Packer and Irwin and Anor
[2013] FCCA 658
•1 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PACKER & IRWIN & ANOR | [2013] FCCA 658 |
| Catchwords: FAMILY LAW – Parenting – same sex couple – two children now aged 11½ and 9 conceived through IVF – where sperm donor has intervened in the proceedings – separation under the one roof in 2007 – physical separation in 2008 – where children remained with biological mother – where time between the non-biological mother and the children has been problematic – where older child no longer spending time – where younger child spending time as agreed between the parents – where family report obtained prior to court proceedings – where children expressed very clear views of whether they wanted to spend time with the non-biological mother – where it is questionable whether the children have had an attachment to the non-biological mother for a number of reasons – where bond has deteriorated over the years – where biological mother is seeking sole parental responsibility and time between the children and the non-biological mother as can be agreed upon between the parents – where non-biological mother seeking equal shared parental responsibility and structured time to be built up – Held that it is in the children’s best interests for the biological mother to have sole parental responsibility – Held that children’s views are to be given significant weight – Held that counselling would not be beneficial between the children and the non-biological mother – Held that spend time with be as agreed upon between the parents or as requested by the children. |
| Legislation: Family Law Act 1975 (Cth), Part VII, ss.60B, 60CA , 60CC, 61DA and 65DAA Status of Children Act 1978, ss.19B, 19C, 19D and 19F |
| R & R : Childrens’ Wishes [2000] FamCA 43 Hardie & Capris [2010] FamCA 1046 Starr & Duggan [2009] FamCAFC 115 MRR v GR (2010) 263 ALR 368 |
| Applicant: | MS PACKER |
| First Respondent: | MS IRWIN |
| Intervener: | MR JEFFRIES |
| File Number: | BRC 5416 of 2012 |
| Judgment of: | Judge L.Turner |
| Hearing dates: | 25 & 26 February 2013 |
| Date of Last Submission: | 26 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 1 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Dixie Ann Middleton & Associates |
| Counsel for the Respondent: | Mr Jordan |
| Solicitors for the Respondent: | Harrington Family Lawyers |
| Counsel for the Intervener: | Mr Waterman |
| Solicitors for the Intervener: | Michael Sing Lawyers Pty Ltd |
ORDERS
That all previous parenting Orders are hereby discharged.
That the children [X] born [in] 2001 and [Y] born [in] 2004 live with Ms Irwin.
That Ms Irwin have sole parental responsibility for the children except in that:
(a)
Ms Irwin cannot change the names of the children on the birth certificates without the consent first had and obtained from
Ms Packer.
That the children spend time with Ms Packer:
(a)at such times as can be agreed upon between the parents; and
(b)at such reasonable times as requested by the children.
That changeover occur at venues as can be arranged between the parents.
That each parent is not to telephone the other parent or the children during the children’s respective time with the parent unless:
(a)it is requested by the children; or
(b)it is an emergency; or
(c)it relates to a change in the upcoming spend time with arrangement.
That the parents take all steps as are necessary to ensure that the children are referred to for the purposes of any written documentation in terms of their full names as appear on the birth certificates namely for [X] “[X] Packer Irwin” and for [Y] “[Y]. Packer Irwin”
That the parents forthwith take all such steps as necessary to ensure that Ms Packer appears as a parent on the birth certificates of each of the children.
That in any document pertaining to the children which require full details of the parents that the parent completing the document will include full details of the other parent.
That within 21 days from the date hereof Ms Irwin make available, through her legal representatives, all photographs and recordings of the children, which Ms Packer shall, within 28 days thereof, copy at her expense.
That the parents refrain from discussing the Court proceedings or any other related adult issues with the children or in the children’s presence and shall use their best endeavours to ensure that no other person discusses such issues with the children or in the children’s presence.
That in the event either child requires a medical appointment or a hospital visit whilst in either parents care then the other parent is to be notified as soon as practicable as to the condition of the child and full details as to the medical appointment or the hospital appointment and are subsequently to be advised of any medicines required to be taken by the child or other medical treatment the child is to receive.
That this Order acts as an authority for either parent to communicate with and obtain information:
(a)from any doctor, hospital, medical or health professional concerning the health and treatment of the children;
(b)from any educational institution attended to by the children.
That the parents keep each other informed as to their current residential address and telephone numbers including landline and mobile numbers with each party to advise the other within 24 hours of any changes in their address or telephone numbers.
IT IS NOTED that publication of this judgment under the pseudonym Packer & Irwin & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5416 of 2012
| MS PACKER |
Applicant
And
| MS IRWIN |
Respondent
And
| MR JEFFRIES |
Intervener
REASONS FOR JUDGMENT
Introduction
Ms Packer aged 46 and Ms Irwin aged 47 are the parents of two girls, [X] aged 11½ and [Y] aged 9.
Both parents are social workers.
Ms Packer and Ms Irwin commenced a relationship in 1992.
In 1999 the parents and Mr Jeffries, as the intended sperm donor, entered into a written agreement as to the artificial insemination process and the position of Mr Jeffries should the parents be successful in conceiving.
In 2001 Ms Irwin gave birth to [X], who was conceived through IVF.
In 2004 Ms Irwin gave birth to [Y], who was conceived through IVF.
Mr Jeffries was the sperm donor for both children and has from time to time been involved with the children, such time increasing in more recent times.
Between March and October 2006 Ms Packer worked in New Zealand whilst Ms Irwin and the children remained in Brisbane.
In early 2007 the parents attended couple counselling.
In August 2007 the parents separated under the one roof and Ms Packer moved downstairs.
In April 2008 Ms Packer left the family home and the children remained with Ms Irwin.
At the time of physical separation [X] was nearly 7 and [Y] was nearly 4.
After separation the children spent overnight time with Ms Packer on weekends and irregular time mid-week.
Ms Packer later moved into a house at [omitted] and Ms Irwin, with the children, moved into a house at [omitted] which was funded in part by Mr Jeffries.
By early 2010 the spend time with arrangements had deteriorated and mid-week time had ceased.
In early 2010 the children attended counselling regarding the family dynamics.
In mid 2010 the parents attended co-parenting therapy.
In mid 2010 Ms Packer re-partnered with Dr W aged 42 who has two children, [A] aged 12 and [B] aged 10.
From September 2010 [X] refused to spend regular time with Ms Packer, attending occasionally on weekends.
By April 2011 [X]’s scheduled overnight time with Ms Packer ceased.
In late 2011 Ms Packer rented out the [omitted] home and commenced living with Dr W at her [omitted] property.
In early 2012 Ms Packer engaged solicitors and a proposal for time arrangements was provided to Ms Irwin with an indication that if orders were not entered into, proceedings would commence.
By May 2012 any scheduled time between [X] and Ms Packer ceased.
In May 2012 the parents jointly obtained a family report from Ms A which recommended that Ms Irwin have sole parental responsibility, that the children live with Ms Irwin and spend time with Ms Packer as could be agreed upon between the parents.
On 20 June 2012 Ms Packer commenced proceedings seeking a week about arrangement for the children.
In September 2012 Mr Jeffries intervened in the proceedings.
In October 2012 interim orders were made whereby the children remain living with Ms Irwin and spend time with Ms Packer as agreed upon between the parents.
In February 2013 the matter proceeded to a final hearing.
Current arrangements
Structured time between Ms Packer and the children does not exist.
As can be negotiated from time to time, Ms Packer spends time with [Y] usually during day time periods on a weekend most fortnights and sometimes sees [X] at changeover.
Mr Jeffries sees the children at least once a fortnight, drives [X] to some of her extra-curricular activities and babysits from time to time.
Proposals
At the time of the family report interviews in May 2012, prior to the commencement of proceedings, Ms Packer was seeking every alternate week from Wednesday after school until Sunday afternoon with the children.
At the commencement of the proceedings Ms Packer was seeking an equal shared care arrangement of week about with the children from Friday to Friday and for the parents to have equal shared parental responsibility.
In her amended initiating application filed in December 2012
Ms Packer was seeking progressive time with arrangements with the children starting at two hours and increasing to alternate weekends as well as holiday time and time on special days in additional to equal shared parental responsibility.
As at the date of the final hearing Ms Packer is seeking the following orders:
a)The children live with Ms Irwin.
b)The parents have equal shared parental responsibility for the children.
c)There be a build up of structured spend time arrangements between Ms Packer and the children commencing for two hours each alternate Saturday and then over several months increasing to alternate weekends from after school Friday to Sunday afternoon.
d)Commencing 2014 there be alternating halves of school holidays.
e)Time over the Christmas period.
f)Telephone communication.
g)Parents attend counselling with Dr G.
h)Orders as to changeover and who may attend changeovers.
i)Usual type orders as to attending school events, providing information as to schooling and medical issues, and keeping each other informed as to addresses and telephone numbers.
j)Orders as to retention of passports in the Registry and permission to travel overseas.
k)That Ms Irwin provide all tapes and recordings of the children to be copied by Ms Packer.
l)Costs.
At the time of the family report interviews in May 2012, prior to the commencement of proceedings, Ms Irwin was seeking that time between the children and Ms Packer be as agreed upon between the parents and for Ms Irwin to have sole parental responsibility.
This was the position contained in Ms Irwin’s response.
As at the date of the final hearing Ms Irwin is seeking the following orders:
a)The children live with Ms Irwin.
b)That Ms Irwin have sole parental responsibility for the children.
c)That the children spend time with Ms Packer as can be agreed upon between the parents.
Mr Jeffries is not seeking any orders pertaining to his time with the children but supports Ms Irwin in the orders that she seeks for the children in respect to Ms Packer.
Mr Jeffries also seeks costs.
Agreed orders
The only orders agreed to by the parents during the course of the proceedings is that:
i)the children live with Ms Irwin; and
b)that Ms Irwin will make available photographs of the children which can then be copied by Ms Packer.
Issues
The issues that I am required to determine are:
a)Who should have parental responsibility?
b)What should the spend time with arrangements be between Ms Packer and the children?
c)Additional issues.
Evidence
In considering these issues I have had regard to:
a)the material as marked on the Court file;
b)previous orders;
c)the family report released by the report writer Ms A in June 2012;
d)the oral submissions of the parents;
e)Part VII Family Law Act 1975 and in particular sections 60B, 60CC and 65DAA.
f)Status of Children Act 1978 and in particular sections 19B, 19C, 19D and 19F; and
g)the Full Court decision of R & R : Childrens’ Wishes [2000] FamCA 43 in respect to children’s views.
All parties are legally represented.
For Ms Packer the following witnesses were called and cross-examined:
a)Ms Packer;
b)Dr W (her partner);
c)Ms O (a friend).
For Ms Irwin the following witnesses were called and cross-examined:
a)Ms Irwin;
b)Ms T (a friend);
c)Ms S (a friend); and
d)Ms B (a friend).
For Mr Jeffries the following witness was called and cross-examined:
a)Mr Jeffries.
I find the parties to be credible witnesses.
I find Dr W to be a credible witness.
The other witnesses for both Ms Packer and Ms Irwin however provided no evidence that was relevant to the proceedings as the evidence was self-serving to the respective parties and related to past incidents which shed no light on the current proceedings.
I therefore give no weight to the evidence of Ms O for Ms Packer or to Ms T, Ms S or Ms B for Ms Irwin.
In addition to the above witnesses the report writer Ms A was called and cross-examined by the parties.
In considering the weight to be given to the report and to the report writer’s evidence in cross-examination, comment must be made as to how the report came into existence and the nature of the report.
This matter is slightly unusual as the report came into existence prior to the commencement of Court proceedings and at the costs and instigation of the parties in an attempt to resolve issues and avoid Court action.
I find that, as all the relevant issues were canvassed by Ms A in the May 2012 family report, then the timing of the report in occurring before legal proceedings were commenced is irrelevant.
A subsequent report was not prepared once Court proceedings were commenced.
Ms A has been criticised by Ms Packer for the lack of a further report.
As to the preparation of an additional report, this could have been requested and organised by Ms Packer, but that did not occur.
Further Ms A gave very comprehensive answers in cross-examination, providing an up to date opinion as to the matter.
Ms Packer has also been highly critical of the involvement of Mr Jeffries in the family report process as he is not legally the father in these proceedings.
The lack of legal status is not disputed by Mr Jeffries, nor is he seeking any specific orders in respect to his time with the children.
But Mr Jeffries, despite having no legal status as a father, is a person who has been actively involved in the care, welfare and development of the children, and therefore is an adult who, appropriately, needed to be involved in the family report process.
I find Ms A to be a credible witness and appreciated the concise and forthright manner in which she delivered her evidence.
I give significant weight to the report prepared by Ms A and to her evidence provided in cross-examination.
Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.
The law
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence when making a parenting order the Court must consider what is in the best interests of the child (section 60CA).
In determining what is in the best interest of the child consideration must be had to the principal and additional considerations (sections 60B and 60CC).
As succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:
“Best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child…of this parenting relationship.
When making children’s orders the presumption of equal shared parental responsibility must be considered pursuant to section 61DA and if applicable, section 65DAA must be applied in determining whether equal time or substantial and significant time is to be spent by the non resident parent with the child and whether such an order is in the child’s best interest and is reasonably practical.
In Starr & Duggan [2009] FamCAFC 115, the Full Court discussed at [38] that although the legislation does “mandate consideration of the relevant sections in any particular order there is a logical approach”.
In summary the “logical approach” is to:
a)firstly, make findings taking into account the factors in section 60CC;
b)secondly, consider whether equal or substantial and significant time is in the child’s best interests;
c)thirdly, then determine whether such arrangements are reasonably practical by referring to matters in section 65DAA(5) and the findings made under section 60CC.
The legislative pathway was further explored and clarified by the High Court in MRR v GR (2010) 263 ALR 368.
Application of the law to the issues
Who should have parental responsibility?
Ms Packer is seeking an order for equal shared parental responsibility.
Ms Irwin is seeking an order for sole parental responsibility.
Mr Jeffries is not seeking any order in respect to parental responsibility but supports Ms Irwin in her application.
The presumption of equal shared parental responsibility applies as there have not been any allegations of abuse or family violence.
In determining whether the presumption has been rebutted consideration must be had to whether it is in the children’s best interests for the parents to have equal shared parental responsibility.
Conclusion
I find that the presumption in this matter has been rebutted as it is in the children’s best interest for Ms Irwin to have sole parental responsibility.
I base my findings on the following:
a)The evidence supports that when the parents lived together, whilst major long term issues were the subject of discussion between the parents, it was Ms Irwin who made the decisions and put the decisions into place with Ms Packer supporting the decisions.
b)The evidence supports that since separation Ms Irwin has continued to make the major long decisions for the children and put the decisions into place. Although Ms Packer is at times critical of not being consulted about these decisions, Ms Packer does not raise real issues as to the decisions that have been made.
c)There is nothing in the evidence to support that any of the decisions made by Ms Irwin have in any way been detrimental to the children, with both children being in good health and thriving both academically and in their extra-curricular activities. In cross-examination the report writer observes that Ms Irwin has “made good decisions”.
d)The parents have previously through counselling tried to effectively co-parent but attempts have failed.
e)Ms Packer has not been actively involved in co-parenting of the children for some years.
f)The parents have poor communication as explained by Ms Irwin to the report writer at [14] of the family report.
g)I give significant weight to the report writer’s recommendations both in her report and in cross-examination that sole parental responsibility for the children should remain with Ms Irwin.
h)To now create an equal shared parental responsibility regime between the parents where there is poor communication and room for conflict would be damaging to the children who are already very outspoken in respect to their views as to spending time with Ms Packer.
What should the spend time with arrangements be between Ms Packer and the children?
The spend time with arrangements sought by Ms Packer have changed several times during the course of the proceedings.
As at the date of the hearing Ms Packer is seeking orders whereby there be a build up of time with the children commencing with two hours until, over time, the period builds to every second weekend. By 2014, Ms Packer is seeking half school holidays and special days.
The reason why Ms Packer is seeking structured time is based on her concern that if time is not ordered her relationship with the children will continue to deteriorate, and may reach a stage where she is not spending anytime with the children.
Ms Packer is also concerned that in the absence of structured Court orders that Ms Irwin will not facilitate time between Ms Packer and the children.
Ms Irwin has been consistent in her view that time between Ms Packer and the children should be as agreed upon between the parents.
Ms Irwin does not want an order for structured time as the children will not go, she cannot force the children to attend and if she tries this will be very damaging for the children.
Ms Irwin is also of the view the children need to heal from the trauma caused by the ongoing dispute and the Court process and that unstructured time will assist in this process.
Conclusion
I find, having considered the evidence, that it is in the children’s best interest that time with Ms Packer occur as can be agreed upon between the parents and in accordance with the children’s requests.
I base my findings on the following:
a)The children have been brought up in a household by educated socially aware parents where they have been encouraged to express their opinions and participate in decision making.
b)The children have formed very set views on each of the three adults who have been involved in their life and are very vocal as to their views.
c)The children view Ms Irwin as their “parent” and their “mother”. Mr Jeffries comments at [60] of the family report that the children “want one mother”. The report writer observes at [87] that “the children have a primary and secure attachment to Ms Irwin and she is their mother in every sense of the word”.
d)The children are aware that Mr Jeffries was the donor of sperm that enabled them to be conceived, and he is not viewed by the children as either a father or parent figure but more as a family friend. At [77] [X] comments “I like [Mr Jeffries]. He’s not like a parent. He’s like a friend. He’s fun to be with; nice, like a close friend…..there is no pressure. He’s really helpful.” [Y] at [83] comments that “she didn’t much like Mr Jeffries who she calls [first name omitted] because he doesn’t feel like her Dad”. The children’s views are acknowledged and respected by Mr Jeffries who comments at [58] that he sees the children when “he is invited and doesn’t just drop in”. Ms Irwin at [15] comments that Mr Jeffries is “respectful and low key in his approach” with the children.
e)The children are aware that Ms Packer was living with the mother before separation but do not view Ms Packer as a “parent”. [X] at [69] explains that “…her mother and Ms Packer ‘split up years ago’ and that that she ‘kind of remembered’ Ms Packer living downstairs at their old house.” At [72] [X] comments that Ms Packer “has never been a parent; never been a Mum. Ms Packer doesn’t understand that. She’s trying to be our Mum. She never has been. She just can’t.” [X] at [69] informs the report writer that Ms Packer “used to be ‘like and aunty, like a friend’” but now she thinks of her “as someone I don’t really know.” This view is supported by [Y] at [81] where she states that Ms Packer “feels like a friend’s mother….like a stranger” and that Ms Packer was definitely “not like a Mum.” The report writer, in cross-examination, observes that “[X] stopped seeing herself as Ms Packer’s child years ago.”
f)The children have also expressed this view to Ms Irwin. At [12] Ms Irwin comments “[X] is adamant Ms Packer is not her parent and she has been refusing to spend time with her” and at [13] “[Y] does not regard Ms Packer as a parent either but ‘She gets enticed by the outings and the treats’.’’
g)I accept the explanation provided by the report writer that the reason why the children view Ms Packer more as an “aunt” type figure as compared to a “parent” is because the appropriate attachment between Ms Packer and the children has never been properly formed and it is questionable as to whether such an attachment has ever existed. I give weight to the report writer’s opinion at [93] and [94]:
“it is possible that the source of the current dispute is that these children never formed a child-parent attachment to Ms Packer……Certainly in the present, the children do not appear to be attached to Ms Packer and at least part of the problem is that Ms Packer wants to be a parent to them, and she is not prepared to accept having a family friend or aunt type role in their lives.”
h)As to whether the lack of attachment between the children and Ms Packer is as a result of the absences of Ms Packer in the children’s lives as noted at [97], or is the fault of Ms Irwin, as alleged by Ms Packer, in excluding her from the parenting of the children, or the fault of Ms Packer in not being there for the children as a parent, and only being “sometimes” interested in the children as raised with the report writer by Ms Irwin, is no longer relevant. As observed by the report writer there is a “meshwork of explanations” leading to these dynamics.
i)More than likely both parents are to blame for the family dynamics and certainly the evidence suggests that when the parents physically separated in 2008 that the any bond between Ms Packer and the children was tenuous.
j)Unfortunately Ms Packer has done very little since then to address the issue of the fragile bond with the children.
k)Although Ms Packer recognised the warning signs that her relationship with the children was further declining, she failed to adequately address the situation, laying most of the blame for the fractured relationship, especially regarding [X], on Ms Irwin, rather than accepting responsibility that she herself may be at fault.
l)The subsequent actions, reactions and behaviours of Ms Packer portray a person who has little insight into the needs and views of the children and has resulted in continued damage to the relationship between Ms Packer and the children as demonstrated by the following:
i)Ms Packer has been inconsistent with the time that she has spent with the children. An example is captured at [54] of the family report where Ms Irwin comments that Ms Packer did not organise time with the children in January 2012 and cancelled visits with [Y] in March and April 2012.
ii)Despite assurances to the report writer at [6] that “I drop everything to spend time with the children” in cross-examination Ms Packer admits that there have been times where she has changed proposed arrangements to spend time with the children in order for her to do other things, such as spend time with her partner, Dr W.
iii)Ms Irwin also commented on Ms Packer’s unavailability to spend time with [Y] noting at [10] when organised time with [Y] that it could not be extended about “50% of the time” as “Ms Packer has other commitments and was unavailable.”
iv)Ms Packer lost the trust of the children in the spend time arrangements by not being truthful as to the periods of time the children would be away, by offering time then withdrawing time, by offering time provided certain conditions were met, by returning the children late or causing them to be late resulting in the children having to miss or reschedule other planned activities.
v)During visits Ms Packer has embroiled the children in emotional turmoil by yelling or crying at the children or not provided the children with emotional support when they have been upset and wanting to go home early from a visit. [X] comments to the report writer at [71] “that over time she and Ms Packer stopped getting on and she started saying ‘I don’t want to go’…Ms Packer started yelling and crying and trying to make them go.” At [74] [X] explains that during some visits “Ms Packer ‘gets dramatic’ and ‘shrieks and flaps her hands’ and ‘gets grumpy, yells and gets mean.” and at [75] that “Ms Packer ‘shrieks and gets dramatic. I get very embarrassed’.”
vi)Ms Packer has been dismissive of the children’s feelings by referring to herself as their “Mummy” in front of the children when the children have only associated that term with Ms Irwin. The level of resentment towards Ms Packer’s actions is clear in the discussion [X] has with the report writer at [73] and [75] “Ms Packer wanted to show Dr W that she was our Mum; like an item to be paraded, to show us off, I didn’t like that…….Ms Packer tells everyone ‘These are my girls. I’m their mother’..She is absolutely not my mother. I feel a bit hurt too. Why would she say that? She doesn’t even know me – not at all.” At [89] the report writer comments that some of the childrens’ “resentment and/or resistance towards Ms Packer is because they perceive her as undermining or devaluing their mother’s primary place, for example with the whole complicated discussion about names and by Ms Packer telling strangers that she is their mother.”
vii)Ms Packer has caused the children stress over her insistence in being called “Mummy [omitted]” which has resulted in arguments with the children as set out in [4].
viii)Ms Packer has been dismissive of the children’s sense of security such as leaving them alone whilst Ms Packer and Dr W have been in the bedroom, leaving them unattended at the pool whilst Ms Packer and Dr W have drank wine or causing them to travel in a car without the proper safety restraints.
ix)Ms Packer has exposed the children to adult issues within her relationship with Dr W, such as been overtly affectionate to Dr W or fighting with Dr W in front of the children.
x)Ms Packer has embarrassed the children by treating them younger than their years. [X] complains at [75] of an incident where after the Annie concert in 2012 “they went to the toilet, Ms Packer made a big fuss in front of everyone of grabbing their hands and washing and drying them.” [Y] at [82] complains how Ms Packer “babies me” and “washing me in the shower”.
xi)Ms Packer has not been actively involved in the children’s schooling and extra-curricular activities which has resulted in her missing many of the children’s milestones. Further Ms Packer’s failing to inform the children as to whether she would be in attendance has caused the children undue anguish.
xii)Ms Packer has not been actively involved in special days with the children such as birthdays and Christmases.
xiii)Ms Packer has missed opportunities to improve her relationship with the children, such as refusing to provide [X] with her doona cover and curtains from their first home, even though she knew how much these items meant to [X] and where the items were not being used and in a bedroom of a house no longer occupied by Ms Packer.
xiv)Ms Packer has been inconsistent in her financial support of the children, not always paying child support or paying for their extra-curricular activities except for private health cover.
xv)The unreliability of Ms Packer contrasts sharply with the consistent but non-evasive presence of Mr Jeffries who assists financially and is actively involved with the children in their extra-curricular activities.
xvi)I give weight to the report writer’s observations as expressed during cross-examination that “Ms Packer stopped being a parent years ago” which is supported by Ms Packer’s irregular involvement in the children’s day to day lives.
xvii)Ms Packer is critical of Ms Irwin and her parenting and how she has conducted herself in the midst of the adult conflict. I find that Ms Packer has made her feelings known to the children as is evident in her comment to the report writer at [28] where Ms Packer explains that “it is important that the children ‘know their parents fought for love’.”
xviii)Ms Packer pursued legal action even though she was aware that the children felt that the situation was putting them under pressure, as discussed in the email from Ms Irwin to Ms Packer dated 4 May 2012 (Annexure C to the affidavit of Ms Packer filed 20 June 2012) and throughout the family report.
xix)Ms Packer pursued legal action even though she was aware of the high level of friction that exists between herself and [X]. Ms Packer informed the report writer when discussing [X]’s rudeness to her at [3] of the family report “The messages [X] has had for a long time around me are such that she doesn’t see anything wrong with treating me like that.” [X] in her discussions with the family report writer explains how she feels about Ms Packer. At [76] [X] comments “I try not to be bratty’ but she does not want to spend time with Ms Packer.” At [77] [X] states that she has “a million times better relationship with Mr Jeffries that with Ms Packer.” At [67] the report writer observes “I gained the impressions that [X] in particular, feels forced to the point of rudeness to have Ms Packer accept the strength of her views.”
xx)Ms Packer pursued legal action even though she was aware, at the date of the family report interviews, of the children’s level of resistance to spending time with her as articulated by Ms Packer at [3] “the children are now in a pattern which largely excludes me”.
xxi)Ms Packer pursued legal action even though it was evident from the contents of the family report as to the level of continued resistance and reluctance of the children to spend time with her.
xxii)Ms Packer pursued legal action even though the family report gave clear indicators to Ms Packer that the relationship may improve if Ms Packer was to step back from the situation, not force time to occur with the children and take pressure off the children. At [90] the report writer comments that [X] “may choose to spend time with Ms Packer in the future, if Ms Packer could stop pressuring her and if she could accept a role in their lives as a family friend and/or aunt type figure”. [X] acknowledges this at [76] where she explains “I might change my mind in the future” as to spending time with Ms Packer. [Y] at [80] informs the report writer that regarding visits with Ms Packer that “I like to go if I’m not made to go”.
xxiii)Ms Packer pursued legal action even though the report writer recommended strongly that the Ms Packer not pursue the spend time with arrangements. At [97] the report writer says “While all of this is immensely distressing for Ms Packer and immensely stressful for Ms Irwin, in my opinion it is time for this dispute to finish and for everyone, most of all the children, to be able to move on with their lives.”
m)The children are very precise in their views as to the relationship they want with Ms Packer, views which have been consistently expressed both directly and indirectly to Ms Irwin, to Ms Packer, to Mr Jeffries and to the report writer.
n)[X] has been very direct with Ms Packer as to not wanting to maintain a relationship with Ms Packer as illustrated by the following:
i)[X] had not spent a night with Ms Packer at her home since April 2011.
ii)In 2011 [X] spent time with Ms Packer on a couple of occasions.
iii)In 2012 [X] went on only one outing with Ms Packer to see the musical Annie.
iv)Since May 2012 [X] had ceased nearly all visits with Ms Packer, seeing her only when Ms Packer collects [Y].
v)Ms Packer told the report writer at [3] of the family report that “[X] won’t talk to her in front of Ms Irwin” and that [X] says things to her like “You can’t tell me what to do.”
vi)[X] has specifically excluded Ms Packer from special events, such as her birthday, or informing Ms Packer as to her academic achievements. Ms Packer comments to the report writer at [7] that “I’m not even told when the parties are on”.
vii)[X] has told Mr Jeffries, as captured at [59], that she “doesn’t want a lot to do with Ms Packer.”
o)[Y] has also been directive as to the nature of the relationship that she wishes to maintain with Ms Packer as illustrated by the following:
i)In respect to addressing Ms Packer as “Mummy [omitted]” it is noted at [4] that [Y] in 2011 “found a compromise” and began calling Ms Packer “[nickname omitted]”.
ii)An insight as to how [Y] wants to spend time with Ms Packer is captured at [10] where Ms Irwin comments “…[Y] visits Ms Packer usually once a fortnight, with visits lasting from 4 hours to 24 hours;..[Y] is very ambivalent about the visits and will initially say ‘I don’t want to go’; will agree to a short visit and once she is there, about 50% of the time she will stay longer;..[Y] will only go when Dr W’s two children [A] and [B] are there.”
iii)Mr Jeffries notes at [59] of the family report that [Y] is “ambivalent” as to spending time with Ms Packer and comments that [Y] finds it hard to say “No” to Ms Packer.
iv)[Y] in her discussions with the report writer at [79] explains how she likes the visits with Ms Packer “sometimes” and how she “usually spends the time with Dr W, [B] and [A]” and at [80] “that ….sleepovers are ok if [A] and [B] are there…she likes the children.”
v)At [85] when [Y] was asked to list who was in her family so that the report writer could draw them no mention was made of Ms Packer
p)[X] at [67] informs the report writer “repeatedly” that she “didn’t want to visit Ms Packer who she calls [first name omitted]” and at [76] [X] explains “Right now, I don’t want to see her at all. I want to erase her from my life…. I want to able to choose. Both of us…to be able to choose.” At [90] the report writer concludes that “[X] expressed her views about not wanting to spend time with Ms Packer, in the strongest possible terms.”
q)[Y] at [80] and [81] informs the report writer that she doesn’t like “being made to go “on visits with Ms Packer and “I don’t really like to go.”.
r)Although only young I give significant weight to the views expressed by the children as to not wanting to have structured time with Ms Packer. I give weight to and note the report writer’s observation and description of the children at [67] of the family report as “bright, articulate and well behaved children” who were “consistent and congruent” in their views, and at [78] “I was certainly left in no doubt about the views and opinions of both these children” and to her comment in cross-examination that “[X] has a strong voice in these proceedings.”
s)I give no weight to Ms Packer’s claim that [X] is voicing Ms Irwin’s concerns and not voicing her own views and is acting as her “mother’s confidant” as expressed by Ms Packer at [28(b)] of the family report. I give weight to the report writer’s comments in cross-examination that “[X] has her own anger” towards Ms Packer “without having to carry the mother’s anger.”
t)I give no weight to Ms Packer’s claim that the children are aligned with Ms Irwin and therefore merely voicing Ms Irwin’s views. Whilst I accept, as does the report writer, that alignment may well exists between the children and Ms Irwin because of their primary attachment and bond to her, it does not follow, nor is it supported by evidence, that Ms Irwin has in any way influenced the views held by the children.
u)
Despite the intensity and clarity of the children’s views in whether they wish to see Ms Packer and how they do not recognise her as a parent figure, it is evident from her cross-examination that Ms Packer struggles to comprehend or accept this as the children’s position. This is further supported by
Ms Packer failing to inform Dr W of the children’s views, with
Dr W in her evidence admitting that she was not told that the children did not want to spend time with Ms Packer.
v)I further accept that a structured order requiring the children to attend time with Ms Packer is likely to weaken the already fragile relationship between the children and Ms Packer. As termed by Mr Jeffries at [60] of the family report “The more Ms Packer pushes, the worse it becomes.” I note Mr Jeffries concerns as expressed at [61] that “if the children were somehow forced to spend time with Ms Packer….[X] would react against it and get angry and lock herself in her room” and that [Y] would miss her mother “greatly”. I give weight to the report writer’s assessment at [90] “In my opinion, it would be counter-productive and damaging to somehow force [X] to attend visits with Ms Packer.” and at [91] “In my opinion, it would not assist [Y]’s relationship with Ms Packer if she was somehow forced to spend longer periods of time with her. She would become resistant and resentful like [X]…”.
w)I accept that an order which requires the children to spend structured time with Ms Packer will result in the children being forced to attend and will result in stress and possible long term damage for the children. The report writer explains in cross-examination that [X] is likely to become “bratty, angry and spiteful”, that her behaviour will impact on [Y], that [X] may run away and that the children and Ms Irwin will become stressed, and this may be damaging to their relationships. I find it a concern that Ms Packer does not comprehend this as being a likely outcome if an order for structured time is made.
x)I give significant weight to the report writer’s comments in cross-examination that if structured time is ordered that “[X] won’t go and [Y] will follow her lead” and “that it will just result in further Court proceedings.” and that “there is no point making orders that cannot be abided by.”
y)I find that it is not in the best interests for the children for an order to be made whereby only [Y] spends structured time with Ms Packer. I give weight to the view expressed by the report writer at [92] of the family report that “[X] and [Y] share a close sibling bond and should not be separated for extended periods.” Further I give significant weight to the concern raised by the report writer at [91] that [Y] “would not cope well with extended separations from her mother.”
z)I give weight to the report writer’s recommendation that the only possible order that will work for the children is an order that time occur as can be agreed upon between the parents or in accordance with a request by the children.
aa)I accept the report writer’s view that “not everything can be repaired” and that “if repaired it could cause damage” by counselling. I find that in this particular matter, as described by the report writer in cross-examination “where the relationship has irretrievably broken down” that counselling between the children and Ms Packer would not be in the children’s best interests, is not likely to be successful and is likely to cause the children stress.
bb)I give no weight to Ms Packer’s claim that her relationship with the children has been undermined by Ms Irwin, as this is not supported by the evidence, nor is it supported by the report writer.
cc)I accept that in all of the circumstances Ms Irwin has done everything she can to facilitate a relationship between Ms Packer and the children and that Ms Irwin will continue to encourage the relationship where time is to occur as agreed upon between the parents or in accordance with the children’s wishes.
dd)I accept that Ms Irwin is a good mother and give weight to the comments of the report writer at [95] “The reality is that Ms Irwin is providing the children with an excellent standard of care and the children are a credit to her. She is a very involved and devoted mother and this level of care and attention is not inappropriate or ‘smothering’ while the children are of primary school age.”
I therefore find that it is in the children’s best interests that an order be made whereby time occur between Ms Packer and the children as can be agreed upon between the parents or in accordance with the requests of the children.
I have no doubt that Ms Packer will be upset by this decision, but it is the only decision able to be made given the strong views expressed by the children and the state of the children’s relationship with Ms Packer.
It is unfortunate for all concerned, and the situation is best summed up by the report writer’s comment during cross-examination that “it is sad this family is in Court – there was for many years friendship and goodwill lost by the applicant applying to the Court”.
The report writer’s prediction is that once the matter is out of the Court system, and the pressure is taken off the children to spend time with Ms Packer that the situation between the children and Ms Packer will improve.
This will only be possible however if Ms Packer accepts and embraces the Court ruling and starts to listen to the children, and respect their views. Hopefully Ms Packer will use this opportunity as a fresh start to rebuild a trustful understanding with the children.
Additional issues
The first issue is the involvement of Mr Jeffries in the Court proceedings.
Much was made of Mr Jeffries lack of legal status as the father of the children.
I find that as a person actively involved in the care, welfare and development of the children pursuant that it is appropriate for
Mr Jeffries to be part of the Court proceedings.
Further it was suggested that Mr Jeffries may be trying to displace
Ms Packer as the parent.
I agree with the comment of the report writer in cross-examination “That’s just silly” and that “children can have three parents.”
The second issue is in respect to the children’s names.
Both children are registered on their respective birth certificates as having “Packer” as one of their middle names.
Whilst the parents discussed during the relationship for “Packer” to be hyphenated to “Irwin” so that the children shared the last name of “Packer-Irwin” this never eventuated.
Ms Packer is critical of Ms Irwin not promoting her name of “Packer” with the children and enrolling the children using “Irwin” as the surname.
I find that as the children’s names have been registered with “Irwin” as the surname and “Packer” as a middle name then, provided that the full details of the children’s names are supplied as they appear on the birth certificate, that is sufficient. This issue has been made the subject of an order.
I further order that Ms Packer is to be included on the Birth Certificate as the other parent.
I also direct that Ms Irwin include Ms Packer in any documents which require the names of the parents.
As Ms Irwin has sole parental responsibility, I have imposed a restriction that name change cannot occur by Ms Irwin without the consent first had and obtained from Ms Packer.
The third issue is that Ms Packer is concerned that an order for time to occur as agreed upon between the parents will not be facilitated by
Ms Irwin.
I find that this concern is not founded in the evidence. Ms Packer, in cross-examination, admits that for many months time between
Ms Packer and [Y] has been successfully negotiated through discussion with Ms Irwin.
There is nothing to indicate or support that this ability to negotiate will deteriorate between the parents or not be facilitated by Ms Irwin.
The fourth issue as raised by Ms Packer is whether different regard may have been given to the matter if the issues were between a heterosexual couple as opposed to a same sex couple where the intervener is the sperm donor.
I find this suggestion ludicrous.
This matter has been considered on its own merits with the relevant factors as contained in sections 60B and 60CC given careful consideration in determining what is in [X]’s and [Y]’s best interests.
The fifth issue is whether counselling may assist in the parents’
co-parenting.
Several attempts have been made as to counselling in the past.
The report writer, in cross-examination, was not optimistic as to counselling assisting the parents.
In view of the orders made I see no benefit in imposing a Court order for counselling, although the parents can choose to attend counselling if they wish to.
The final issue is costs.
If parties wish to apply for costs then an application can be made in accordance with the legislation.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge L.Turner
Associate:
Date: 1 July 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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