Pace and Pace

FEDERAL CIRCUIT COURT OF AUSTRALIA

PACE & PACE

[2015] FCCA 3100

Catchwords:
FAMILY LAW – Parenting – assessment of competing proposals – whether there was an unacceptable risk of harm – wishes of the children and the weight to be given to those wishes.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA(1), 61DA(2), 61DA(3), 61DA(4), 61DA(5), 62G, 65DAA(1), 65DAA(2)

Maldera & Orbel [2014] FamCAFC 135

Wacando v The Commonwealth (1981) 148 CLR 1

Applicant:

MR PACE

Respondent:

MS PACE

File Number:

BRC 859 of 2013

Judgment of:

Judge Jarrett

Hearing dates:

1 & 2 September 2014

Date of Last Submission:

17 October 2014

Delivered at:

Brisbane

Delivered on:

24 November 2015

REPRESENTATION

Counsel for the Applicant:

Mr Selfridge

Solicitors for the Applicant:

McNamara and Associates

Counsel for the Respondent:

Mr Linklater-Steele

Solicitors for the Respondent:

Brisbane Family Law Centre

ORDERS

The respondent have sole parental responsibility for all decisions concerning major long term issues to be made in relation to the children, X born on (omitted) 2000, and Y born on (omitted) 2003 (“the children”).
The respondent shall, when exercising sole parental responsibility for the children as provided for in order 1 hereof, notify the applicant by way of email of the details of the decision to be made and shall thereafter consider the applicant’s view in relation to that issue, if any, prior to making the decision in question.
Except in the case of an emergency, the respondent shall provide to the applicant details as described in order 2 no less than twenty-eight (28) days prior to the making of any such decision and the applicant shall provide any view regarding the decision to be made within fourteen (14) days of receiving the details from the respondent.
The children live with the respondent.
The children not spend any time with the applicant save and except for when the children express a wish to do so and at any such time the respondent shall forthwith facilitate such communication or time between the children and the applicant.
The respondent shall keep the applicant informed by way of email once every month as to the children’s progress and development.
The applicant shall provide to the respondent’s solicitor within seven days of the date of these orders, an email address for the purpose of order 6 above.
The respondent shall, within seven days of the date of these orders, notify and sign all documents and do all things necessary to authorise any school the children attend to send to the applicant copies of all school reports and school photographs relating to the children at the expense of the applicant.
The children’s passports be released by the Registry Manager within fourteen (14) days of the date of these orders and be held by the mother.
In the event the mother wishes to travel overseas with the children, the mother shall provide the father with fifty-six (56) days written notice of the intended travel, a detailed itinerary including flight details and numbers and the contact details at which the mother and children can be contacted during any overseas travel.
The respondent shall present the children to the counselling section of this Court Child Dispute Services on Level 3 for the purposes of having these orders and reasons explained to the children by Ms E Family Consultant (or another Family Consultant as directed by the Manager Child Dispute Services) on 30 November 2015 at 4:00pm.
Within 2 months of the date of these orders the parents engage with a person agreed between them, and failing agreement, Mr T (if he will accept such an appointment) for the purposes of providing therapeutic counselling to the parties in accordance with the reasons for judgment delivered on 24 November, 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 859 of 2013

MR PACE

Applicant

And

MS PACE

Respondent

REASONS FOR JUDGMENT

X was born on (omitted), 2000. She is currently 14 years old. Y was born on (omitted), 2003 and is currently 12 years old. Their parents, Mr Pace and Ms Pace, are locked in a bitter dispute about the parenting arrangements for them. Because they cannot agree, it falls to the Court to decide on the arrangements that are in the best interests of both children.
Originally, the proceedings related to both parenting and property issues, but at the commencement of the trial the parties indicated that they had resolved the property adjustment proceedings. I have made orders for property adjustment with the consent of the parties.
The parties seek parenting orders on very different terms. Mr Pace seeks orders for equal shared parental responsibility and for the children to spend alternate weekend time with him. Ms Pace seeks orders for sole parental responsibility and for the children to spend no time with their father, except in accordance with their wishes.
Both children are highly resistant to spending any time with their father. They have spent little time with him since separation in 2012. Attempts to re-establish a consistent pattern of time between the children and Mr Pace have been a failure. The reasons for that failure are contentious. Mr Pace contends that the children do not wish to spend any time with him because they have been alienated from him by Ms Pace. Ms Pace contends that the children are resistant to spending time with Mr Pace because of their own experiences with him and that they are genuinely frightened of him.
There is no dispute in the proceedings that the views expressed by the children are views that are genuinely held by them. Their resistance to time with Mr Pace is real. It is persistent. And, attempts to enforce time between Mr Pace and the children have been debilitating for the children.
There have been attempts in the past to engage with a clinical psychologist to attempt to re-establish the relationship between the children and Mr Pace. Those attempts have failed. That clinical psychologist, Mr T, gave evidence in these proceedings. Ultimately, it was Mr T’s view that very little could be done to re-establish the relationship between the children and Mr Pace for so long as the children remained resistant to spending time with him.
In those circumstances, the real issue at the heart of these proceedings is how the Court might fashion orders which re-establishes and then maintains relationships between the children and Mr Pace.
Mr Pace’s solution is for the Court to make an order for the children to spend increasing amounts of time with him over the course of a six-week period so as to transition the children into spending alternate weekend time with him. He was alive to the possibility that the children would not spend time with him in accordance with any order, but he thought that if there was an order in place, the time would eventually occur. His confidence about that is difficult to understand given what has occurred in the past. In any event, he agreed that the children should not be forced to spend time with him. To his credit, he has not insisted on that in the past.
Ms Pace could offer no solutions apart from suggesting that “the children need a break and allowed to be children”. The difficulty with her plea, however, is that the children have not spent any significant time at all with their father and so in that sense have had the “break” of which Ms Pace speaks. If they have not been allowed “to be children”, that is something that has happened whilst the children have been in her sole care. She primarily seeks orders for sole parental responsibility for the children (qualified by the requirements that she keep Mr Pace informed of the long-term decisions she intends to make and that she considers his views before making the decisions), for the children to live with her and for the children to spend no time with their father unless they show a willingness to spend time with him. She also seeks some other orders relating to certain specific issues, not limited to passports and overseas travel.
Mr T could offer no solutions either. His evidence was that to force the children to spend time with Mr Pace in the circumstances that he knew them to be, would be detrimental to the children. He suggested that there might be some hope that those relationships could be re-established if the issues between Mr and Ms Pace were the subject of some judicial determinations.
Because Mr T placed emphasis upon the Court making some judicial determinations about the allegations of violence raised by Ms Pace in the proceedings, it was important for the parties to identify those allegations with some particularity and to address them in a meaningful way. However, neither did.
At the conclusion of the trial I reminded the parties that they had specifically asked me to list the application for hearing so that findings of fact could be made as Mr T had suggested. I asked counsel for Ms Pace to articulate the findings of fact that he wanted me to make. He was unable to articulate them except in a generalised way. He suggested that I should find that:
There has been a consistent pattern of domestic violence that began in 2008 which is supported by the contemporaneous records of the mother in terms of her seeking out support and assistance. Your Honour would find that the specific instances that she alleges in the material such as the coffee cup incident, if I can call it that, the incident in 2001 when she was threatened on the way home, occurred in the manner in which she said. Those are the findings of fact your Honour would make.
In response, I said:
… The first thing that you said was not a finding of fact, it was a conclusion. The findings of fact … that on this date… ‘That on the thirty-first of November 2014 the father punched the mother in the face’. That is a finding of fact … So I am wondering what findings of fact I am asked to make. I am not about to trawl through affidavits and, look at every sentence and see whether that contains an allegation of fact, because a lot of it doesn’t and then decide whether I ought to make a finding about that. In fact, I think what I should do is ask that the findings … that you present, both parties present the findings that that they contend for in writing.
Both parties, by their counsel, agreed with that course. Both parties subsequently filed written submissions.
Whilst the written submissions filed for Ms Pace eventually set out the findings of fact that she wished to have made, the written submissions impermissibly rehearsed her arguments at trial. They misapprehended the purpose of seeking the parties to properly define the issues of fact for determination by the Court. Ms Pace’s written submissions are premised on the assumption that the process recommended by Mr T would in some way, or somehow, replace the task to be undertaken by the Court pursuant to Part VII of the Family Law Act 1975. That is not their purpose. Findings of fact, especially about matters such as family violence need to be made before the process laid out in Part VII of the Family Law Act can be undertaken. Unfortunately, many litigants in this Court, and the parties in this case are no exception, approach the process under Part VII of the Family Law Act as one which can be undertaken on the basis of allegations of a very generalised nature without evidence of (and often even identification of) the underlying facts to support those generalised allegations.
Mr Pace filed his written submissions in response to those filed by Ms Pace. Unfortunately, his written submissions also rehearse the arguments made by him at trial (by his counsel). The submissions also refer to material that is not in evidence before me. I have ignored those references.
Ms Pace filed written submissions in reply although those written submissions did not address the issues of fact that she said needed to be decided by the Court.
Leaving aside the questions of fact that need determination, having regard to the submissions of the parties and analysed in terms of s.60CC of the Family Law Act, it seems to me that the significant issues in these proceedings are:
a)whether the children are at an unacceptable risk of psychological or emotional harm by reason of being exposed or subject to emotional abuse by the father;
b)the wishes of the children and the weight to be given to those wishes;
c)the capacity of Ms Pace to meet the emotional needs of the children by ensuring that they have a meaningful relationship with their father.

Background

Mr Pace was born on (omitted) 1968 and is now 46 years old. Ms Pace, was born on (omitted) 1970 and is now 45 years old. They commenced cohabitation in 1997, were married on (omitted) 1999 and separated finally on or around 19 May, 2012. X and Y are their only children.
X and Y have spent very little time with Mr Pace since the parties separated. X last spent some brief time with him on 25 September, 2012 and Y last spent some brief time with him on 6 October, 2012. There have been attempts for Mr Pace to spend supervised time with the children at a contact centre, but all of those attempts have failed.
Mr Pace filed these proceedings on 11 February, 2013. He sought orders that the parties have equal shared parental responsibility for the children and that they spend time with him each weekend. Ms Pace filed her response on 5 April, 2013 seeking parenting orders in line with those that she now seeks.
The application first came before me on 8 April, 2013 and I made orders for the preparation of a family report. On 29 April, 2013 Mr Pace filed an amended initiating application seeking parenting orders in line with those that he now seeks – namely, alternate weekend time.
A family report, prepared by Ms J, was issued on 13 May, 2013 and on 15 May, 2013 the matter returned to court. I made consent orders for:
a)the parties to have equal shared parental responsibility for the children;
b)for the children to attend a counsellor or psychologist;
c)for Mr Pace to undertake an anger management program;
d)for the parties to attend upon clinical psychologists; and
e)for the children to communicate with Mr Pace by telephone.
On 31 July, 2013 Ms Pace filed an amended response seeking orders that the consent orders made on 15 May, 2013 be varied so that she have sole parental responsibility for the children, that they live with her and only spend time with Mr Pace by telephone.
In or around August or September of 2013 Ms Pace moved the children from the former matrimonial home to a domestic violence refuge. That is despite an order for the parents to have equal shared parental responsibility for the children. Despite the application being before the Court on 12 August, 2013, Ms Pace did not inform the Court that she had moved her residence and that of the children.
Mr Pace subsequently, on 10 October, 2013 brought an application for contravention on the basis that Ms Pace contravened the order made on 15 May, 2013 for the parties to have equal shared parental responsibility.
On 5 November, 2013 Ms Pace filed an amended response seeking another order for sole parental responsibility.
On 11 November, 2013 I found Ms Pace to have contravened the 15 May, 2013 orders and made orders for her to be placed on a twelve-month good behaviour bond and for her to pay the father’s costs in connection with the contravention application.
On 6 December, 2013 Ms Pace filed an appeal against the orders that I had made on the contravention application. The appeal was heard on 9 April, 2013 and on 11 July, 2014 it was dismissed with an order that Ms Pace pay Mr Pace’s costs in connection with the appeal.
On 24 February, 2014 the matter came before me again and I made orders for Mr T, to provide a report with respect to his counselling sessions with the children.
On 24 March, 2014 the matter came before me and I made orders for Ms Pace to pay the costs owing to Mr T, for the parties to attend mediation, and for Ms Pace to give Mr Pace certain family photos.
On 12 May 2014 I set the matter down for trial and made orders for the children to spend supervised time with Mr Pace at a contact centre.

Parenting issues

Proceedings concerning parenting issues are conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles that underlie those objects. When determining the outcome of a particular case, the best interests of the child or children the subject of the application is the paramount consideration: s.60CA. What is in the best interests of children is worked out according to the matters raised for consideration by s.60CC of the Act.
Section 61DA(1) requires the Court to presume that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the major long-term decisions affecting their life. However, ss.61DA(2) and (4) act as mechanisms whereby the presumption may not apply if the Court believes “on reasonable grounds” that one of the parents of the child has engaged in abuse of the child (or another member child of the parent’s family) or family violence (s.61DA(2)), or if the Court considers that it would not be in the child’s best interests for the presumption to apply (s.61DA(4)).
If the Court makes an order for equal shared parental responsibility the Court is required to consider whether it is in the child’s best interests, and whether it is reasonably practicable, for an order to be made that the child spend equal time with both parents, in accordance with section 65DAA(1). If it is, the Court should consider making the order for equal time. If it is not, the Court is required to consider whether it is in the child’s best interests, and whether it is reasonable practicable, for an order to be made that the child spend substantial and significant time with each of the parents, in accordance with section 65DAA(2).
In Maldera & Orbel [2014] FamCAFC 135 the Full Court of the Family Court of Australia dealt with the role played by s.60B of the Act in the determination of parenting orders. After discussing Wacando v The Commonwealth (1981) 148 CLR 1 the Full Court said:
76. ….Thus, we do not agree that in deciding a parenting case it was necessary to discuss the significance and weight of relevant s 60B factors or that where the outcome of s 60CC deliberations did not enable the court to determine a parenting order, s 60B may be decisive.
77. Section 60B has been significantly amended including by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) which inserted at the commencement of s 60B the words “The objects of this Part are to ensure that the best interests of children are met by…” These words do no more than reinforce the relationship between s 60B and s 60CC and put beyond doubt that in relation to how a court determines what is in a particular child’s best interests, the facultative provisions are ss 60CA and 60CC and (where it applies) s 65AA. These words do not operate so as to elevate the role of s 60B beyond that envisaged by Wacando. The same must be said about the court’s ability to take into account “any other fact or circumstance” that the court thinks is relevant (s 60CC(3)(m)). Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.

Section 60CC prescribes the matters that need to be taken into account when determining what orders are in a child’s best interests. It comprises a list of matters that must be considered to the extent that each is relevant to the particular case. Section 60B is important as it provides the context within which the relevant s.60CC factors are to be examined and ultimately weighed.

Consideration

It is not in issue that the children will derive a benefit from a meaningful relationship with Ms Pace. What is in issue is whether they will derive a benefit from a meaningful relationship with Mr Pace. The evidence of the experts is that these children will derive a benefit from a meaningful relationship with each of their parents.
Although Ms Pace said in evidence that she thought that the children would derive a benefit from a meaningful relationship with Mr Pace, I doubt that she genuinely believes that. I suspect that she was simply agreeing with the proposition because it was expected of her. Despite having only recently sworn her trial affidavit, Ms Pace was unable to remember whether she had said anything within her affidavit that was positive about Mr Pace. She had not. She was, in my estimation, being deliberately coy about that.
When asked about the positive things that Mr Pace had to offer the children, the best that she could do was to suggest that he liked the outdoors and that he was handy around the house. She was unable to identify anything else either in her oral evidence or in her written evidence that could be seen as a benefit that might flow to the children from a meaningful relationship with their father.
I am satisfied that the children will derive a benefit from a meaningful relationship with Mr Pace if they have such a relationship.
Some of the more significant factual issues in this case are about family violence. As is apparent from the commencement of these reasons that was an issue that Ms Pace pursued in these proceedings. There is an evidential onus upon her to prove the allegations of fact that she makes.
Both parties gave evidence about these issues. Ms Pace gave her evidence in her trial affidavit, as did Mr Pace. Ms Pace’s affidavit annexed documents of a hearsay nature that provide some contemporaneous records against which to assess her evidence. Both parties were cross-examined.
Generally I found both parties to be unimpressive witnesses. Both tended to be defensive and seemingly unable to answer direct questions with direct answers. Both often tried to embellish their answers in a way that, no doubt, they thought cast them in a favourable light and the other party in a poor light.
Of the documents annexed to Ms Pace’s affidavit, the notes from her psychologist, Mr M, are the most illuminating. They purport to be contemporaneous notes of his consultations with Ms Pace from February, 2008 until July, 2011. The notes of the first consultation include a history taken from Ms Pace by Mr M. Significantly, and despite the events that I will set out shortly in these reasons, Ms Pace described the troubles with Mr Pace as: “Husband – control and verbal abuse issues – Ms Pace indicated that she has begun to stand up for herself more over time.” No complaint was made about physical violence by Mr Pace towards Ms Pace. The only reference in the notes to Mr Pace being physically abusive towards Ms Pace is the entry made on 16 November, 2009. No detail is given about what was meant by the phrase “physically abusive”.
There are no other contemporaneous notes or documents to which I have been taken which might assist to assess the reliability of either Mr Pace or Ms Pace. Ms J is a social worker who has prepared a report pursuant to s.62G of the Act for these proceedings. There are no statements recorded by Ms J made by the children to Ms J that support Ms Pace’s case that Mr Pace was physically abusive or physically aggressive to her. No such statements are reported to have been made to Mr T either.
In the written submissions delivered on her behalf, Ms Pace contends that I should make the following findings of fact:
April 2001
• on a Saturday night in April 2001 the mother collected the father from the golf club
• the father was drunk
• X was in the car
• the mother and the father argued
• the father then shoved the mother who was driving the car
• the father, in a raised voice , said words to the effect of “I’ll end it right here, right now for all of us if that’s what you want”
• the following day the mother and X left the home
September 2006
• on a Saturday night in 2006
• the father returned home from golf, drunk
• he was dropped at the home by his friend, Mr V
• the children were present in the home
• the children at the time of the father’s arrival were eating two-minute noodles
• the father said words to the effect of “why the fuck are the kids eating noodles?”
• the mother and the father began to argue
• the father grabbed the mother by the throat
• the father shoved the mother against the kitchen bench
• the father then pushed the mother against the bay window in the kitchen
• the mother asked the father to stop his behaviour
• the children observed their mother being held by the throat and pushed
• the child, X, yelled “don’t” kill mummy, daddy; don’t kill mummy’’
Early 2008
• at the relevant time the parties were living in a property at (omitted)
• on occasion during the day the children were playing on a seesaw in the backyard
• the children were aged five and seven at the time
• the children were fighting about the seesaw
• the father saw the children fighting
• the father threw his coffee cup at the children
• it impacted on the seesaw and smashed
• hot coffee was thrown over the children
• the children became distressed
• the children sought their mother out for comfort
September 2010
• on an occasion during the day the mother went outside
• the mother saw the father beside the shed
• the father was standing beside the shed shooting a gun
• the father was shooting in the direction where Y was playing in the sandpit
• the mother became distressed
• the mother asked the father to stop
• the father became angry
• the father said words to the effect that he “wasn’t actually going to shoot Y”
• the father told the mother that he was shooting at a target down towards Y
• the father told the mother that it was important to him to be able to shoot from a hidden position
• the mother made Y come inside
23^rd of October 2010
• the father said to the mother words to the effect “he was going to take the children away and use his guns”
• the children heard the father saying this to the mother
• the father then when outside moving towards the shed
• the mother had seen the father’s guns within the shed previously
• the mother formed the belief that the father was going to carry out his threat
• the mother became distressed
• the children became distressed
• as the father began to move to the shed the mother instructed the children to run to the car
• the children and the mother ran to the car
• the children and the mother immediately left
19 May 2012
• on the evening of 19 May 2012 the children prepared a roast dinner
• the father arrived home that night
• the father was in a bad mood upon his arrival
• during the meal X used her fingers ta eat her food
• the father became angry
• the father stated to X “you are disgusting X, clean your hands, you are so lazy”
• X cleaned her hands on her napkin
• the father screamed into X’s face
• X became distressed and began to cry
• X ran from the room
• the father yelled at X to return to the table and sit down
• X returned to the table
• the father then yelled at X to go to her room
• X yelled “stop daddy, you are scaring me”
• the father did not stop yelling at X
• Y began to cry
• Y yelled “stop daddy, I’m scared”
• the father pointed his finger at Y and screamed “mind your own business Y, it’s got nothing to do with you”
• Y ran from the room
• the mother entered the children’s room
• the mother observed X howling and physically shaking
• the mother observed that Y was hiding under her blankets and crying uncontrollably
• Y said words the effect “mum why did you promise to never let us be hurt or scared by daddy again but you do let him yell at us and we get scared. We don’t want him living here anymore. He is always mean to you and mean to us. It makes you cry and yells at you and says you are crap and a bad mum. You broke your promise mum I’m so scared living here I want us to move out where daddy can’t find us. Please mummy, you promised.”
As to the first allegation, Mr Pace admits that in 2001 he had said “if you want to finish it, I will finish it”. He admits that he said that in the context of an argument between he and Ms Pace whilst she was driving him home from a golf club. He swears, however, that he was referring to ending the parties’ relationship, nothing else. He claims that Ms Pace has accepted in conversations: “I now understand what he said and meant as referring to ending the relationship”.
Mr Pace was cross-examined about this event. His evidence was less than impressive. He claimed to have a specific recollection of what was said by him on that evening in 2001 even though, on his own case, he was affected by alcohol consumption. When he was challenged about his recollection, he claimed to have written down the relevant words said by him to Ms Pace. He was unable to give a credible explanation as to why he would do that, although as the parties relationship deteriorated, according to this evidence, his note taking increased. None of his contemporaneous notes are in evidence.
He was cross-examined about other conversation that Ms Pace reported to have occurred during the course of the parties’ argument on this occasion. Mr Pace was unable to remember any of the other conversation. He accepted that at the time he was both angry and drunk.
I prefer Ms Pace’s evidence about this episode to that of Mr Pace. I find that on a Saturday night in April 2001 Ms Pace collected Mr Pace from a golf club at about 10.00pm. He was drunk. He and Ms Pace argued. Mr Pace shoved Ms Pace who was driving the car. Mr Pace in a raised voice, said words to the effect: “I’ll end it right here, right now for all of us if that’s what you want”. But he did not do so.
It is uncontentious that the following day Ms Pace and X left the parties’ home and went to a “women’s shelter”. They remained there for some three weeks until they returned to live with Mr Pace.
As to the next allegation, Mr Pace gives no evidence in his own affidavit material about that episode. He was cross-examined about it. Apart from denying that he had grabbed Ms Pace by the throat and attempted to pin her up against a wall, he had no recollection of any of the other matters that formed part of that episode. It is of course, curious, that he could remember not doing the act which is at the centre of the incident but not any of the other matters that were attendant on it.
I accept Ms Pace’s evidence about this episode and I find that on a Saturday night in 2006 Mr Pace returned home from golf, drunk. The children were present and eating noodles when he arrived. Mr Pace said words to the effect: “why the fuck are the kids eating noodles?”. Ms Pace and Mr Pace began to argue and he grabbed Ms Pace by the throat. He shoved Ms Pace against the kitchen bench. He pushed her against the bay window in the kitchen. She asked him to stop. I accept that the children were present and were able to observe their mother being held by the throat and pushed. I accept that X, yelled “don’t kill mummy, daddy; don’t kill mummy’’. It is difficult to say how old the children were but they could not have been any older than 6 and 3 respectively. It is noteworthy that neither seems to have reported witnessing this incident to Ms J.
In the third incident, Ms Pace alleges that Mr Pace threw a coffee cup full of hot coffee at the children. His response was to accept that he had thrown a coffee cup full of coffee, but he says that he did not throw it at the children. He says that he threw the coffee cup in frustration because as he was preparing to go and play a game of golf, the first in a long while, Ms Pace “started on him”. He threw the cup, he says in frustration.
I found Mr Pace’s evidence about this episode convincing. I am satisfied that the episode happened as he suggests. Nonetheless the episode still shows that he was given to acts of physical aggression when he was frustrated. He accepts that he was angry with Ms Pace on that occasion and he may have sworn at her. He accepts that the children may have both witnessed his behaviour and heard him swear at their mother.
As to the allegation concerning Mr Pace shooting a rifle in the direction of Y, I accept Mr Pace’s explanation of this incident. He accepted that he was firing an air rifle from a shed on the parties’ property at a target. He also accepted that Y was outside playing in a sandpit which was part of a cubby house that he had built for the children. However, he says and I accept, that Y was at right angles to the direction in which he was firing and there was no chance that he might accidentally fire the rifle at her. He accepted that Ms Pace became upset about the incident. She reported the incident to the police, but the police took no action in respect of her complaint. According to Mr Pace’s evidence, which I accept, the police told him that Ms Pace told them that he was not shooting in the direction of Y.
I reject Ms Pace’s evidence that Mr Pace had concealed himself while he was shooting at the target. I reject her evidence that he said to her that he needed to be able to shoot while hidden.
In respect of this and the previous incident that I have dealt with above, I am satisfied that Ms Pace has reconstructed the events so as to place on them a far more sinister connotation than they would otherwise bare. Put another way, she has exaggerated the incident for the purposes of her case.
As to the next incident, Ms Pace gave evidence that on 23 October 2010, Mr Pace said words to the effect that he was “going to take to the children away in his ute and use his guns”. She claims that the children overheard Mr Pace saying that to her. She claims that as a result, the children became very distressed and anxious although she does not describe the behaviour that she observed to reach the conclusion that they were distressed and anxious. She gives evidence that at the time, she genuinely believed that Mr Pace was going to shoot them. As a result, she claims that she fled with the children to a “Domestic Violence refuge” for a three month period and received assistance from the (omitted) Domestic Violence Service.
Ms Pace alleges that on 23 October, 2010 Mr Pace threatened to shoot the family. I am not satisfied by her evidence that such an episode took place as she alleges. At about that time the parties were contemplating separation. Mr Pace had been to see lawyers. I accept his evidence that he had been working all week and wished to spend time with the girls. He had organised with them to take them for a drive through what he called the (omitted), an outing which they had enjoyed in the past. Ms Pace, however, did not wish for him to take the children. I accept that in the context of the parties talked about separation Ms Pace may have been anxious about Mr Pace taking children out of her care. I accept that the parties argued about the children going with Mr Pace and that the argument ended with Ms Pace leaving the property with the children in her car. I am not satisfied, however, that Mr Pace issued the threats that she claims he made.
Ms Pace left the property and separated from Mr Pace for about three months. She made a complaint to the police and sought the benefit of a protection order. A temporary order was made. She withdrew her application, however, before the temporary order was made on a permanent basis. By the time the trial came around for the protection order, the parties had reconciled. It was put to Mr Pace that he had imposed upon Ms Pace to withdraw the application. He denied that. I am not satisfied that Mr Pace imposed upon Ms Pace to withdraw her protection order application. I am satisfied that she did that of her own free will. Consequently, it seems more likely than not that whatever was said by Mr Pace to Ms Pace on 23 October, 2010 she was not so concerned by it that she could not reconcile with Mr Pace and did not insist upon the benefit of a protection order against him.
In my view, this is another example of Ms Pace exaggerating the incidents that occurred between her and Mr Pace or, embellishing them so as to suit her purposes.
As to the episode that Ms Pace alleges took place on 19 May, 2012 Mr Pace says:
192. ln respect of events on 20 May 2012 regarding X cleaning her hands l agree that there was an exchange between X and myself regarding cleaning her hands but l do not agree with the version which Ms Pace has previously described and l say that she has exaggerated. We had been sitting at the dinner table eating dinner and l had four times asked X to use her knife and fork and clean her hands. X did not listen to me so l raised my voice and again told her to clean her hands. X started to cry and left the room. X later that night gave me a big kiss goodnight when I gave her a hot water bottle cover and tucked her in. I admit that l had raised my voice at X, however I do not agree that this incident was anything other than an attempt to have X behave in a civilized way at the dinner table and l do not consider that it was domestic violence.
193. My actions in reprimanding X for eating with her hands were actually an attempt to support and co-parent with Ms Pace, as Ms Pace had on many times previously told X not to eat with her hands.
Ms Pace’s version of this event is:
110. Mr Pace arrived home much later than expected on that night, and I could tell that he was in a bad mood straight away. I could tell that he was in a bad mood because of his expressions and the tone of his voice.
111. Throughout the meal, X was using her fingers to eat her food. I asked her not to do this and to wipe her hands, which she did. Immediately following this, Mr Pace stood up and roared at her ‘‘you are disgusting X, clean your hands, you are so lazy”. X replied that she had wiped her hands on her napkin. Mr Pace responded to this by screaming at X directly into her face to the extent that she began crying. She ran from the room.
112. Mr Pace yelled at X to return to the table and sit down. X did what Mr Pace said. Mr Pace then yelled at X to go to her room. X became confused and she was yelling “stop it daddy you are scaring me” but Mr Pace seemed to be in a rage and did not stop.
113. Y was still sitting at the table beside Mr Pace and was crying and yelling “stop yelling daddy, l am scared”. Mr Pace turned to Y and put his face very close to hers and pointed his finger directly into her face and screamed “mind your own business Y, I’s got nothing to do with you”. This made Y become very scared, and she got up and ran to her room.
114. I went to their rooms to check on them. X was howling and physically shaking. Y was on her bed hiding under her blankets and crying uncontrollably. Y said to me words to the effect of “mum why did you promise to never let us be hurt or scared by daddy again but you do let him yell at us and we get scared. We don’t want him living here anymore. He is always mean to you and mean to us. He makes you cry and yells at you and says you are a crap and a bad mum. You broke your promise mum. l am so seared living here and l want us to move out where daddy can’t find us. Please mummy, you promised “.
115. I managed to settle both the children down. I went back out to Mr Pace and asked him to leave the dining room so the children could come back out to eat. Mr Pace agreed not to come back in, but as soon as the children were back at the table he came back to the doorway and began screaming at them about how bad they were and how they treat him like dirt. The children immediately became upset again and ran to their rooms.

I found Mr Pace’s evidence about this more persuasive than Ms Pace’s evidence. I accept that it was an attempt by him to discipline X because she would not do what either Ms Pace or Mr Pace asked her to do, namely wash her hands. I accept that Mr Pace raised his voice at X but only in an attempt to have her take his direction seriously. I do not accept that he raised his voice at Y. I accept that Mr Pace’s attempts, however, resulted in an argument between Mr Pace and Ms Pace which resulted in them arguing in front of the children. I accept that Ms Pace directed Mr Pace to sleep at the opposite end of the house to her and the children and the next day they separated.
I do not accept that Y said to Ms Pace the words that she is reported to have said. In my view, that reported conversation is yet another embellishment by Ms Pace of the incident that took place between the parties and for the purpose of these proceedings.
Ms Pace has also made a number of general allegations that Mr Pace engaged in family violence of a physical and verbal nature directed towards her and the children throughout their relationship. Whilst she suggests that he was physically violent towards her, she does not allege that Mr Pace has been physically violent to the children. She asserts that he has been emotionally abusive to them in that he has on occasions yelled at them and that they are scared of him.
For every allegation Ms Pace makes, there is a denial from Mr Pace. He particularly denies ever being physically violent towards Ms Pace. He also downplays the alleged occasions of him losing control of his temper in a non-physical sense. He argues that he has a loud voice, which gives the perception he is being abusive. He also argues that the confrontations were two way, with Ms Pace actively engaging in the altercations. She accepts that was so.
The physical assaults that Ms Pace describes generally in a material and that were put to Mr Pace are significant. One might have expected assaults of the nature described by Ms Pace would require some medical treatment. There is no evidence before me that she sought treatment. There is no objective evidence in support of her allegations.
I am not satisfied that the children are at an unacceptable risk of physical harm by reason of being exposed to abuse or family violence at the hands of Mr Pace. I am not satisfied that they are at an unacceptable risk of harm by reason of his access to firearms. Nor am I satisfied that the children are at an unacceptable risk of emotional harm by reason of being exposed to abuse or family violence at the hands of Mr Pace. I am not satisfied that Mr Pace would behave in a way towards the children that would knowingly cause them physical, emotional or psychological harm by reason of exposing them to abuse neglect or family violence. I am satisfied that whilst he may have raised his voice to the children in the past and during the course of the parties’ relationship, his behaviour did not present an unacceptable risk of harm to the children.
I am fortified in those findings by the following:
a)at separation in 2012 and shortly thereafter at Christmas, 2012 the parties agree that the children did not appear to exhibit fear of Mr Pace;
b)indeed, the evidence obtained by Ms J from Mr P, the Principal of the children’s school was that the children were always happy to see their father when he picked them up from school and interacted happily with them;
c)the fear that they now exhibit has developed whilst they have been in the sole care of Ms Pace, whilst they have had no contact with Mr Pace and in the absence of any alleged incidents of family violence either between the parents or Mr Pace and the children;
d)Mr P reported to Ms J that Ms Pace has shown no respect for Mr Pace and that the girls had noticed that;
e)Mr P also reported to Ms J that Ms Pace does not filter her discussions in the children’s presence;
f)the children’s views in respect of Mr Pace and their emotional state have not been improved in since Ms J’s report. During that time, they have been solely in the care of Ms Pace
There are risks of psychological harm for these children that arise from the behaviour of both of these parents and by reason of the nature of their relationship one with the other. I will deal with these issues more fully later in these reasons.
The children have clearly expressed strong views that they do not wish to engage with Mr Pace on any level. Those views are recorded in the independent evidence of Ms A, a psychologist consulted by Ms Pace and the children, Ms J and Mr T. Those views were demonstrated in the lead up to the trial when they repeatedly refused to spend supervised time with Mr Pace at a contact centre.
For the purposes of Ms J’ report, she interviewed both X and Y. With respect to the children’s views, Ms J records X as being particularly negative towards her father. At paragraph 63 of her report, she records X as saying:
I never liked him, I don’t feel he was ever my father; he is not nice at home, he argues with everything, he did not help with anything, he just played the computer… his favourite was Y she did used to like him; then she saw how nasty he is. I don’t want to see him ever… he was not nice to me when we lived together so why would he be now.
Ms J records X expressing that she perceived Mr Pace as being a stranger in their household who argued constantly with Ms Pace and preferred Y over herself, and she had no desire to spend time with him into the future.
Ms J recorded Y as being a:
vulnerable little girl; too emotionally ‘overcome’ to engage in an individual interview.
Ms J endeavoured to engage the children with their father, during the report interviews, but to no avail. Overall, Ms J recorded that:
…[a] visit with Dad would seem to represent a disruption to their present comfortable circumstances and was clearly not an outcome either child expected or would be happy with at present.”
Ms J gave evidence that it is reasonable to assume that both parties’ behaviour, to some degree, have influenced the children’s views about Mr Pace. She did not think that the children had been coached into giving the answers they did during their report interviews and that there feelings were genuine. She is of the view that the children’s perceptions are based on their own experiences with Mr Pace and are not overtly informed by Ms Pace. However, she further opined that if it were true that the children’s perceptions of their father were not informed by their own experiences and were informed solely by Ms Pace and were ill-informed, it would be in the best interests of the children for them to learn the truth that their father is not really how they perceive him to be.
Ms J thought that it would be “abusive” to simply enforce time between the children, especially Y, and Mr Pace with the knowledge that none of the experts has so far managed to facilitate time.
Overall, in her evaluation, Ms J says:
With respect to Mr Pace’s claim that Ms Pace has alienated the children against him it is likely that the reasons for the alienation as perceived by Mr Pace may be found in his own behaviours towards Ms Pace and the children, such as reported in some detail by Ms Pace in the background of this report.
Mr T prepared a short report with respect to the counselling sessions he conducted with the family and the children in particular. Those sessions were conducted with “a view to progressing the resolution of issues preventing them spending time with the father…” He records that he conducted 15 sessions with the family and 8 sessions with the children between November of 2013 and May of 2014.
With respect to the children’s views of their father, at paragraph 4 of the report Mr T says this:
Across the appointments, both girls have been consistent in their strongly held views that they do not wish to see or spend time with their father. Neither of the girls would moderate their desire not to see Mr Pace. I am not in a position to comment on the validity of opinions or feelings they state they hold towards their father.
Mr Pace accepts that the children are currently experiencing a degree of emotional distress at recommencing spending time with him. He is at a loss about what to do about that.
Ms Pace contends that the children’s views are their own; Mr Pace contends they have been cultivated by Ms Pace. None of the expert witnesses that have given evidence in these proceedings has suggested that the views of the children are not their own. Whilst the facts I have set out above might tend towards the inference that Ms Pace may have been imposing her own views upon the children, the weight of the expert testimony in this case is against that proposition. I decline to draw the inference that Ms Pace has been overtly imposing upon the children such that the views that they now reflect are genuinely held by them.
In any event, whatever the source of the children’s views about their relationship with Mr Pace, those view manifest in distress and anxiety for each child, especially when they are asked to reflect upon their relationship with him, or when they perceive there to be a risk that they will come in contact with him. There is no suggestion that these manifestations are not genuine.
The age of these children suggests that their wishes should be given considerable weight. X will be 15 in (omitted) and Y has already turned 12. They have both demonstrated a reasonable level of maturity. Both Ms J and Mr T suggested that was the case.
If I am wrong and the children’s views are the product of imposition by Ms Pace upon the children, the position is nonetheless the same. The children’s views are, on all of the evidence, genuinely held by them. Their opposition to time with Mr Pace remains and the manifestations of their wishes appear to be genuine and not contrived.
To ignore the children’s views and to make orders inconsistent with them would be to cast the children further into their distress and anxiety. The Court could attempt to “undo” their views or make orders for them to be counselled out of them, but, on any reasonable view of all the expert evidence, this would either never have the desired effect, or, in achieving the desire effect, the children would first have to be brought into a prolonged period of distress, a period that could last the duration of their childhood. Neither Ms J nor Mr T thought that was a wise course.
Having regard to those matters, Ms Pace’s orders would bring more benefit to the children than those sought by Mr Pace because they would tend to protect the children from further trauma associated with spending time with Mr Pace against their wishes.
Ms Pace is undisputedly the children’s primary carer, and has been since they were born. Mr Pace does not dispute that Ms Pace and the children have a strong relationship. Further, as Ms Pace attests, I accept the children have a strong connection with the maternal family.
The point need not be laboured that the children’s relationships with their father are poor. But that was not always the case. The children’s relationship with him has deteriorated since they have been in the sole care of Ms Pace. The evidence is that she has made all significant decisions for them, as the children know. She has had them taken to psychologists and counsellors and has, on at least one occasion hidden that fact from Mr Pace and counselled others, such as the school principal to not inform Mr Pace of that. I have no doubt that the children were aware of this and that it has had an impact upon their relationship with him.
The children have no living paternal grandparents. Two of the paternal aunties filed affidavits that are relied upon by the father. They each show an eagerness to spend time with the children and to facilitate time between the children and their father. Otherwise, the children do not appear to have particularly strong relationships with any members of the paternal family.
I reject Ms Pace’s evidence that Mr Pace was not involved with the children when the parties’ relationship was intact. I am satisfied that he was an involved and devoted father. The rejection of such a view by her is, I am satisfied, just another of the exaggerations in her case.
However, since separation, Mr Pace’s physical involvement in the children’s lives has been virtually non-existent. That is due to no lack of willingness on his part to spend time with them. He commenced these proceedings in early 2013, less than 12 months after separation. He did so only after failing to successfully negotiate time for his children to spend with him.
I reject Ms Pace’s assertions that Mr Pace altogether failed to fulfil his obligations to maintain the children during the time the parties were together. He provided, I am satisfied, the financial support required to maintain them. He fulfilled the role of parent to the children, albeit in a different way than Ms Pace given that he was actively engaged in full-time employment whilst Ms Pace was not.
Moreover, since separation Mr Pace has continued his financial support of Ms Pace and the children. He did so at a commendable level. His support of his children is attested by his actions in that regard.
On all the evidence, it is likely that any change in the children’s circumstances, especially a change that would involve them separating from their mother to spend more time with their father would likely have a negative impact on them in terms of their psychological health.
On the evidence available at the trial, Ms Pace was living in (omitted) and Mr Pace was living in the former matrimonial home at (omitted). The father’s evidence at paragraphs 179 to 182 of his trial affidavit indicates that he intends to live in the former matrimonial home until it sells and thereafter he intends to rent a residence in (omitted) until he can “find more permanent arrangements.” It is not clear where the father’s “permanent arrangements” will see him living, but, as it currently stands, there is approximately 90 kilometres between the parties’ residences.
Mr Pace’s proposal is for the children to spend alternate weekends with him from after school on Friday to before school on Monday. While the distance between the parties’ residences is not ideal, I do not consider it would result in a level of practical difficulty or expense that would prevent the children being able to spend time with Mr Pace on his proposal. The other expenses that might be relevant are those connected with orders for the children to spend time with Mr Pace at a contact centre, if that were ordered. Those costs would not be excessive and the father’s income indicates his capacity to meet them.
I am confident Ms Pace has the capacity to provide for the intellectual needs of both children. However, I have considerable difficulty with the notion that she is able to adequately provide for their emotional needs and in particular the need for them to have a positive and fulfilling relationship with their other parent, Mr Pace.
Ms Pace’s behaviour since separation seems to have exposed the children to emotional or perhaps psychological harm. I come to that conclusion based upon the following matters:
a)The children’s fears of Mr Pace seem disproportionate to the allegations of family violence reported by Ms Pace;
b)There is an absence of evidence of Ms Pace encouraging and positively supporting the children recommencing time with Mr Pace;
c)Ms Pace relocated the children from the family home to a refuge which increased their anxiety; and
d)Ms Pace having involved the children in discussions about her dispute with Mr Pace arising from the breakdown of their relationship.
I reject Ms Pace’s self-serving evidence that she sees it as important that the children have a relationship with Mr Pace. On her own evidence, she has essentially left it to the children to choose if they maintain their relationship with him. She can say nothing of substance that is positive about him in the confines of these proceedings. It is reasonable to assume that she says nothing positive to the children about him. Counsel for the father amply demonstrated in cross-examination that Ms Pace, whilst saying that she was supportive of a relationship between the children and their father, was adept at ensuring that the relationship did not re-establish. I have already set out the observations made by Mr P reported to Ms J earlier in these reasons.
I am satisfied that Ms Pace has unnecessarily and inappropriately involved the children in these proceedings and in the issues between her and Mr Pace. On all of the expert evidence, the children are acutely aware of the conflict between their parents.
Ms Pace demonstrated no insight into how the conflict between her and Mr Pace about parenting issues could, or was, impacting upon the children. That was despite being in possession of an opinion from Ms A, a psychologist who consulted with Y, to the effect that Y was affected by her parents’ conflict. In another example of the way in which Ms Pace exaggerated or embellished her evidence, she suggested that Y had been diagnosed with post-traumatic stress disorder as a result of the conflict between her and Mr Pace. However, that was not the case, as Ms Pace admitted she knew, in cross-examination.
I am satisfied that Ms Pace’s ability to meet the children’s emotional; needs is compromised. She is unable to put each child’s need for a relationship with Mr Pace ahead of her own need to engage in the conflict that rages with Mr Pace of her own needs.
Neither am I confident, that Mr Pace has an acceptable capacity to provide for the children’s emotional needs. The fact that he presses his need to spend time with the children, even though they have demonstrated a strong desire to avoid spending time with him, indicates to the Court that he has little insight into their emotional needs, however they have come about. I make that finding notwithstanding that since these proceedings were commenced, Mr Pace has not enforced spending time with them, nor has he behaved in a way to raise their level of anxiety. Mr Pace accepts that the children are currently experiencing a degree of emotional distress at recommencing spending time with him.
However, his inability to acknowledge the obvious connection between the distress and anxiety the children are prone to suffer and their strong unwillingness to engage with him is concerning. His dogged pursuit of his own position and his own need to spend time with the children, notwithstanding all of the independent evidence that suggests the children suffer because of it, indicates his inability to place the emotional needs of his children before his own needs as a parent.
It is not in dispute that both children have been affected psychologically by their parents’ dispute. The reports of Ms A made in 2012 revealed both children as then having “clinically elevated scores for depression, anxiety and post-traumatic stress.” Some caution needs to be applied to these reports because much of the information used within them was given to Ms A by Ms Pace. Nonetheless, there were some clinical observations made by Ms A.
There is more recent evidence (January, 2014) of the child, Y, being admitted to the (omitted) Hospital for symptoms she suffered in connection with anxiety and distress.
There is a current family violence order applying to the children and Ms Pace, but I do not intend to examine it to the extent that might otherwise be required. Such an exercise would not impact upon my overall assessment in this matter and the orders that are appropriate.
It is always preferable to frame parenting orders that would least likely lead to the institution of further proceedings. It is my view that these proceedings have already been protracted, particularly with contravention applications, as a result of the Court’s attempts to reengage the relationships between the children and the father. For whatever reason, those efforts have been unsuccessful. Having regard to the history of these proceedings, I am not convinced that orders for time between Mr Pace and the children will lead to an end in the litigation between these parties; in fact, I think orders framed in those terms will increase the tensions between the parties and will cause the institution of further proceedings, because I think that it is likely that Ms Pace will not be satisfied or would not comply with the orders.

The parties did not suggest that there were any further matters to be taken into account.

Conclusions

Mr Pace argues that I should disregard Ms J’s opinion because it was predicated upon the allegations of violence made by Ms Pace to be true. I accept that submission. Her opinions were clearly so based. The factual basis for her opinions are somewhat eroded by my findings about the matters in respect of which I was asked to make findings. But it does not falsify all of her opinions. The fulcrum upon which her recommendations turn is the view expressed by the children and the genuine nature of those views. So too, the opinions advanced by Mr T.
Both Ms J and Mr T suggested that before the children spend time with Mr Pace it is likely that they will need to have space from their parents’ dispute and for the parents to address their conflict independent of the children. Even the prospect of the children spending small, graduated time with Mr Pace could only occur once the parties have addressed (and perhaps resolved) the conflict between them.
Ms J thought that if the Court were to make findings that Ms Pace’s allegations of family violence were made up by her and she were to be blamed for the children’s negative perceptions of the father, Ms Pace would then be faced with having to accept that she was responsible for the children’s perceptions of their father. An expert could be engaged to work with the parents and that person would have a better chance of resolving the parental dispute. Ms J thought that might abridge the time it would take for the children to feel secure with Mr Pace. Ms J thought that telling the children that their perceptions are ill-informed at the fault of Ms Pace would “not necessarily” be detrimental to them because “people have to learn that people can have it wrong”. However, the children would still believe what they believe about Mr Pace because their perceptions of him are fixed in their minds, but they would then benefit from cognitive behaviour therapy because their thinking was wrong.
Mr T thought that:
7. The question of how to move forward on the children’s contact issue might next be progressed with therapeutic counselling between Mr and Ms Pace. It is my opinion that would only realistically commence after some judgments are made in a Final Hearing on the parents’ issues. Following some sessions between the parents, the children would be introduced into a family inclusive therapeutic approach.
8. It is also my opinion that an appropriate treatment programme, following current ‘best practice’ for psychological treatments of childhood anxiety be undertaken with Y, and including Ms Pace, and later Mr Pace. Current best practice would involve a Cognitive Behavioural Therapy approach.
Mr Pace submits that the emotional harm and anxiety of the children will abate once they recommence spending time with him. Until the children commence spending time with him he will have no opportunity to alter their opinion of him and reunify with them thereby ending their current state of emotional distress. There is a superficial logic to his argument. But his argument is not supported by either Ms J or Mr T.
Having regard to the evidence before me and the opinions of both Ms J and Mr T, it is difficult to see how an order that the children spend time with Mr Pace can be in their best interests. The orders proposed by Ms Pace, or orders like them, would provide some relief for the children from the conflict between their parents and the behaviours of Ms Pace in which she must engage as a result of that conflict.
I accept that Mr Pace has a genuine desire to have a relationship with both of his children. But I cannot see how this can occur at the moment. Mr Pace under-cross examination conceded he had no plans to forge the meaningful relationships he seeks to have with his children.
Ms Pace, I accept, has made attempts some superficial attempts to facilitate relationships between Mr Pace and the children, but she is not committed to those relationships. I am not satisfied that she sees any value in them for the children.
Ms J has made efforts to engage the children with their father. Mr T has done the same. Most recently in the lead up to the trial, concerted efforts were made on three separate occasions to engage the children with their father. In my view, every reasonable attempt has been made to reignite a relationship between Mr Pace and his children, and every one of those attempts has been unsuccessful.
Regrettably, and sadly for these children, it is unlikely that anything could be done to strike a meaningful relationship between Mr Pace and his children at this point. The children are, seemingly, so fixed in their views of their father, to the point where it does not matter how they came to hold those views, that presently no amount of therapeutic intervention, or any other type of intervention (including from Ms Pace) will put these children in a frame of mind in which they might want to engage with the father.
I am of the view that there should be no orders for time between the children and their father, save for there being in order that if the children express a desire to spend time with their father then Ms Pace is to initiate that time.
Initially, the idea that an order for equal shared parental responsibility for these children was attractive. It would enable these children to derive a benefit from input from Mr Pace. He would remain connected with them in a sense. Decision making for children is no less important as children spending time with their parents.
But even if the presumption of equal shared parental responsibility was not rebutted (as I think it is on the facts of this case) I am of the view an order for equal shared parental responsibility is not in the children’s best interests because it will provide a source of ongoing parental conflict. The children will continue to be subjected to the same parental environment as that which has existed since separation. That has not worked to their benefit.
It is important that these reasons are explained to the children. I will make an order that the children be presented to a person appointed by the Director of Court Counselling at a time and place to be fixed by that person for the purposes of explaining these orders to the children.
I think that it is important for the children that the parents attempt to work on their conflict. Mr T has suggested therapeutic intervention for the parents. I will order that within 2 months of the making of these orders the parents engage with a person agreed between them, and failing agreement, Mr T (if he will accept such an appointment) for the purposes of providing that therapy.
Otherwise, all outstanding applications shall be dismissed and all earlier parenting orders shall be discharged.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date: 24 November 2015

[2015] FCCA 3100

24 November 2015

Key Legal Topics

Areas of Law

Family Law