Parker & Elliott
[2003] FamCA 990
•18 July 2003
[2003] FamCA 990
FAMILY LAW ACT 1975
| IN THE FAMILY COURT OF AUSTRALIA AT BRISBANE | No. BRF3995 of 2002 |
| IN THE MATTER OF | PARKER Applicant Father |
| AND | ELLIOTT Respondent Mother |
| Coram: | The Hon. Justice Rose |
| Dates of Hearing: | 14, 15 & 16 July 2003 |
| Date of Judgment: | 18 July 2003 |
| Date of Orders: | 18 July 2003 |
REASONS FOR JUDGMENT
THE HONOURABLE JUSTICE ROSE
| Appearances: | Mr Guttridge of Counsel instructed by Murdoch Lawyers, 138 Margaret Street, Toowoomba Qld 4350 (DX 41124 Toowoomba), appeared on behalf of the applicant father. |
| Ms Sweetapple of Counsel instructed by Martells, Lawyers, Level 12, K Tower, 269 Wickham Terrace, Fortitude Valley Qld 4006, appeared on behalf of the respondent mother. |
CATCHWORDS:
FAMILY LAW - PARENTING - contact - parental alienation syndrome - contravention
FAMILY LAW - PROPERTY SETTLEMENT - Capital Gains Tax
INTRODUCTION
In these proceedings [Mr] Parker (who for convenience I shall refer to as “the father”) sought parenting and property settlement orders in accordance with his Amended Application filed 25 October 2002.
The orders sought by the father were amended by leave in accordance with the Minutes of Orders which became Exhibit 9. Those orders as sought were in substitution of the amended application so far as parenting orders were concerned.
During the course of the hearing, I was informed by the father’s counsel that a residence order was no longer being sought.
The respondent, [Ms] Elliott (who for convenience I shall refer to as “the mother”) also sought parenting and property settlement orders in accordance with her Amended Response filed 22 October 2002.
The amended response was amended by leave in accordance with the Minutes of Orders, which became Exhibit 8.
On 16 July 2002 during the course of the hearing, pursuant to discussions between the parties, certain orders were made by consent in relation to the child of the parties and those orders became Exhibit 12. So far as property settlement was concerned, matters were left open in terms of paragraph 17 of Exhibit 12 that dealt with a proposed indemnity of each party in relation to Capital Gains Tax. The issue that remained for determination by me so far as the parenting proceedings were concerned was whether or not a contact order should be made in favour of the father in relation to the eldest child of the proceedings, and if so on what terms.
The proceedings also included an Application filed on behalf of the mother on 23 May 2003 in which it was alleged that the father had contravened orders in relation to the return of the two children who are the subject of the proceedings.
Following further instructions obtained by counsel for the mother, I was requested to proceed to determine that application at the same time as orders were being made in relation to the contact order as sought by the father and the parties’ respective applications for property settlement orders. That course was concurred by counsel for the father.
The parties cohabited for a period of approximately 4½ to 5 years commencing during 1997.
They married on … 1999 and finally separated on … 2002.
So far as I am aware, the marriage of the parties has not been dissolved.
The father is 31 years of age having been born on … 1971.
The mother is 36 years of age having been born on …1966.
Each of the parties is in full-time employment. The father is with the Australian Defence Force, and the mother is with the Department of Defence.
The two children who are the subject of the proceedings are:
(a)N who is 8 years of age having been born on … 1995. N is the child of the mother’s previous relationship with [Mr H].
(b)B is 3 years of age having been born on … 2000 and is the child of the relationship between the parties.
The two children reside with the mother and have done so since the parties separated [in 2002].
The father has had contact with the two children for varying periods of time.
I intend to proceed to determine the proceedings for a contact order before determining the property settlement proceedings.
PROCEEDINGS IN RELATION TO CONTACT
Section 65E of the Family Law Act (“the Act”) makes it mandatory for a child’s best interests to be the subject of any parenting order that might be made. The child’s best interests are the paramount consideration.
Section 60B of the Act sets out the object of Division 7 of the Act and the underlying principles which include the right of a child to have contact with a parent, the parent’s obligation and opportunity to participate in the development and progress of the child and other matters which further the development of the child. All those matters are subject to what is sometimes described as the over-arching obligation, namely to further the best interests of the child.
SECTION 68F(2)
For the purpose of determining what is in the best interests of N, section 68F(2) sets out various matters that I am required to consider.
I will now proceed to deal with each of those matters in the context that the only order that I am asked to consider is whether or not there should be a contact order in favour of the father with regard to N.
The wishes of the child
The evidence before me so far as the parties are concerned, is that from the stand point of the father, N has been inconsistent in both her expression of wishes and the manner in which she has done so.
The father’s evidence, which I accept, is that prior to the parties’ separation he had a reasonably good relationship with N who was affectionate towards him and that affection was reciprocated. There were times when N showed contrary behaviour, but that was towards the end of cohabitation and the father’s case is that this was influenced by the mother’s attitude towards him.
The mother’s case is that since separation N has consistently expressed her wish either directly or indirectly not to be involved in contact with the father. The mother also contends that prior to separation N was treated differently by the father compared to B and that such treatment impacted upon N with the result that there was a decreasing relationship in terms of its quality between N and the father.
I have been assisted in these proceedings by expert evidence given by the counsellor, Mr O and by Ms P, a social worker engaged in a domestic violence unit with whom N has consulted for almost 12 months. Each of them has given evidence, in written form and orally and cross-examined. I accept the evidence of Mr O on this issue. The substance of the matter is that N has in one way or another expressed a wish to no longer have contact with her father. The surrounding circumstances are the influence over N by the mother’s attitude, and what N contends to be being treated differently by the father compared to B, as well as the physical and emotional abuse by the father. I will turn to those matters subsequently in this judgment.
Suffice to say that Mr O’s evidence also referred to information given to him by the father that he has struggled at times to establish an appropriate level of relationship with N due to her headstrong manner and erratic attitude. He claims that this is principally due to the mother’s influence, and further that the relationship had sunk to a level where it should not continue any longer without there being an implicit change of the mother’s attitude and perhaps some counselling to effect an improvement in N’s relationship with him. I infer from all of that evidence, together with the evidence of Ms P, that N has consistently expressed a wish not to have contact with the father, and that is the wish that N has maintained for some considerable period of time.
A matter that is relevant to N’s wish, in so far as the weight it should be given, is whether that wish has been brought about by what counsel for the father has described as “parental alienation syndrome”. So far as that matter is concerned, I was referred to the Full Court’s decision in Johnson in which part of the judgment recites the contents of an article prepared by a psychologist listing the symptoms of “parental alienation syndrome”. I am not prepared to find that the syndrome applies in this case, if indeed there is such a syndrome. Counsel conceded, quite properly, that the question of a syndrome as described is a matter of controversy. None of the experts who gave evidence before me gave any evidence at all of whether there is indeed such a syndrome, and if there is whether on the material that each has been furnished, symptoms consistent with such a syndrome have manifested themselves. As a result, I am not in a position to make any findings in that regard. That does not, however, prohibit me from making findings as to alienating behaviour by one party or the other.
There is no doubt, and indeed it is conceded by counsel for the mother, that the mother has a negative attitude to the father and that the probabilities are that N has been sensitive to that attitude and perhaps even subconsciously influenced in that regard in so far as her relationship with the father is concerned.
However, that is not the only matter which may impact upon N’s wishes. There is also considerable evidence before me of the father’s physical and emotional abuse of N.
The mother’s case is that not long prior to separation he poked N in the chest and leaving, on one view of the evidence, some bruising, while on another view, little if any bruising. On another occasion the mother alleges the father grabbed N by the ear and pulled her through a portion of the house.
The father in his oral evidence at first denied those allegations. He was then referred to portions of alleged admissions made by him to the counsellor. Having those matters drawn to his attention, the father conceded that he may well have touched N on the chest, although was ambivalent to it being described as “poking”, and that contrary to his previous evidence he had indeed grabbed N by the ear. However, he contended he had not dragged her through part of the house in that fashion.
There is no doubt on his evidence that he has been aggressive to N when he was under some strain in terms of settling B. That aggression was in the form of screaming at her and perhaps some aggressive pushing of her. I will refer in further detail to the circumstances to which that gave rise.
However, those matters together with the evidence of the mother that N witnessed alleged domestic violence involving assaults by the father on the mother at the time of separation, together represent the platform of the wishes that the child has expressed. Those matters, together with the mother’s attitude to which I have referred, represent the basis upon which N has expressed her wish.
I find that N’s wish is a sincere and genuine expression, although brought about by the circumstances to which I have just referred.
The nature of the relationship of N with each of the parties and other persons are concerned
There is no doubt that N has a loving and close relationship with her mother.
So far as the father is concerned, I find that prior to separation their relationship was generally a good one. However, it deteriorated in a short period prior to separation. The relationship then became and continued to be an ambivalent one, at times showing affection between N and the father and at other times being a difficult one as the father himself concedes.
The effect of changes in N’s circumstances including separation from either party
This is not an issue that arises in this case.
Its only other possible relevance so far as separation in the sense of discontinuance of contact. It is in that sense that I address this particular topic.
It is quite clear on the evidence of the psychologist and social worker, Mr O and Ms P that N is experiencing much emotional pressure so far as her continued contact with the father is concerned and that such pressure is likely to continue in the foreseeable future unless contact either ceases or is improved, perhaps by a change of attitude of the mother and/or professional counselling.
Mr O who gave his evidence in a sensitive, thoughtful fashion, and all of his evidence I accept whether by way of the family report or orally, was at a loss to suggest how that contact may be improved given the dynamics as between the father and the mother and the deteriorating relationship between the father and N. Other than suggesting counselling, he was unable to make any other constructive suggestion. Should counselling proceed, of course it is difficult if not impossible to know how successful it is likely to be, let alone when any improvement can be reasonably foreseen.
The practical difficulty and expense of N having contact
These were not matters of any great moment during the hearing or indeed, during submissions.
The capacity of each parent to provide for the needs of N
There is no issue that each of them has the capacity to provide for N’s physical and intellectual needs.
With regard to N’s emotional needs, the father’s capacity to do so is very limited. That is a product of his own inability at times to relate to N without giving vent to impatience or frustration, such as screaming or treating N perhaps differently to B. In addition, he is hamstrung as it were, by the attitude of the mother, which I find has been one of paying lip service only to encouragement of N in her relationship with the father.
The father also has difficulties in overcoming both the allegations of past domestic violence which I find did occur in accordance with the mother’s evidence to which I will refer subsequently in this matter.
So far as the mother is concerned, there is also no issue regarding her capacity to provide for N’s physical and intellectual needs. I find that her capacity to provide for N’s emotional needs has been limited in that while she may well have said all that was expected of her in terms of encouragement for contact, her very negative attitude to the father is something which is unlikely to have been hidden from N, and N was sensitive to it. Indeed, the evidence of Mr O is that it has been a significant factor in relation to the difficulties that have emerged in N’s relationship with the father
N’s sex, maturity and background
They are matters of no controversy. N is a young girl aged 8 years of age. There are no other characteristics to which my attention was drawn.
The need to protect N from physical or psychological harm, including family violence
These matters are relevant to a high degree in this case.
N has allegedly witnessed domestic violence as between the father and the mother. That was in the circumstances surrounding the parties’ separation in April 2002. The mother gave detailed and in my view, plausible evidence of the assaults by the father on her in the presence of N as well as B. Those assaults, on her evidence, were severe. The police attended. There was nothing put to the mother to suggest that she had fabricated that evidence, or exaggerated it. I find that her evidence was given in a genuine and unshakeable way. I accept her evidence regarding the description of the assaults occasioned by the father on her and that they took place in the presence of both of the children at the time of the parties’ separation.
I also find that N has been subjected to violence from the father in terms of her being poked in the chest prior to separation, her ear being grabbed and being pushed by the father on an occasion of contact.
Whilst one can never excuse physical or emotional violence, it became clear to me on the father’s evidence that he was a person who was overcome by the frustration in terms of his family break up and the personality differences between himself and the mother. He has also suffered from his lack of ability to properly relate to N, especially in circumstances where he has had the care of the parties’ very young child who at times has needed settling. As previously emphasised, that does not excuse the father’s behaviour, but rather provides some explanation of the circumstances in which it occurred.
To the father’s credit, he has attempted to do all that can reasonably be expected for the purpose of furthering his relationship with N, as well as B, subject to occasions of lack of control to which I have referred. Unfortunately, this is of little consolation to either him or N because the outcome is that N has not only expressed a wish to be relieved of contact, but also the father has openly informed the Court counsellor that matters generally speaking have deteriorated to such a level in terms of his relationship with N, that they could not continue in that way without the whole relationship being lost.
The responsibilities of parenthood and the attitude to N
Each of the parties has fulfilled the responsibilities of parenthood, subject to the power struggle in which they have been engaged for a considerable period of time on the evidence of Mr O, and the father’s attitude to N and his responsibilities to ensure that she did not suffer any type of abuse from him whatsoever.
An order least likely to lead to the institution of further proceedings in relation to N
It is my view that an order, which does not provide for contact is least likely to lead to the institution of further proceedings.
A contact order is one, which for the foreseeable future is likely to result in a perpetuation of the problems that exist in the relationship between N and the father. However, no such order is less likely to lead to the institution of further proceedings as complaints and the reaction of N if contact takes place is more likely to provide the basis for further proceedings being instituted.
Other relevant matters
N is continuing to consult Ms P, with whom she has been consulting and receiving appropriate advice during the past 12 months.
N is only 8 years of age. I take into account that N is otherwise showing good signs of progress in terms of her social and academic development.
The question is whether or not a contact order will enhance or impede that development.
I also take into account the evidence of Mr O that a contact order for N in terms of the difficulties that have existed between the father and N, to which earlier reference has been made, might end up influencing in an adverse way the relationship between the father and B as she gets older.
CONCLUSION
I have concluded that a contact order should not be made as to do otherwise would not promote the best interests of N, which is the paramount consideration.
N is still very young, only 8 years of age and she has had to cope with the break-down in the relationship between the mother and father, witnessing domestic violence only some 15 months ago, as well as herself suffering some abuse from the father, albeit that it may not have been intentional but rather an expression of frustration or impatience on his behalf.
N continues to live with the mother, of that there is no issue.
The mother’s adverse attitude to the father shows little sign of abating notwithstanding the efforts that she claims to make in terms of encouraging N, the subject of findings earlier made by me.
N is currently receiving professional assistance.
Given that I am required to make an order that is in the best interests of N rather than in the best interests of the mother or the father, I have concluded that orders should only be made which promote N’s best interests, rather than potentially creating obstacles in that regard. It cannot be in N’s best interests to force her on contact in circumstances where she has consistently shown a well seated antipathy and has required professional consultations to help her overcome the pressures that such contact create. As previously emphasised, this is not entirely due to the father. Nonetheless, the fact is that N lives with her mother who has the attitude to which I referred to earlier. The mother’s attitude, to some extent, is understandable in terms of the domestic violence that she has suffered together with the need to cope with N’s reactions to contact. It is of no assistance to the relationship between N and the father to have one based on fear, so far as the child is concerned, because that will only create more deep-seated resentment, apart from the implications that it might have in terms of his relationship with B.
The parties are urged to co-operate in terms of attending an appropriate parenting or other counselling course to improve communication between them.
Regardless of the history of their disputes and the ongoing power struggle, a fact of life is that they will have to relate to and make arrangements with each other for B for many years to come. Unless they both make a sincere effort in terms of seeking and obtaining as well as following professional assistance, then the relationship that they each have not only with N but with B, may well be placed in jeopardy. I will not make any orders in that regard. In my view, the parties are intelligent, well educated and mature people who have to assume responsibility for their actions, and of their own volition seek professional guidance rather than being forced to do so, if their future relationship is to have any realistic hope of improvement.
PROPERTY SETTLEMENT PROCEEDINGS
…..
ORDERS
The orders that I make are as follows:
1.That all outstanding applications for parenting orders including orders for contact sought by the father with N born … 1995 be dismissed.
2.That the Application for Contravention of Child Order filed on behalf of the mother on 23 May 2003 be dismissed.
3.That the parties sign all documents and do all acts and things necessary for the purpose of ensuring a division of the property of the parties represented by the proceeds of sale of properties at … and …. currently held in trust for them by their respective solicitors be divided in the proportion of 52.5% in favour of the mother and the remaining proportion in favour of the father.
4.That each of the parties pay an equal share of such Capital Gains Tax that may be levied on them both in respect of the sale proceeds of the …property.
5.That all documents produced on subpoena may be returned to the person who produced the same.
6.That the proceedings be removed from the Active Pending Cases List.
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Standing
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Appeal
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