph 41 is an important paragraph. Here Dr A states:
Many women who have been in abusive relationships show confused thinking and make poor risk assessments for themselves and their children – choosing a course of action based on the desirability rather than the probability of outcomes. In other words their behaviour enacts the triumph of hope over experience. To that extent Ms Jamieson’s ill-advised behaviour is consistent with the relationship history she reports. Only a woman with diffuse identity and poor social judgement would have entered into then persisted with the relationship of marital injustice which she alleges she experienced with Mr Needham.
The problem with this paragraph is that the evidence the Mother led at the hearing did not establish to the Court’s satisfaction that she had been in an abusive relationship with the Father. It was clearly a relationship marked by high levels of conflict, mistrust, and non‑existent communication. It was in many respects a dysfunctional, toxic relationship, particularly after separation. To suggest, however, that is was an abusive relationship is inconsistent with the evidence before the Court.
Dr A’s findings are unequivocally consistent with the evidence before the Court. Neither parent is free from blame about the terrible situation they have placed their children.
At paragraph 43 of her report, Dr A addresses what is probably the main and most difficult issue before the Court. She states:
X and Y are being psychologically harmed by exposure to adult conflict. Neither parent has shown appropriate protectiveness in this regard. If the Court were to determine that the children should spend time with their father in the future then handovers should be to and from the school or to and from a Children’s Contact Centre - forever. It is toxic for the children to be in the presence of both their father and mother (or grandmother).
The Court agrees with Dr A’s assessment that it is now impossible for X to have a meaningful relationship with his father. The reasons for this are complex, but ultimately do not change this fact. The Court agrees that, based on all the evidence, there is still hope in relation to Y, but whether a relationship between Y and his father can be sustained depends as much on the Father, as on Y.
Given this terrible prognosis for the children – that their parents and grandmother are unlikely to change in terms of the matters before the Court – the Court has to consider how it can protect the children from such dysfunction. Keeping the three protagonists in the same geographical space is not the answer. Keeping them in the (omitted) changes nothing for these children. Merely amending the changeover provisions changes nothing for these boys. The Court assesses the situation to be so dire for the boys, and their need to be protected from the parental conflict as being so great, that a physical distance needs to be established between the Father, and the children and the Mother and Grandmother.
It bears once again revisiting some of the arguments raised in this case. Even if the children were in fact alienated from their father, as a result of the actions of their mother and maternal grandmother, why does that necessarily lead to a particular result, being the one proposed by the Father, even at the time when he proposed that the children live with him? Decisions made about children are not based on a formula. Thus, even if there was a finding of alienation, it does not result in any predetermined outcome, let alone that the children live with the alienated parent.
Moreover, even if the children were to have been realistically estranged by their father, that does not automatically result in an outcome in which they are not to have a relationship with their father.
Of concern was a similar formulaic submission made on behalf of the Independent Children’s Lawyer, i.e. that unless there was a finding of unacceptable risk of abuse, the Court could order no time.
All of these rather formulaic submissions, reflected in one way or another in the cases presented before the Court, are simply misplaced. The submissions are inconsistent with the statutory scheme set out in Part VII of the Act. There are no formulas to be applied in working out what is in the best interests of the children. The Court looks at all of the facts, considers all of the evidence, has regard to a non-exclusive list of statutory factors, and ultimately makes a decision that it considers to be in the best interests of these children.
In many cases, such as this one, there is no ideal outcome for these children. There is a bad alternative, and a worse alternative.
The greatest risk to these children, having regard to all the evidence, is continued exposure to parental conflict. Their greatest need is to be protected from this. On the facts of this case, this need ranks in priority to many other needs.
Maturity, sex, lifestyle and background of children and parents
Any observations in this regard have been considered under other headings.
Family violence
In s.4AB(1) of the Act, family violence means:
… violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful
It is quite possible that the children’s exposure to parental conflict has caused them to be fearful. In any event, the fiasco on Christmas Day 2014 is a clear example of family violence as defined in s.4AB. The Father was charged and convicted of offences. An AVO that was made in favour of the Maternal Grandmother, against the Father. There is clear evidence about the boys being upset, and fearful, as a result of what happened.
Order least likely to lead to further proceedings
This litigation needs to come to an end, but in a manner which minimises the prospect of future litigation. Dr A seemed to be of the view that this was best achieved by a no contact or communication order. The highly problematic history of this case leads this Court to conclude that one of the most pressing priorities for an order is to shield the children from further parental conflict, which is so often manifested by parental litigation. Apart from an appeal, the risk of further proceedings is in fact mitigated by a no contact and no communication order. Any arrangement, legal or otherwise, that maintains a connection between the parents, is an opportunity for conflict and litigation. If an order for no contact and no communication is otherwise in the best interests of the boys, then it is also the order that best addresses this additional consideration.
Parental responsibility
The statutory presumption set out in s.61DA(1) does not apply as the Court has found that the Father has perpetrated family violence, specifically on Christmas Day 2014: s.61DA(2). Moreover, the presumption is rebutted as the Court is satisfied that it is not in the children’s best interests: s.61DA(4). To set out the reasons for this would be to merely repeat the evidence that has been set out above. The Mother and Maternal Grandmother’s reasons for seeking equal shared parental responsibility as between themselves are persuasive. The Court will make this order.
As the presumption does not apply as between the parents, the Court is not required to consider either equal time or substantial and significant time. Even if it were considered, however, on the evidence before it the Court would consider that neither was reasonably practicable, or in the children’s best interests.
Order in the best interests of the children
It is important to explain to the parents in this case that in determining what is in the best interests of the children the Court must not let itself be influenced by matters pertaining to the conduct of the adults in this case. If the Court’s decision, for example, were allowed to be influenced by any notion of offence in relation to the behaviour of the adults in this case, the result may well have been a preference for the children to be removed from this family entirely. The behaviour of all of the adults in this case has been appalling at times, and to differing degrees. However, the proper focus of the Court is to make a decision that is in the best interests of the children in the future, having regard to past events. These past events are now set in stone. Where the adults in this case have different perceptions about those past events, it has been the Court’s role to adjudicate on what happened in the past. These findings, absent a successful appeal, are also set in stone. The adults in this case nonetheless carved their own histories. Their past is littered with monuments of dysfunction. History cannot be allowed to repeat itself for these boys. The only order that can achieve this is a no contact and no communication order, with the boys being permitted to relocate with their mother and grandmother. It is their only hope for a peaceful future. If the Father perceives this to be a judicial endorsement of the Mother and Maternal Grandmother’s bad conduct, that is his right, as misconceived as it is. It ignores the nature of the present exercise – to determine what is in the boys’ best interests – as well as conveniently glossing over his own culpability in this very sad situation.
The Court has considered long and hard the possibility of making an order for Y to spend time with his father during school holidays and mid-term. The obstacles, however, are insurmountable. The Father’s perseverance is an unknown. The Mother and Maternal Grandmother’s commitment to such an arrangement is questionable. The subtle corrosive impact of the sibling relationship is inevitable. The issues of practical difficulty and expense are, for these parents, insurmountable because of their feelings towards each other. Whatever past intentions they had in this regard were shattered by subsequent events. The same issues arise in relation to communication. To make any order for contact or communication is to set up these parents for failure, and to expose Y to unnecessary stress. On balance, it is best to sever the boys’ relationship with their father completely, and leave it for them to resume it at their own pace and time.
The relentless pressure of work in this Registry has meant that it was not possible to make Orders and deliver reasons within a timeframe that might enable the Mother to act on the reasons, and relocate within a timeframe that minimises disruption to the children’s schooling. Whilst the Court believes that it would be best to postpone any relocation to the end of the 2015 school year, no order will be made to this effect. The Mother and Maternal Grandmother have the benefit for an order for sole parental responsibility. The decision as to timing will be theirs.
I certify that the preceding two hundred and seventy-eight (278) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 21 October 2015
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Family Law
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