Pattison and Peet
[2012] FMCAfam 1327
•23 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATTISON & PEET | [2012] FMCAfam 1327 |
| FAMILY LAW – Parenting – severe deterioration of relationship with father – concerns as to mother’s support of such a deterioration – consideration of children’s best interests and whether ‘prescriptive orders’ were appropriate – consideration of strong recommendation in Family Report – noting lack of respect, trust and communication between parents – orders for sole parental responsibility to vest in mother – no orders for time with father other than as requested by children – leave to release reasons to children’s school guidance officer. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DA |
| Applicant: | MR PATTISON |
| Respondent: | MS PEET |
| File Number: | CSC 420 of 2011 |
| Judgment of: | Coker FM |
| Hearing date: | 22 November 2012 |
| Date of Last Submission: | 22 November 2012 |
| Delivered at: | Cairns |
| Delivered on: | 23 November 2012 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Wilson |
| Independent Children’s Lawyer: | Lehmann Featherstone |
ORDERS
That except as otherwise stated, the Mother have sole parental responsibility for the major long term issues for the children, [X] born [in] 1995, [Y] born [in] 1997 and [Z] born [in] 1999 including but not limited to:
(a)their education (both current and future);
(b)their religious and cultural upbringing;
(c)their health;
(d)changes to their living arrangements that make it significantly more difficult for the children to spend time with each parent.
That the Mother advise the Father in writing at least 21 days prior to making any long term decision to provide the Father the opportunity to consider the decision and provide any response in writing. The final decision will be that of the Mother.
That the children live with the Mother.
That the Mother advise the Father as to the name/s and contact details of the children’s medical practitioner/s and details of any medical practitioner/s providing treatment to the children in the future. The Father shall be at liberty to contact the children’s medical practitioners to ascertain the children’s welfare from time to time.
That the Mother keep the Father informed as to the school/s the children are attending from time to time. The Father is at liberty to contact the school/s direct to obtain copies of school reports and details as to the children’s progress from time to time.
That the Mother shall advise the Father of any emergency medical procedure concerning any of the children as soon as practicably possible and within 24 hours of any such attendance.
That neither parent denigrate the other parent in the presence or hearing of the children and use their best endeavours to ensure that no other person denigrates the other parent in the presence or hearing of the children.
That the Mother and Father keep each other informed of their residential address and telephone contact numbers, and in particular the Mother provide to the Father the telephone numbers for the children and advise of any change to same within 7 days of the change.
That within 7 days of the date of this order, the Mother arrange a Hotmail address for the children and communicate such Hotmail address to the Independent Children’s Lawyer for the purposes of the Father communicating with the children.
That in the event that the children indicate a wish to re-establish contact with their Father, then the Mother shall support same.
That the Father be at liberty to send the children letters, cards and presents and that the Mother ensure the children receive same.
IT IS FURTHER DIRECTED:
That the Reasons for Judgment be made available to the children’s school, specifically for the attention of the Guidance Officer, with a request that the Guidance Officer assist in any way possible to encourage and facilitate the children’s relationship with their Father and additionally, a request that the Independent Children’s Lawyer communicate and meet with the children and, if considered appropriate by the Independent Children’s Lawyer, with the assistance of a Family Consultant of the Court, for the purposes of explaining to the children, that their Father loves them and wants a relationship with them.
That the Independent Children’s Lawyer be discharged 28 days from today.
IT IS NOTED that publication of this judgment under the pseudonym Pattison & Peet is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 420 of 2011
| MR PATTISON |
Applicant
And
| MS PEET |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to two young boys, [Y], born [in] 1997, and therefore 15 years of age and [Z], born [in] 1999 and therefore 13 years of age. The boys, in fact, have an older brother, [X], aged 17, nearly 18 years of age and whilst technically still a child pursuant to the definitions that are afforded in respect of determination of adulthood and responsibility, no orders are sought in relation to that child.
There are, however, orders which were put in place in 2004. Of course, at that time the children were all eight years younger. Consequently, [X], at that time was nine, [Y] was seven and [Z] was only five years of age. Those orders provided for the parents of the children, Mr Pattison, whom I shall refer to as the father, and Ms Peet, whom I shall refer to as the mother, to have equal responsibilities in relation to the children and to the determinations to be made with regard to them, as well as to have equal time with the children.
Arrangements were in place from 2004 for there to be, what is commonly referred to, as a week about arrangement in relation to the parenting of the children. Those arrangements continued to operate for about three years or so until, by agreement, circumstances changed with the child, [X], going almost entirely on a permanent basis into the care of the mother.
[X] appears to be a troubled young man. Evidence is available in relation to those proceedings which certainly would suggest that whilst he is clearly an intelligent child, having, in fact, been noted as dux of his grade 12 class this year, he has also come to the attention of the police in a number of respects with regard to, what I might call, at the very least, antisocial behaviour. He has been involved in scuffles with other students, tragically, it would seem, students younger than him or girls and that, of course, gives rise to real concern in relation to his future because of issues which must be considered in relation to criminal behaviours and matters of that nature.
It is also clear that at 17 years of age, he is using marijuana and does so with the knowledge of the mother. Whether it occurs within the household that he shares with the mother, or not, is an issue of concern, but one must obviously be mindful of the fact that it is the mother who has, since 2007, been primarily, if not exclusively, responsible for the nurture and care of the child. Whilst she may have some criticisms of the father for not being there, it is hypocritical in the extreme to suggest that his lack of presence and influence upon the child outweighs in any way the obvious impacts of her behaviours and actions, in relation to the parenting of the child.
The mother, for example, acknowledged in evidence that was given yesterday, that she continues to use marijuana. She says it is for the purpose of pain relief, having difficulties with her back ailment, but it flies in the face of the very real concerns that arise whether there is a medical reason, and, of course, there is no evidence provided in that regard or not. The fact is that until such time as a medical dispensation were to be provided, and I am not sure that that has occurred, then the mother acts in a criminal manner.
She continues, therefore, to show the children that a disrespect of the law is a fact that needs not be troubling for them and the obvious concerns that arise is, in respect of [X] at least, that he already, at 17 years of age, has come on a number of occasions to the attention of police. He has been charged with serious offences including assault occasioning grievous bodily harm, and whilst he may not have been convicted, as the mother seems to emphasise, the fact is that it is the first step, but one hopes the last step, in a slippery slope that could lead to very real concerns, in relation to that child.
There are far more pressing concerns that exist in relation to the children [Y] and [Z], however. Whilst [X] went into the care of his mother almost exclusively in 2007, the two younger boys continued for some significant time, to spend shared time with their father and their mother. That appears to have generally worked well and, in fact, the evidence of the father, which I accept, was that there was a degree of flexibility and cooperation that existed, there being occasions, for example, when the mother had personal needs or reasons to be absent and he spent longer periods with the children as well as occasions where, because of work and commitments of that nature, he was required to be absent and by agreement the children spent longer periods with their mother.
It is not an uncommon occurrence in separated families for such arrangements when the parents are child-focused to make such internal organisational changes, and it is appropriate. Unfortunately, it would seem that a little over 18 months or so ago, things changed radically. What might be called a small matter of a dispute in relation to the use of a mobile phone in the father’s household was blown out of all proportion.
It led to a situation where the children either intentionally or unintentionally perceived that they were no longer welcome at their father’s residence. They perceived that he was an angry and determined man who was not intending to allow them to live their lives to any real extent the way they wanted and, in fact, was a harsh disciplinarian.
It then became, by extrapolation, unfortunately, I think, a situation where the children perceived the father to be an alcohol user and abuser, to be a person who, when under the influence of alcohol was a harsh disciplinarian, both physically and emotionally, and that perception unfortunately seems to have easily been adopted by the mother and fostered in relation to ensuring that the children’s views of their father were almost entirely of a negative nature.
What it meant was, that following this dispute the boys went into the care of their mother and, tragically since that time over a year or more ago, they have had virtually no interaction, whatsoever, with their father. It is a tragic situation because, whilst I have already spoken of the situation existing with regard to [X] and inappropriate and anti-social behaviours on his part, there also seems to now be evidenced, at least in the case of [Y], further concerning behaviours including self-harm and circumstances where he is placing on Facebook pages, indications of an intent to consider suicide, to end his life at the very beginning of what should and could be a very great line of achievement for the child.
It is a tragic situation and it is one that no doubt both parents are disturbed by, but one which both parents have, to differing degrees, contributed to.
As a result of the breakdown in the relationship between the father and the boys, he filed an initiating application in which he sought orders in relation to enabling him to have a relationship with the children. He did not seek the reintroduction of the shared-care arrangement which had been in place until 2011, but at least sought continued involvement in the children’s lives.
The orders that he proposed as contained within his initiating application filed 16 May 2012 were in these terms:
(1)Both the mother and the father, in consultation with each other, have equal shared parental responsibility for decisions concerning the long term care, welfare and development of the children [Y] born [in] 1997 and [Z] born [in] 1999 (“the children”).
(2)That without limiting the parental responsibility of either parent pursuant to these orders, each parent shall keep the other informed of and shall properly consult with respect to any significant parenting issues affecting the children.
(3)That for the purposes of these orders a significant parenting issue is:--
(a)Any medical or health matter concerning the children with both parties to be equally able to access medical personnel and the medical file of the child, including immunisation certificates and the like;
(b) Any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)Matter relating to the education of the children including, but not limited to, the choice of school and curriculum and the provisions to the other parent of all school reports, school photographs, and all communication from the children’s schools;
(d)Disciplinary matters other than of a trivial nature;
(e)Matters concerning the social development and sporting activities of the children;
(f)Generally, any matter regarding the said children in respect of which a parent should be informed of or consulted with respect to having regard to the provisions of Part VII of the Family Law Act 1975. l
(4)On at least one occasion each fortnight, the mother shall provide to the father a letter or email a brief update of the children’s circumstances including any information as to the children’s medical, psychological or general health and as to any matters relating to the children’s education or extracurricular activities.
(5)The children shall live with the mother in [omitted].
(6)The children shall spend time with the father as follows:-
(a)At all times as may be agreed between the parties
(b)Between 9.00am and 5.00pm each alternate Sunday
(c)Between 12 noon and 5.00pm on each of the children’s birthdays
(d)Between 12 noon and 5.00pm on Christmas Day each year
(e)Between 9.00am and 5.00pm each Father’s Day
(f)By telephone at all reasonable times
(7)Neither the mother nor the father shall denigrate the other party in the presence of hearing of the children.
(8)The mother and the father shall use their best endeavours to ensure no other person denigrates the other parent in the presence of hearing of the children.
(9)Neither party shall consume alcohol to excess while caring for the children and each party shall ensure no other party does so in the presence of the children.
(10)The mother and the father shall keep each other informed of their residential address and telephone contact numbers and advise each other within 7 days of any change of address or telephone contact.
(11)The mother shall advise the father of the name and contact details of the children’s medical practitioner and keep him advised of the name and contact details of any medical practitioner providing treatment to the children. The father shall be at liberty to contact the children’s medical practitioner to ascertain the children’s progress from time to time.
(12)That each parent shall inform the other parent of any emergency medical procedure concerning the children, including any attendance by them at a hospital or doctor/medical centre whilst the children are in the care of that parent as son as practicably possible and within not more than 3 hours of any such attendance.
(13)Both parents shall be at liberty to attend school events to which parents are invited.
(14)Both parents are to be responsible for taking the children to any extracurricular activities in which the children involved when the children are in their respective care.
Basically, what the father proposed was his continued involvement in the decision-making process, with regard to the children’s long-term care, welfare and development. In other words, that there should be equal shared parental responsibility and whilst the children were to live primarily with their mother, he proposed that with respect to [Y] and [Z], that he should have the opportunity to spend time with the children at all reasonable times and then went on to particularise quite limited times with the children but with a hope, no doubt, that there would be growth and development in those times.
He proposed a period of eight hours each alternate Sunday and time with the children for five hours on their birthdays, on Christmas Day and for eight hours on Fathers Day. He also proposed that there should be telephone communication at all reasonable times.
The father’s proposals in relation to this matter were, I think, well considered and sensible. He did not seek to rush the boys back into a situation where, however they may have come to perceive it, they felt that they were not welcome and that is to his very great credit. He sought to reintroduce himself into the children’s lives and to be involved, which is an appropriate and proper parental consideration of the needs of the children. The father’s position in relation to the matter remains generally unchanged from that which was detailed in May of 2012.
The mother filed a response in relation to the proceedings on 5 July 2012. In that, she sought orders with regard to the parenting of the children which were in these terms:
(1)That without limiting the parental responsibility of either parent pursuant to these orders, each party shall keep the other informed of and shall properly consult with respect to any significant parenting issues affecting the children.
(2)That for the purposes of these orders a significant parenting issue:
(a)Any medical or health matter concerning the children with both parties to be equally able to access medical personnel and the medical files of the child, including immunisation certificates and the like;
(b)Generally, any matter regarding the said children in respect of which a parent should be informed of or consulted with respect to having regard to the provisions of Part VII of the Family Law Act 1975.
(3)On at least one occasion each fortnight, the mother shall provide to the father a letter or e-mail a brief update of the children’s circumstances including any information as to the children’s medial, psychological or general health and as to any matters relating to the children’s education or extra curricular activities.
(4)The children shall live with the mother.
(5)Neither the mother nor the father shall denigrate the other party in the presence of hearing of the children.
(6)The mother and the father shall use their best endeavours to ensure no other person denigrates the other party in the presence of hearing of the children.
(7)The mother and father shall keep the other informed of their telephone contact numbers and e-mail addresses.
(8)The mother shall advise the father of the name and contact details of the children’s medical practitioner and keep him advised of the name and contact details of medical practitioner providing treatment to the children. The father shall be at liberty to contact the children’s medical practitioner to ascertain the children’s progress from time to time.
(9)That the mother shall inform the father of any emergency medical procedure concerning the children, including any attendance by them at a hospital or doctor/medical centre, within 3 hours of any such attendance.
(10)Both parents shall be at liberty to attend school events to which parents are invited.
It is noteworthy that the mother’s proposals in relation to the boys do not seem to reflect equal shared parental responsibility but rather proper consultation with respect to significant parenting issues. It is clear, however, that the mother did not see she and the father being able to work together, in relation to such issues. More particularly, she proposed specifically that the children live with her and proposed no orders whatsoever, in relation to the father’s time with the boys or communication.
It is a troubling position in relation to the matter, because whilst the mother protested in the witness box that she was encouraging the children and wanted the children to have a relationship with their father, the very way that that could in fact be encouraged and shown to be her wish most directly in relation to arrangements, was to propose that there be orders, even if they were in the most general of terms, such as, at all times as might be agreed between the parents and the children, but no such proposal was made, other than perhaps a cursory suggestion that both parents should be at liberty to attend school events, to which parents are invited.
Of course, that doesn’t necessarily promote an opportunity for the father to a have a relationship with the boys, because it may clearly be a situation where the father simply sits, watches a graduation or watches a school sporting or cultural activity but does not interact with the boys. At least there is some opportunity there and it is noteworthy that, in fact, that was recommended and suggested by the Independent Children’s Lawyer, it being a case where it was clearly of such concern to the court such that an Independent Children’s Lawyer was proposed.
The Independent Children’s Lawyer is a most experienced practitioner and, understandably, took steps urgently to seek to obtain a family report in relation to issues with regard to the parenting of the children. The report under the hand of Mr P is a report which is annexed to an affidavit of 26 March 2012 and makes a number of comments which reflect the difficulties that now exist in respect of the parenting of these children. The very last paragraph is telling, at paragraph 130, Mr P says:
Consequently and on balance, the writer can offer no substantial recommendations in this matter; at least beyond encouraging both parents to progressively improve their communications and co-parenting capacities in order to effect improvements to their children’s social and emotional development, and continuing needs and adjustments to adulthood.
My experience over many years, with Mr P as a regulation 7 approved report writer, is that he is not adverse to making strong recommendations in respect of steps that might be properly taken by parents or a court, in order to facilitate relationships or to protect children in relation to their associations with each parent. To note that Mr P indicates that he cannot make any substantial recommendation, does nothing more than, in my assessment, reflect the enormously difficult issues that are now before this court, and of course, much more importantly, are now faced by the parents and these boys.
The Independent Children’s Lawyer understandably was vexed in what recommendations, if any, could be made, and noted in the case outline that was filed in this matter on 19 November 2012, that there were proposals for 10 orders which were in these terms:
(1)Except as otherwise stated, the mother is to have sole parental responsibility for the major long term issues for the children [X] born [in] 1995, [Y] born [in] 1997 and [Z] born [in] 1999 including but not limited to:
(a)their education (both current and future);
(b)their religious and cultural upbringing;
(c)their health;
(d)changes to their living arrangements that make it significantly more difficult for the children to spend time with each parent.
(2)The mother is to advise the father in writing at least 21 days prior to making any long term decision to provide the father the opportunity to consider the decision and provide any response in writing. The final decision will be that of the mother.
(3)The children shall live with the mother.
(4)The mother shall advise the father as to the name/s and contact details of the children’s medical practitioner’s and details of any medical practitioner’s providing treatment to the children in the future. The father shall be at liberty to contact the children’s medical practitioners to ascertain the children’s welfare from time to time.
(5)The mother shall keep the father informed as to the school/s the children are attending from time to time. The father is at liberty to contact the school/s direct to obtain copies of school reports and details as to the children’s progress from time to time.
(6)The mother shall advise the father of any emergency medical procedure concerning any of the children as soon as practicably possible and within 24 hours of any such attendance.
(7)Neither parent shall denigrate the other parent in the presence or hearing of the children and shall use their best endeavours to ensure that no other person denigrates the other parent in the presence or hearing of the children.
(8)The mother and father shall keep each other informed of their residential address and telephone contact numbers and advise of any change to same within seven days of the change.
(9)In the event that the children indicate a wish to re-establish contact with their father, then the mother shall support same.
(10)That the father be at liberty to send the children letters, cars, and presents and that the mother ensure the children receive same.
They are, at least to some extent, a reflection of those orders that are proposed by the mother in that they specifically note that the proposal is for the children to live with the mother, for the mother to provide information to the father about issues with regard to the children’s education, the children’s medical treatment and non-denigration by each parent of the other parent in the presence of the children, or from allowing the children to remain in the presence of persons who might be acting in such a manner, but otherwise do not specifically seek any proposed arrangements with regard to the boys spending time with their father other than for there to be an opportunity for the father to communicate with the children. And in particular an indication that if the children were to seek to re-establish contact with their father, then the mother should support that.
After evidence was given in relation to this matter, it was clear also that the Independent Children’s Lawyer had formed a view that it was important that other professionals, if able to be involved in the proceedings, should be approached for the purposes of assisting in the fostering, in any way possible, the relationship with the father. In other words, the Independent Children’s Lawyer, through her counsel, proposed that there should be unusually, but I think quite properly, an opportunity for the reasons in this matter to be made available to the school attended by the two boys, [Y] and [Z], as well, as perhaps, a direct approach to the children’s guidance officer at the school, to enable the guidance officer to have a full appreciation of the very difficult issues that arise, in relation to this matter.
In fact, there was provided to the Court by way of subpoena, the school records and it is clear that these boys have a place of some prominence in the school, and I don’t mean that in any derogatory way, but that they are children who are known to the school because of the “right reasons”. They are in the case of [Y] and [Z], two well-regarded members of the school community, and it would be hoped that a fostering of a relationship in any way that it might be able to be facilitated between them and their father, particularly with the assistance of the school, would only go some way to improve circumstances.
It was also understandably suggested by counsel for the Independent Children’s Lawyer, that the Independent Children’s Lawyer not be discharged until such time as information was provided as to telephone numbers and means of communication to be utilised by the boys and the father, if opportunities were able to arise for communication, and most importantly that the Independent Children’s Lawyer not be discharged until such time as the Independent Children’s Lawyer were able to meet with the boys, explain the orders of the Court and the reasons in relation to this matter, so that the boys had a clear, or as clear a picture as young men of their age could have, of the very complex and difficult issues that face the Court and this family, as a result of the situation that now exists and of the hopes and expectations for the future.
Without hesitation I intend to include in any orders that I make those types of orders as additionally recommended by the Independent Children’s Lawyer.
As is clear from what I have outlined so far, this is indeed a difficult matter. The report by Mr P speaks of the clear indications and hopes of the children with regard to a preclusion of any orders that might force them into interaction and time with their father. I do not in any way criticise the recommendations and findings or, of course, the professionalism of Mr P in relation to this matter. He only had the opportunity for interviews with the boys of a limited timeframe and his assessments in relation to the matter were no doubt a reflection of what they told him and his professional assessments of what the children had said and the genuineness of those being their own wishes.
He did not, however, have the opportunity, as I did, to see both of the parents in the witness box and in particular to assess the demeanour and the genuineness of the intent of the parents, in relation to this matter. I will turn to their evidence in a few moments in relation to the proceedings but it is important that before I do so I, of course, note the other evidence that was called in relation to these proceedings. In that regard, for example, there was evidence called from the father’s former partner, Ms T, which is unusual in itself in that whilst she and
Mr Pattison no longer remained in an intimate relationship, they clearly remain respectful of each other and that is appropriate, in light of the fact that they have a young child between them, and they have a long way ahead, in relation to the appropriate decisions to be made with regard to the parenting of that child.
Ms T’s evidence in relation to this matter was fundamentally supportive of the father. She speaks of the fact that she is his former defacto partner, but that she, as she put it, “feels the need to make a statement on what I witnessed during the time I spent living with him, [Y] and [Z].” She starts that assessment by saying:
Mr Pattison is not an abuser. At no time have I witnessed Mr Pattison lay a hand on his boys, Mr Pattison has never made me or my children fear or be intimidated by him. He is generous, kind, he would do anything for anyone, especially his sons.
She goes on to detail the time of their relationship together and various observations that she made. There are a number of observations which are troubling in respect of behaviours, and whilst I am not so naïve as to expect that she would not necessarily put in matters that might in any way give rise to criticism of the father, I am genuinely and generally accepting of what she says with regard to her observations of the family and more particularly, one would think, observations of matters such as handovers between the mother and the father, when it came to opportunities for there to be changes in respect of the boys.
She says at paragraph 6(c) of her affidavit, a comment which I think has a ring of truth and also a telling characteristic to it. She says:
As time went on I noticed a few things said and actions that didn’t seem right. …
(c) At Christmas school holidays, the first 3 weeks the boys spent with their mum, [Z] rang the night before change over and said “mum wants to take us to the movies tomorrow can we stay another day longer. Mr Pattison said sorry, but no, his work holidays aligned with school holidays, which we had planned a trip to the movies. Being put in this situation made him to be the bad guy.
That is exactly right. The mother knew exactly what was required in relation to the time for these children to spend with each of the parents. Knowingly or, unfortunately perhaps even more troubling, unknowingly, she sought to change the circumstances. She changed that small matter of a handover time and by doing so builds up an anticipation on the part of perhaps both boys, but particularly here, [Z], of an enjoyable occasion which was not going to be experienced because the father, quite properly and without any disrespect of the mother, sought the compliance with the orders in relation to this matter. It, along with no doubt a hundred or more other little niggles, would chip away at the relationship between the boys and the father.
As I say, I don’t know whether the mother intended such things to be done intentionally or did them unknowingly, but the tragedy is here that no matter how it came about, the relationship that these boys had, which was and should have been nothing more than positive, in relation to the father was worn down. It was eroded away and, of course, over time such matters become far bigger in the eyes of the children, in particular, than perhaps was the case. In any event, I accept the evidence of Ms T in relation to this matter and I find nothing other than positive statements and comments in respect of the father in these proceedings.
Interestingly, there is also an affidavit from Ms J, the stepdaughter of the father. It is not exactly clear to me that she is over 18 years of age, but I trust that that is the case and that it would have been alerted to me if it was not the case. What is unusual is that more often than not, stepchildren have many negative things to say about step-parents, and it is rare, indeed, for a stepchild to stand forward, particularly in circumstances after her parent has separated from a stepfather and still make positive comments. She strikes me as a very mature young woman, because she says:
I have known Mr Pattison for 4 years. He is my mother Ms T’s’ ex defacto.
She goes on to say:
Mr Pattison looked after us all very well. He treated and still treats my mum good.
She says:
[Y] and [Z] especially were very close to Mr Pattison. [Z] liked helping his dad with fixing cars and bikes. He always went fishing down the river. [Y] was nice and made me feel welcome when I first go up there, he would always help me on the computer.
She speaks of the family unit and the workable arrangements that existed in relation to the family unit and in particular speaks about the allegations that are raised that the children were used virtually as slaves within the household. She says:
The only jobs the boys did daily were 2 would feed the dogs, and the cat [omitted]. And the other two would wash and dry the dishes.
She said about once a week her mother would ask the children to pick a job which would involve sweeping the floor or wiping down the tables, taking out rubbish or getting the washing in, and it took about 10 minutes and then they took their turns on the computer. Most importantly Ms T says:
Nothing bad happened I don’t know why the boys would not want to see their dad, he always would give them what they wanted. I hope they can mend their relationship, because he is a good dad.
Statements such as that are telling because they come from outside the family and they come from a person who, if he wasn’t a good person, no doubt could not be encouraged to make such statements in relation to the stepfather. I am satisfied that it is an accurate reflection of her observations of the father, of her time with the father and most importantly, her specific observations of the father’s relationship with these two boys. It gives strength to the concerns that I have already touched upon then, of there being small steps taken to chip away at that important relationship that exists, which culminated in the boys leaving the father’s care a year or more ago and having had no interaction whatsoever with their father.
As I say, I had the opportunity of reading the report prepared by Mr P in relation to this matter and of, course, hearing Mr P’s evidence given orally when asked questions, in relation to the matter. Much of what Mr P said reflects my own observations and assessments in relation to this matter and it, if nothing else, simply reinforces the extreme difficulties in relation to the proceedings. He made some comments in relation to both parents which were telling, and he made some observations of the children and the parents, which again were reflective of what I observed in relation to these proceedings. He said, at paragraph 3 of his report, when speaking of the father, the following:
On this occasion of interview, the Father presented with concerns regarding the breakdown of contact arrangements with his children; however, and on balance reported, “I know there’s not a lot the Court can do under the circumstances”, and notwithstanding, voiced his opinion that the Mother had “eroded the arrangements”.
The father showed, I think, a real insight in relation to this matter, because my assessment was exactly the same as the father’s in relation to this matter. The problems that are now before the Court and more importantly, of course, the problems that face this family unit are not problems that a legal order can fix. They are problems in relation to the children’s perceptions of their parents and they are problems that stem from the hurt that perhaps both parents feel, in relation to the other.
It is a tragic situation and the father, I think, showed a great deal of insight in acknowledging that orders that a Court might make are not necessarily going to rectify the problems, but may, in fact, enhance those problems. The boys say they don’t want to spend time with their father. Orders that make them do so can have a number of different consequences. It might be, as the father understandably hopes, that the boys, particularly [Z], for the few hours that are proposed by the father, would not run away, would stay, would spend some time with the father and would hopefully, very quickly, grow to realise that the father is not the ogre that he believes him to be for whatever reasons, and rather that he is a parent with whom the child can have a proper, meaningful and, most importantly, beneficial relationship, that will make him a better young man and perhaps a better adult than will be the case, if there is no interaction between them.
There are, of course, other possibilities. The child says he would run away. If that were to be the case then the father, the mother and the Court would all be concerned as to the best interests of the child. Children who run are acting erratically to start with. Children who run make poor choices and there are always risks inherent in that. But it is clear that the father lives in hope and whilst Mr P was not necessarily as confident as the father that there might be benefits in relation to spending time with the father, Mr P, when asked about it by the father, acknowledged that there were possibilities, a thought improbable perhaps, but real possibilities that the relationship could be engendered and enhanced as a result of there being a forced or prescribed time spent certainly by the child, [Z], with the father.
It was noteworthy, therefore, that Mr P acknowledged that there were competing and difficult concepts in relation to the matter which led, as I have already noted, to that final content and comment by him where he said he was simply able to offer no substantial recommendations.
As I said, I do not make any criticisms of Mr P in relation to this matter. Unfortunately, from his perspective, from the Court’s perspective, and most importantly, from the parent’s perspective, the situation that now exists in relation to these boys and their relationship with their father is one of great complexity and one that does not easily come forward with solutions or answers. Mr P’s report, if nothing else, assisted me in feeling confident about the assessments that I made in relation to the matter.
I turn then obviously to issues in respect of the parents themselves. They are the two primary players in relation to determinations of matters with regard to the parenting of the boys and I had the opportunity to read the more detailed material that was prepared and provided by the father in relation to this matter, as well as the very short affidavit that was filed some considerable time ago by the mother. Perhaps more importantly, I had the opportunity of seeing both of the parents in the witness box and having the opportunity to assess them as best I could, in relation to the proceedings.
The father is the applicant and I turn to him first. He is not a perfect parent, but then none of us are. It is clear that he loves his boys passionately and would do nothing knowingly to hurt them. Mr P commented, and I get the impression that it’s probably a fair comment, that the father did not necessarily fully appreciate some of his own actions and their impacts upon the boys.
The boys made some comments to the father about his alcohol use and consumption and they have no doubt that on occasions he has been more under the influence of alcohol than he perhaps acknowledges to me, and has been under the influence of alcohol on occasions when the boys have been present. As a result of that, he has acted differently and that may have been, in some respects, amusing for the children. No doubt many children laugh at the antics of their parents, both when under the effects of alcohol and tragically on occasions when they’re acting in what they consider to be a sensible manner.
But there must also have been occasions where the children’s reactions to the father, particularly if under the influence of alcohol, have been troubling for them. They seemed to have certainly expressed to Mr P circumstances of concern where the father’s behaviour troubled them. There are certainly allegations by all of the boys, including [X], that there had been occasions where the father has been physically overly zealous towards them and that discipline has not been appropriately meted out. The father denies that but I’m inclined to think that at least to some extent, there may be some legitimacy in concerns expressed by the boys, though I do not under any circumstances think that the degree of concern that now is expressed by the boys, in relation to the matter, is in any way reflective of what might have been the father’s behaviours.
The boys have no doubt been challenging. In particular, the circumstances of [X]’s departure from the father’s residence seems to indicate that as a troubled young man, his behaviour was trying in the extreme. No parent could find themselves behaving in the most appropriate manner in relation to such issues and where the father says that he sought to restrain the child, [X]’s perception no doubt is, as he says, that the father and his partner assaulted him. Probably somewhere in the middle lies the truth in relation to the matter, but degrees of perception and matters of perception are something exclusive and personal to the person who is put in the position of trying to determine what they might or might not mean.
What is clear is that the father has, I think to some extent, minimised his own reactions and interactions with the children, but has not been the ogre that he has been painted. My impression in relation to this matter is unfortunately that, as I say, knowingly or unknowingly, and I really don’t know the answer, the mother and those associated with her have chipped away at the relationship between the father and the boys and have finally led to a situation where a fairly trifling incident over a mobile phone has become the final straw that broke the relationship, and that the mother has done little, if anything, to seek to reinforce or re-establish that relationship though she protests that she has.
My impressions in that regard will be the subject of some further comment in a few moments, but before leaving the father in relation to the matter it is important that I note, that whilst there are degrees of minimisation and perhaps a lack of true appreciation on the part of the father of how his responses may have affected the children, the overwhelming impression that I receive in relation to this matter is that he is a father who loves his sons, that wants nothing more than the best for his sons.
I note in his submissions that were made in relation to the matter, he made a comment which I thought was telling. He said that he agreed with the mother that the children were not bad kids, and that it had a ring of absolute truth and certainty to it. He also went on to say, however, that they were children like all children who do need some discipline, that they need guidance and boundaries and that the behaviours, certainly of [X] and to a lesser degree and hopefully no more exampled of [Y], were where the guidance and the direction were not being provided and they were going off the track.
The father was no doubt genuine in that regard and, as I have said, my impressions in relation to the matter are only positive in relation to the father and his wish to be nothing other than a good parent to these children and a parent who can provide benefit, love and direction to them.
The father impressed me very greatly in that regard, though in passing I do need to comment that his exchange with the mother is, I think, a matter of some concern, probably stemming from the difficulties that they have had over many years in their interaction with each other and there is certainly again issues of perception by the father of what the mother is telling him or not telling him and, just as clearly, issues of perception by the mother of that being nothing other than criticism and denigration of her, which she doesn’t wish to be involved in.
It is easy to sit on high, to be judgmental, as judges do, in relation to such matters and to criticise the day-to-day lives of persons in difficult situations, but I am hopeful that I am at least realistic enough to accept that no person acts perfectly in situations of stress, and that both parents here have fallen somewhat short of what might be hoped, but not in any way fallen short of what would be expected in the circumstances that this family, particularly in a critical time such as that which has existed for the last year or more, have found themselves in.
I was impressed by the father and the genuineness of his wish for some remedy to be found, in respect of his relationship with particularly the two younger boys.
I turn then to the mother’s evidence in relation to this matter and I must say that I was troubled in a number of respects by that evidence. The mother painted herself as a victim in relation to these proceedings. Whenever the questions got “hard”, she said that she was rattled, that she “couldn’t be here”, that she on at least three occasions said: “Oh, I’m a bad mother. It’s all my fault.”
The fact is that the mother is not necessarily a bad mother, though, like all of us, as I’ve already commented, she could be a better mother. She fails in any way, I think, to recognise the dreadful damage that has been done to these boys as a result of the breakdown in the relationship between she and the father and the encouragement that I honestly find she has given to the boys in relation to the negative assessments that they make of their father.
The mother said that she encouraged the relationship with the boys, but when counsel, I think in very appropriate cross-examination on behalf of the Independent Children’s Lawyer, sought to explore issues in relation to what the mother had done, the mother was very quick to say that she asked the boys to go but when they said they wouldn’t, she didn’t push it. She didn’t really want to put them under pressure.
The fact is that it was much easier for her to accede to such a statement, particularly when the boys were saying exactly what she wanted to hear in relation to this particular matter. It was a dreadful example of a person who I don’t think knowingly sought to destroy the relationship between the boys and their father, but was perfectly comfortable to watch it happen and do little, if anything, to put it to one side.
These boys loved their father. They hopefully will have the opportunity in the future to again love their father and to benefit as they would do so. The mother told the father little if anything about the circumstances of the boys, certainly in the last year or so since [Y] and [Z] have been in her care. But in relation to [X], she has been non-communicative, in the extreme. She sought to justify not telling the father about criminal behaviours, about self-harming behaviours and other issues by saying, “Oh, well, he wasn’t present,” but, of course, she failed entirely to recognise that to a significant degree his lack of presence in the children’s lives was something encouraged by her, through her lack of involvement of the father in the children’s lives.
It was one of those dreadful spirals that lead from a positive relationship to negative or no relationship between a parent and children and a situation where the mother was perfectly happy and comfortable to see it occur. She said she made a mistake in not telling him about certain of those things, but the impression that I got was that she was perfectly happy to make that mistake and to continue to make that mistake in relation to the boys.
She was asked about the possible hypothetical arrangements that might be made, particularly, for example, with regard to [Z] being able to spend some time with his father, perhaps for a barbecue, or as counsel for the Independent Children’s Lawyer put it, a burger and a chat, and she was asked how that could be made possible. I noted at the time that the mother took a significant period, perhaps 10 or 15 seconds to answer that question.
She delayed, because she had to formulate an answer that was going to be the right answer in relation to this matter, because unfortunately, I don’t believe that the mother had any real intent of seeking to foster the relationship between the father and the boys, or particularly [Z]. She then went on to say, “I’m willing to ask them to go,” which of course is entirely different to saying, I will tell them to go, or I will encourage them to go, or I will make sure they know the positives about a relationship with their father. She then went on to say, “I will force them, if I have to.”
Of course, the fact is that she didn’t have to force them 12 months or more ago. She could have encouraged it and it would have happened, but nothing happened then and she has been perfectly comfortable to allow the situation to fester, to allow the relationship to deteriorate to the extent now where these boys unknowingly hurt themselves, as a result of their failure to wish any relationship with their father.
The mother says that the father’s communications with her were intimidating, and that they were critical of the boys. There was no such possible connotation that could be drawn in relation to the email that the father sent to the mother in January of 2011 about his wish for his relationship with the boys to be reinstated, to be fostered and developed. The mother was just happy to find fault. She didn’t want the father to have a relationship with the boys and she started to make statements about their wishes previously expressed over years of not enjoying their time with the father.
With the greatest respect, and of course when lawyers make that comment, they generally are going to be disrespectful, I do not accept the comment by the mother in that regard. She was more than happy to see a situation where the father was excluded from the boys’ lives and no doubt, encouraged that perhaps simply through body language or a lack of expression about arrangements to be made, with regard to the parenting of the children.
The father sought a relationship with his boys nearly two years ago, shortly after separation occurred and he wanted that relationship to be fostered. He asked and hoped for he and the mother to be the parents the boys deserved. I accept unconditionally that the father was genuine in that respect and that he would have done all that he could within his power to foster such a relationship and that the mother was not at all willing or able to recognise that her own wishes should perhaps be subservient to the best interests of these boys, in having a relationship with their father.
The mother said that the boys were adamant that they didn’t want to go, but of course, the standard question that I think most judicial officers practicing in this area would ask is, that if the boys said they didn’t want to go to school, would she make a responsible and appropriate parenting decision and insist that they attend. She said, “I would make them go if that was the case,” but interestingly, of course, she failed to recognise or accept the far more important relationship between the father and the boys than attendance occasionally at school, such that she simply said that they didn’t want to go and that was, I think, at least by connotation, right by her. She was comfortable with such an arrangement and she was happy to achieve her own goals, by taking no steps in relation to the matter.
Mr P talks about the importance of the mother stepping back from the situation that exists in relation to this matter. The mother, I think, talked the talk. She said that she encouraged the boys, that she wanted them to have a relationship with the father but unfortunately, my impression is that at the very least, she did little to encourage the relationship and perhaps, at the worst connotation, she sought determinately to undermine the relationship between the boys and the father.
Her evidence in relation to this matter troubled me greatly. The mother seems to have a perception that she is able to deal with the serious issues that exist, particularly with regard to [X] and [Y] by talking with them. She talks about having done various courses but with respect, the impression that I gained was that the mother was far more inclined to think that if she gave the boys what they wanted, if she supported the boys in whatever they chose, then she was being a good parent, rather than recognising the importance of sometimes parents having to be disciplinarians, having to make decisions in relation to their children that their children may not necessarily appreciate.
They may not at the time, but they may far more appreciate them when they become young adults and realise that getting a proper education, having a proper relationship with both of their parents and in acting in socially acceptable ways, is a far better way to live your life for the next sixty or eighty years, than to have your own way at 13, 15 or 17 years of age and bear the consequences of that for years and years to come.
The impression that I got of the mother was, unfortunately, superficial. I gained the distinct impression in relation to this matter that she thought by allowing the children to act generally in a manner which they wanted to act was being a good parent, rather than in any way recognising that there were far greater obligations and responsibilities that fell upon all parents than simply being a friend or a confidant. Sometimes you have to be a disciplinarian and sometimes you have to be directorial in relation to children and their lives.
I gained many unfortunate impressions in relation to the mother. I gained the impression that the mother was far too lax in issues with regard to the parenting of the children. Their school attendance records were appalling. She seemed to explain that by saying that she had to parent four children, one of them was home-schooled, and that she did the best she could. Unfortunately, the expectation is not simply the best you can do but the best that is required in relation to the parenting of children, and that is simply one of the real concerns that arise in relation to the parenting of these children.
The mother also, as I noted before, seemed to wish to paint herself as the victim. She was the person who was being pressured in relation to this matter. She was the person who had to bear the brunt of all the responsibilities in relation to the children, though she failed to acknowledge, I think, in any genuine way, that she had fallen short in many of those respects in relation to the parenting of the children. She was also not averse to having, as fast as she could, a go at the father.
When she was asked questions about whether she could help the boys, particularly [Y], in relation to self-harming and issues such as that and whether she could have done more, she very quickly and I think, with great zeal, responded, “I’m not his only parent. I can’t do your job for you,” but of course, she entirely failed to remember or recall that in fact, the father had, through no doubt, significant involvement of her, been excluded from providing that role as a parent in relation to the child.
I thought rather unfortunately, that the mother revelled in that sort of role of saying, “If there were problems, it’s not really my fault, I’m doing the best I could and the father could help,” but then also, failing to recognise in any way that she was perfectly comfortable in excluding the father from such involvement in the children’s lives.
I was troubled very much by the mother’s evidence in relation to this matter, her entire lack of insight as to the consequences of her actions in relation to this matter and, most importantly and most tragically, her complete lack of appreciation of the harm she does to these children, which far outweighs anything that I could assess as being harmful in the relationship between the father and the boys.
These boys have been encouraged, knowingly or unknowingly, to cease loving their father, to cease a proper relationship with their father and to seek out negatives in his parenting, without any recognition of the real benefits that can be there and should be there, as a result of the father’s involvement in the children’s lives.
The mother has a great deal to answer for in relation to this matter and unfortunately, I have little confidence that my words here will have any real effect upon her, in relation to the matter. The impression, unfortunately, that I got was that the mother was perfectly happy to continue exactly the way she has done, perfectly happy to reassure herself that she was doing the right thing by the boys, though the right thing by the boys at the moment seems to be leading to self-harming behaviours, criminal behaviours, drug use and abuse and it is a matter of great tragedy that it may not be now, but it may be in years to come, that these boys further problems, and there will be further problems unless there are radical changes, will be attributable to her and unfortunately, perhaps attributed by the boys to her, so that a relationship that she so desperately says she wishes to foster between herself and the boys will be fractured through her own lack of appreciation of the qualities that could properly be brought by both parents properly acting in relation to the parenting of these children.
I gain no satisfaction whatsoever in the findings that I make, particularly in relation to the mother in relation to these proceedings because it doesn’t make my job any easier when I have to apply the law as best I can to the circumstances that exist. The boys and in particular, of course, the younger boys here, [X] is perhaps beyond hope but one expects there might be some chances but with regard to the younger boys, their perceptions must be taken into account.
I’m obviously aware of the various legislative requirements that must be considered in relation to the proceedings such as this. The paramount consideration is the welfare of the children. Section 60CA states that that is the starting point but it is only the start of the very many factors that must be considered.
There is consideration that must be given pursuant to the provisions of section 61DA to the parenting responsibilities to be made in relation to the children of any relationship and of course, the legislature lives in a world where they hope that a perfect parenting arrangement could be put in place, because pursuant to the provisions of section 61DA, there is a presumption, at law, that the best interests and welfare of the children will be met by the parents having equal shared parental responsibility, in relation to decisions to be made with regard to the children.
A court has to make a decision in that regard, where the parents are unable to do so, and in making such a decision, it needs to consider issues such as family violence or perhaps more generally, a catchall, of any other consideration which leads the court to the view that it would not be in the best interests of the children for there to be orders made with regard to equal shared parental responsibility. If the court were concerned about issues of domestic violence or family violence, then that is a basis upon which the presumption is rebutted, or if the court were concerned that there might be other factors which meant that joint decision making could not work, then that might be a consideration.
The tragedy here is that I believe there is another factor which augers poorly for any chance of equal shared parental responsibility and that is the lack of respect and trust that both parents have for the other in relation to the parenting. I have commented at length about the mother’s perceptions in relation to this matter. She is quick to find fault with the father. His emails, where he makes, in my assessment, perfectly reasonable inquiries about the children and wishes to have an opportunity for involvement of both parents in the children’s lives is met with a response of, “I was being intimidated. He was harassing me. It was not appropriate questioning,” when of course, that simply is the mother’s perception and her wish in relation to the matter.
But just as clearly, there’s a lack of trust the other way. I noted, for example, that the father was asked about text exchanges that occurred and the numbers that he had to communicate with the boys. He was asked by counsel for the independent children's lawyer about a situation where [Z] contacted him at a school camp and there was communication between them. There was also, of course, some texts that were sent at different times and where they were not positive, the father’s response was simply to say that he wasn’t certain that they were responses from the children, that they might have come from anyone, the suspicion of course being from the mother, which leads to the incontrovertible position in relation to this matter, that the parents don’t have trust or respect for each other.
In that circumstance, one can’t imagine that they could put to one side the hurt that they have both experienced, for different reasons, in respect of their interactions and make decisions in relation to the children. It seems to me that if that is the case, then equal shared parental responsibility, whilst a hopeful goal in relation to the matter, is not one that can properly be achieved. I am not satisfied that equal shared parental responsibility is in the best interest of these boys, not because it wouldn’t benefit them, it clearly would, but because I have no confidence that the parents would be able to put their animosity for each other to one side and to ensure that the best interests of the children were to the fore.
In that respect, it is important, however, that I note, as perhaps is evident from what I have said before, that I would think that the father would be better placed to put that animosity and hurt to one side but that there would still be a lack of trust and certainly a perception on the part of the mother that there was criticism, harassment and intimidation in all comments that he might make, such that there would be no opportunity for joint decision making to be made.
I find the situation one, unfortunately, therefore, where I must not consider equal shared parental responsibility but rather to see it as being rebutted and if that is the case, particularly where it is a situation that the circumstances now exist where the father has little, if any involvement with the children, that someone has to have the responsibility for making decisions in relation to the children. Whilst it is, I hope, clear that I have real concerns about the mother’s real capacity to make those decisions, there is no one else who can make those decisions, there being no communication between the parties and no real relationship, at least at the present time, between the boys and their father.
Having determined then that sole parental responsibility should vest in the mother, I am not required specifically to consider those issues that arise pursuant to the provisions of section 65DAA but rather, to turn to the objects and principles of the Act and the considerations that are detailed respectively in section 60B and section 60CC of the Family Law Act. The objects are in these terms:
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
60B(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture
The considerations which are a reflection of those objects and principles are in these terms:
60CC(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
60CC(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
60CC(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
What has to be looked at, then, is what opportunities should be put in place with regard to interaction by the boys with both of their parents but of course, most particularly here, the father. The report writer suggests that there should be no specific arrangements in that regard. He gave evidence about hopes for maturity and development of a relationship in relation to the matter, when being cross-examined in respect of the proceedings, but he also spoke of the fact that there might be greater hurt that arises, particularly if there were prescriptive orders put in place, which required such arrangements to be made.
The Independent Children’s Lawyer, I think, recognised that also in the proposed orders that were put forward on the part of the Independent Children’s Lawyer, in that there was no suggestion of specific or prescribed times with the boys spending time with their father, but there was, as detailed in the proposed order 9, a hope that if the boys indicated a wish to re-establish contact with their father, then the mother would support that. Unfortunately, I am not necessarily confident that even if such indications were given by the boys, that the mother would properly support that, but I have to make a decision in relation to this matter that reflects not only the best interests of the boys but also takes into account issues with regard to risks to the boys.
At the commencement of the hearing yesterday, I spoke at some length with the father in an exchange about what orders could be made, and at the beginning of these reasons, I commented upon, I think, the insightful comment of the father to Mr P, that he wasn’t sure that a legal remedy was there, that an order could be made that makes this matter better and I am still very much unfortunately of the view that this is not something that I can remedy by an order being made.
I can do the best I can to make assessments in relation to how to seek to re-establish a relationship with the boys, but the very troubling consideration here is that for every step forward that might be made with the assistance of experts, with the assistance of counsellors or family therapists, with the involvement of the school, as suggested by the Independent Children's Lawyer or, in fact, the involvement of the children’s lawyer directly in explaining these reasons and concerns to the boys, there is just as clearly an opportunity of more steps backwards, when they are placed in a situation where the mother does not seek to encourage the relationship with the boys.
Unfortunately, I gained the distinct impression, and I hope it is clear from what I have said, that the mother, when saying she would encourage the relationship, was talking the talk but I have little confidence that she will walk the walk, when it comes to any real encouragement of the boys in spending time. Saying that she would force the boys to spend time with their father is a reflection of the fact that she can’t really communicate to the boys the importance and the benefits of a relationship with their father.
They are matters that loom large in relation to these proceedings because, of course, when I look at the considerations that must be noted in relation to any decision, some of the factors that are present are issues of very real concern. I am mindful, particularly, of the provisions of section 60CC(2), the primary considerations to be looked at which, of course, reflect the children’s right to a meaningful relationship with both of their parents and the balance, or counter-balance perhaps, that has to be looked at with regard to ensuring that children are not put in a circumstance, as a result of spending time with the parent, where they are at physical, emotional or psychological risk of harm.
I don’t believe there is any physical risk to these children whatsoever in spending time with their father and I am genuinely of the view that they are not at risk from their father of any psychological harm or emotional harm, but that is from their father’s perspective and one of course doesn’t know what is in their own minds. The best evidence that is there is that which comes from the information provided by Mr P in his expert opinion. He describes [Y] in paragraph 47 of his report as a friendly, talkative and apparently open 14 year old. He spoke positively of school and of issues in relation to his life but when asked about his father, he said in paragraph 49:
I just don’t like it at Dad’s.
When asked to explain further, in paragraph 50, Mr P notes that [Y] responded:
He drinks and screams and yells at us. He drinks every day, and starts when he gets home from his work at [omitted].
And following further query, added:
I don’t count how much he actually drinks; but it’s at least three (3) to six (6) every night. But he was angry a lot of the time (pause) and about everything.
[Y] then continues, as reported by Mr P:
We would get into trouble a lot, and his place is not a proper home. There is nowhere to put things properly; and his house is messy.
And further explained:
There is only one cupboard; and he expected us to keep things clean. And also, we don’t really get on with his girlfriend, Ms T.
He then goes on, finally, at paragraph 52, to be reported as saying:
I know that my younger brother doesn’t want to go back there either. And it’s not just time-out for me; I’m pretty sure that both of us don’t want to go back.
And he added:
He’s been too much really. And the fact is, I don’t really like him.
The trouble here is that there is a perception on the part of [Y] and unfortunately, there are similar perceptions on the part of [Z]. [Z], Mr P reports, presented in a gentle and quietly spoken manner and was similarly appreciative of the opportunity to voice his experiences. He spoke about school and then, in subsequent discussions concerning his experiences of time with his father, at paragraph 56, Mr P reports [Z] saying:
Up until about late last year, we were seeing Dad (pause) well really living 50-50. There was one-week at his place, and then one-week with Mum.
And added:
And that has been going on years.
He then goes on, however, to say that he had concerns about his treatment at the house. There were comments made, for example, about the birth of the father’s child with Ms T, [name omitted], and that there were different treatments being made but of course, as the father noted and I note also, the treatment of an 11 or 12 year old is very different to the treatment that might be provided in relation to a six month old and I saw no ring of truth in comments being made by [Z] about:
The kid can do anything and get away with it, but Dad yells at us a lot.
[Name omitted] was and remains a baby. The child’s perception is exactly that, a child’s perception in relation to this matter, but it was reinforced, no doubt, by the mother encouraging that view in relation to the child. There was also a ring, as the father noted, of coaching in relation to this matter. [Z] commented, for example:
And he drinks a lot; beer, I think. But every day and on the weekends.
And then goes on:
When he gets drunk a lot, he gets angry, and he yells at us (pause) but he yells at us even if he is not drunk.
There is a similarity between what [Z] says and what is reported as being said by [Y] in relation to this matter and I have no doubt that if not coached, there is at least the opportunity for the boys to talk with each other and reinforcement in the mother’s household of the concerns that they express.
Again, it is a troubling consideration for two reasons. The first, because of the long term effects upon the child but the second, and just as troubling, if not more so, is the fact that however that perception and those views may have come to pass, they are strongly held by these children and of course, one of the considerations that I must also look at in relation to any arrangements to be made with regard to the parenting of the children, is the wishes of the children.
I have to obviously consider that in light of the maturity of the children, and I must say I have personal concerns as to the mature nature of any views that the children express, in relation to this matter, though I must also acknowledge that an experienced report writer,
Mr P, was of the view that the children’s views expressed in relation to this matter, were genuinely held views and not necessarily those which had been encouraged or coached by the mother.
My own perceptions are different but I must also, of course, recognise that there is a wish expressed by boys 13 and 15 years of age and as the Independent Children's Lawyer noted, they are of an age where however their views have come to pass, they must be considered in relation to this matter.
There are obviously other issues that need to be considered in relation to any determination and a couple loom large. The first is a combination of those issues that relate to each parent’s capacity to provide for the intellectual and emotional development of the children, balanced against and coupled with the issues of the parents’ attitudes to the responsibilities of parenting and the capacity to foster a relationship with the other parent. The father and the mother have both fallen short in various capacities. Their lack of trust and respect for each other over many years now has led, at least in part, to the difficulties that these boys are now experiencing.
Neither parent can avoid some degree of criticism of what these boys are going through as a result of their own actions and whilst the father, to some extent, minimised his responsibilities in relation to certain of the views that were experienced, I gained the impression that at least in part, he acknowledged that, particularly for example, in the email that he sent to the mother in January 2011, he realised that they could both be better parents and they could give and provide to their children more than they were doing at the time.
Unfortunately, the impression that I get is that the mother fails to really or properly appreciate her responsibilities in so many of those regards. The children don’t get to school as often as they should. The children are late for school, as is reported in the school records, repeatedly. They might only be a few minutes late here and a few minutes late there, but the culmination is troubling and it is something that the mother has no appreciation of.
The mother certainly, in no way, appreciates or respects the importance to the boys of a relationship with their father and there are many criticisms in that regard. The mother, I think, is entirely incapable of fostering the important relationship between the boys and the father and they are all factors which weigh heavily in relation to this matter but they must all be looked at on balance of the best interests and the welfare of the children.
There is also a very real concern held by me in relation to this matter, that if I were to make, as they were described by Mr P, prescriptive orders in relation to time to be spent by the boys with the father, then they are recipes for disaster. The moment, the boys don’t go, the moment they run, the moment [Y], hopefully not but may, self-harm as a result of being forced to spend time with the father, there are issues of concern that arise and of course, one of those issues is the real possibility of further litigation.
The court is required to consider making orders which are least likely to lead to further litigation and, in that respect, one of the real considerations here then is the orders suggested and proposed by the Independent Children's Lawyer with regard to there being encouragement of the children and fostering, as best there can be, of a wish to contact, communicate and spend time with the father, but no prescriptive orders. There are no perfect answers in relation to this matter and I desperately wish that I had one but I cannot make an untenable position tenable, by way of an order with a seal of a court put on it.
All I can do is hope that there can be some appreciation by the mother of the hurt that has occurred in relation to these children and the hurt that continues, as a result of her failure to really appreciate the importance of a relationship with the father. I unfortunately am somewhat concerned that that will not occur and that the mother will walk away from these proceedings thinking that she has, to use an unfortunate term, won, because I do not believe that it is appropriate for me to make orders with regard to the children spending time with their father, because that can only lead to further hurt for all concerned.
What I can do, however, is to make orders which generally are reflective of those that are suggested by the Independent Children's Lawyer. I intend to make those orders that are suggested by the Independent Children's Lawyer, including the orders specifically directing that my reasons, which I will direct to be transcribed urgently, be made available to the children’s schools and specifically brought to the attention of the guidance officer at the school, for the purposes of assisting, in any way possible, to encourage and facilitate the children’s relationship with the father.
Additionally, and perhaps most significantly, to request that the Independent Children's Lawyer, prior to her discharge in this matter, communicate and meet with the children, if as the Independent Children's Lawyer considers appropriate, with the assistance of a family consultant of this court, for the purposes of explaining the decision in relation to this matter and in particular, explaining to these children that their father loves them, that their father wants a relationship with them and that they will be better young men as a result of a relationship with their father.
He is not the drunken, violent, angry man that they perceive him to be and it is certainly something that they need to have every opportunity to appreciate and to understand, because it will be they who benefit from knowing both of their parents and having a relationship with both of their parents.
As I say, I intend to direct that my reasons in relation to this matter be expedited in their publication and made available. I sincerely wish that there was another order that I could make in relation to this matter, and if I honestly believed that I could make the situation better by ordering the children to spend time with the father, then I would do so. But unfortunately, I think it has gone beyond that. It can be remedied, but it can’t be remedied by order of a court. It can be remedied by proper parenting and proper counselling for the children, and I trust that the steps that are proposed here will provide some avenue for that to occur.
RECORDED : NOT TRANSCRIBED
As I indicated earlier, I intend obviously to include the order that was suggested by Ms Lehmann in relation to provision of telephone numbers for the children, and of course, the inclusion as is suggested in her material of a requirement that each parent keep the other informed of any change of address or change of numbers, including change of the children’s numbers.
I will also direct that within seven days of the date of this order, that the mother arrange the preparation and communication to the Independent Children’s Lawyer of a hotmail address for the boys for the purposes of the father communicating with the children.
I certify that the preceding one-hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Coker FM
Associate:
Date: 7 January 2013
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