PEAT & NORTHUP

[2020] FamCA 487

FAMILY COURT OF AUSTRALIA

PEAT & NORTHUP [2020] FamCA 487

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where the father seeks that the children live with the mother and spend time with him – Where the mother opposes the orders sought and seeks resumption of reunification therapy – Where the final hearing is imminent – Where a significant period of time has lapsed since the children have spent any time with the father – Where the mother contends previous spend time arrangements were unsuccessful – Where previous reunification therapy was unsuccessful – Where the family assessment report recommends a court order is necessary in order for the children to spend time with the father – Where it is in the best interests of the children that they spend some time with the father – Orders

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Marvel & Marvel [2010] FamCAFC 101

APPLICANT: Mr Peat

RESPONDENT: Ms Northup

FILE NUMBER: ADC 554 of 2018

DATE DELIVERED: 17 June 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 29 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Culshaw Miller Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

IT IS ORDERED UNTIL FURTHER ORDER:-

1. That X born … 2007 and Y born … 2010 (collectively “the children”) live with the respondent.

2. That the children spend time with the applicant as follows:-

   (a)Each Monday from the conclusion of school (or 4.00 pm if not a school day) until 8.00 pm upon the condition that Ms B will not be present.

   (b)Such further and other times as the parties may agree or as may be requested by the children or either of them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peat & Northup has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 554 of 2018

Mr Peat

Applicant

And

Ms Northup

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. Mr Peat (“the applicant”) and Ms Northup (“the respondent”) have not been able to resolve their differences as to the future parenting arrangements for X born in 2007 and Y born in 2010 (collectively “the children”) and settlement of property.

2. The final orders sought by the applicant are set out in his Amended Initiating Application filed 6 March 2020.  The respondent seeks orders as set out in her Further Amended Response filed 24 February 2020.

3. The proceedings were listed for trial in the Federal Circuit Court of Australia on 10 March 2020, noting that the applicant’s solicitors had filed a Notice of Intention to Withdraw on 27 February 2020 and the respondent was to consider an application pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”). The order of 10 March 2020 noted that the trial was not in a position to proceed given the mother was unrepresented and it was ordered that the proceedings be transferred to the Family Court of Australia.

4. By Application in a Case filed 28 April 2020 the applicant seeks extensive interim parenting orders.  The interim application was predicated on an assumption that the Family Court would not be able to relist the substantive applications with expedition.

5. The interim orders sought are opposed by the respondent.  Upon the competing applications being heard on 29 May 2020, orders have now been made that all applications for final orders be adjourned for hearing on 31 August 2020.  The matter is also listed for further directions on 3 July 2020.

6. As a consequence of the expedited hearing, the applicant now only seeks the following orders:-

   (1)That the parties have equal shared parental responsibility for the children.

   (2)That the children live with the mother.

   (3)That the children spend time with the father as follows:-

   (a)For a period of six weeks (commencing the first Monday following the date of these orders) each Monday from the conclusion of school (or 4.00 pm if not a school day) until 8.00 pm, noting that the applicant’s wife Ms B, will not be present;

   (b)Thereafter for a period of six weeks (commencing the immediate Saturday after the Monday of time spending) each Saturday from 10.00 am until 4.00 pm;

   (c)Thereafter for a period of six weeks every Saturday from 10.00 am until 10.00 am Sunday; and

   (d)Thereafter and until further order, each alternate weekend from 10.00 am Saturday until the commencement of school on Monday (or 4.00 pm in circumstances whereby the children are not being home schooled pursuant to COVID-19 restrictions or if not a school day).

7. Given that there is less than 12 weeks to the commencement of the final hearing, the applicant concedes that the orders he seeks be limited to those contained in paragraphs 3 and 4 of the application.

8. By Response to an Application in a Case filed 13 May 2020, the respondent opposes the orders sought by the applicant and seeks that, reunification therapy resume and that the applicant have time with the children under professional guidance and supervision.

Background

1. The parties commenced cohabitation in 2005, were married in 2008 and separated in December 2016.

2. A divorce order was made in 2018.

3. The applicant has re-partnered with Ms B.  They were married in 2019.

4. Other than a dinner in November 2019 the applicant asserts that he has not spent time with the children since 31 March 2019.

5. The applicant considers that the respondent has either not promoted the children’s relationship with the applicant or has actively intervened to disrupt the relationship.

6. The respondent asserts that the children have become increasingly more resistant to seeing their father which has its genesis in the children observing purportedly aggressive conduct by the applicant towards the respondent, both before and after separation.

7. The respondent considers that the parenting arrangements following separation were largely dictated by the applicant and were not child focussed in that the applicant was not able to compartmentalise his ongoing denigration of the respondent, was not attuned to the sensitivities of the children surrounding the breakdown of the marriage, the difficulties that the boys were having in accepting the applicant’s relationship with Ms B and the applicant’s aggressive and angry behaviour with the children.

8. The applicant responds to the respondent’s allegations by highlighting his observation that the last occasion that the children spent time with him was happy and without rancour.  The children enjoyed their time and his only explanation is that the respondent has engineered the current impasse.

9. The applicant does not accept that there were any difficulties in his relationship with the children, but that the catalyst for the respondent’s interference was his marriage in 2019 to Ms B.

10. The respondent remains resolutely opposed to there being any significant time spent between the applicant and the children.

11. By reference to the final orders sought, the respondent seeks that she have sole parental responsibility for the children, that they live with her and spend time with the applicant limited to one dinner per fortnight, subject to the children’s wishes.

12. The extent of the respondent’s opposition to the applicant spending time with the children is highlighted by [21] of the final orders sought which subjects the provision of information in respect of a medical emergency or serious illness to the wishes of the children.

13. The orders sought by the respondent are largely informed by her assessment that despite her best endeavours to promote and facilitate the children’s relationship with the applicant, the children are trenchant in their refusal to see the applicant and to force them to do so may well place them at risk of psychological or emotional harm.

Interim parenting considerations

1. In Marvel & Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing:-

   120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

2. I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order and whilst a Court should generally be risk-averse and cautious, that does not mean that I am obliged to only make orders consistent with the current arrangements and status quo.

3. The competing applications of the parties must be considered pursuant to s 60B of the Act which outlines the objects and principles underlying Pt VII of the Act.

4. Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is the paramount consideration. In order to determine what is in the best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

5. I am obliged to adopt a practical approach in respect to the application of the factors as set out in s 60CC of the Act. Not all of the primary and additional considerations will apply. It may well be an unnecessary distraction to consider those factors which have little or no practical relevance, thereby giving inadequate weight to the factors that need more detailed consideration.

6. The parties have opposing positions in respect of parental responsibility.  The applicant seeks to retain equal shared parental responsibility, whereas the respondent seeks sole parental responsibility.  I must also consider that subject to further adjournment, the final hearing has been listed on 31 August 2020.

7. The respondent argues that the applicant is not attuned to the needs of the children and is not child focussed.  The Court has been assisted by the involvement of Ms C, a single expert psychologist who has prepared family assessment reports dated 13 June 2018 (“the first report”) and 4 March 2020 (“the second report”).

8. Following recommendations by Ms C in the first report, orders were made on 19 June 2018 which provided for the children to live with the respondent and spend time with the applicant from the conclusion of school Friday until the commencement of school on Monday each alternate weekend.

9. The respondent contends that the arrangements were unsuccessful and that Y was strongly opposed to spending time with the applicant.  The oppositional behaviour displayed by Y was present both before the children spent time with the applicant and for some days thereafter.

10. A focus of the purported complaint by the children is the allegedly aggressive conduct by Ms B in her engagement with the children.

11. The respondent also complains that the applicant failed to contact the children or attend their extra-curricular activities over a significant period in 2019.

12. The parties agreed that they would attend upon Ms D for family therapy with a focus on re-establishing the children’s relationship with the applicant.

13. The children met with the applicant on 30 October 2019 being the first physical contact for a number of months.

14. The respondent considers that the only viable way forward is to continue the therapeutic intervention with Ms D, whereas the applicant considers that involving the children with ongoing therapeutic intervention is not in their best interests.

15. The applicant disputes the respondent’s assessment of the history of his interaction with the children and states that in the months of April and May 2019 he attempted to make contact with the children on a number of occasions.  He considers that his inability to contact the children could only be explained by the respondent taking steps to distance the children from him.

16. The inability of the parties to reach any common position is exemplified by the respondent’s assertion that the applicant made no attempt to contact the children for Christmas and she highlights the children’s distress at not having received a Christmas present from him.  The applicant counters the respondent’s allegation and states that he still has the children’s Christmas presents and that it is the respondent who is not prepared to facilitate the applicant’s relationship with the children.

Parenting considerations

1. By necessary implication, the respondent’s final orders sought do not envisage the applicant having a meaningful relationship with the children.  It is not intended that the applicant be involved in the children’s day to day and routine activities.  It is not envisaged that the applicant’s relationship with the children will be a caring relationship and in any event any opportunity for the children to spend time with the applicant will be subject to their wishes.

2. In submissions, the respondent did consider that it may be important to the children that they have a relationship with the applicant but that she could not see how that could be easily achieved given the children’s overt opposition to either communicating or coming into contact with him.

3. The respondent’s default position is to propose a resumption of therapeutic intervention with Ms D.  The last therapy session between the children and the applicant occurred on 23 December 2019.  The respondent observed that the session ended early and the children returned to her in a state of distress.  In her progress reported dated October 2019 Ms D refers to the therapeutic sessions in August and September 2019.

4. The children were prepared to interact with the applicant at the earlier session and it is a reasonable observation that a significant issue for the children was their opposition to Ms B.  X was observed to be predominantly negative about Ms B and complained that she did not treat Y well and that she insults the respondent.

5. Ms D considered that X could spend time with the applicant in the absence of Ms B.  Y was prepared to silently witness any interaction between the father and X and may be prepared to join in.

6. The progress was such that Ms D records X’s plan for reconnecting with the applicant comprising telephone contact, a joint meeting involving Ms D, a series of fortnightly dinners and then a gradual reintroduction of the children spending extended time with the applicant.

7. Y was recorded as being able to recall positive memories of his time with the applicant and that when his parents were together the hostility and anger now on display was not evident.

8. Y told Ms D that it was “kind of hard”[1] not having a relationship with the applicant. 

   [1] Affidavit of the respondent filed 13 May 2020, annexure 2, page 17.

9. In concluding her October 2019 report Ms D noted that the “momentum to the reunification process”[2] would rapidly increase if the children had the experience of the applicant being more attuned to their needs and anxieties.

   [2] Affidavit of the respondent filed 13 May 2020, annexure 2, page 18. 

10. With some reasonable basis for doing so, the therapeutic process continued in October 2019 to December 2019.

11. It appears that the children were increasingly reticent in their preparedness to come into contact with the applicant.  Y was recorded as not feeling safe with the applicant, however, when he did engage with the applicant and X Ms D observed the children were “animated, relaxed and that Y demonstrated proximity seeking behaviour towards his father”.[3]

    [3] Affidavit of the respondent filed 13 May 2020, annexure 3, page 22. 

12. At the last session Ms D records that the applicant displayed an emotional outburst which distressed and upset the children.  The result was that they refused further interaction with the applicant.

13. Ms D considered that the applicant appeared no longer to accept that his relationship with the children was controlled by them and that he was powerless to have his concerns given any weight.

14. Ms D viewed the applicant’s response as lacking in insight and that his behaviour “has potentially done irretrievable damage to his relationship with the children”.[4]

    [4] Affidavit of the respondent filed 13 May 2020, annexure 3, page 24. 

15. Ms D was not able to recommend further therapeutic intervention and to persist may be psychologically damaging to the children.  Ms D considered that the applicant was not attuned to the children’s emotional needs.

16. The applicant does not seek to engage in further therapy or counselling with Ms D.

17. In those circumstances, it is difficult to see how an order could or should be made in terms of the respondent’s orders sought.  There is no good purpose that could be served by requiring the parties or the children to engage in ongoing therapeutic intervention.

18. There is nothing from Ms D which would provide some support for the respondent’s proposal.

19. The consequence of that determination is that either orders be made that the children resume some time with the applicant or pending final determination the children will not have a relationship with the applicant.

20. The parties agreed to appoint Ms C to assess the family dynamics and prepare a family assessment report for the purposes of the current proceedings.

21. As discussed, Ms C has prepared two reports.

22. The tragedy of the predicament in which the children find themselves can be seen by reference to Ms C’s assessment of the children’s relationship with the applicant in the first report.  Ms C records that X “seems to have a good and warm connection with him”[5] and “was positive about his father and when asked, told me that he is closer to his mother than to his father, but that if he spent more time with his dad he would probably feel closer”.[6]

    [5] Affidavit of Ms C filed 6 March 2020, annexure 1, page 19.

    [6] Affidavit of Ms C filed 3 March 2020, annexure 1, page 19. 

23. X recorded that it was the reactions of Y that had an impact on his preference to spending more time with the applicant.  As at 13 June 2018 Ms C recommended that the children remain living with the respondent but spend significant and substantial time with the applicant.

24. In her second report Ms C noticed that the potential for a relationship between the applicant and the children had significantly diminished.  The children were negative about the applicant and in particular Ms B.  They impressed as being critical and disrespectful of the applicant and whilst X was prepared to consider the possibility of a dinner and an activity with the applicant once a week, the proposal was rejected by Y.

25. Ms C was also of the view that the way forward was not “any sort of reunification therapy”[7] but rather, required the parties to come to an agreement about the time that the children spend with the applicant.

    [7] Affidavit of Ms C filed 3 March 2020, annexure MsC3, page 42.

26. Ms C did not consider that the children should be given a choice as to the circumstances in which they were to see the applicant but rather, the relationship needs to be the subject of a Court order.

1. Ms C considered that there should be a normalising of the relationship between the applicant and the children, particularly in circumstances where the relationship had been one of benefit to the children and without rancour.

2. Ms C considered that if the parents showed a united front then the children may well adjust, but that as a starting point time spent should be restricted to a few hours a week in the absence of Ms B.

3. There is a consistency of opinion between Ms D and Ms C in that if the extent of interaction between the children and the applicant is to be determined according to their wishes, then there will be no relationship.

4. I am not satisfied that I should give such weight to the children’s wishes where the inevitable consequence is that they will not have any relationship with the applicant at all.  It is not seriously suggested that the applicant presents as an unacceptable risk.

5. Given the respondent’s submissions, I am not confident that she will consider such an outcome to be in the best interests of the children.

6. The parties are unable to find a way forward, but in circumstances where in early 2019 the children were observed to interact well with the applicant, there is merit in Ms C’s consideration that Court intervention is required given the risk that the current circumstances may well become entrenched and make the task of supporting the children’s relationship with their father insurmountable.

7. I give careful consideration to the concern of Ms D that further engagement with the children in a therapeutic process may well result in emotional or psychological harm arising.

8. Ms C does not put the risk so highly and considers that the harm that could be occasioned to the children by severing their relationship with the father entirely is the least acceptable outcome.

9. The final hearing will be an opportunity for the issues affecting the children to be explored, however, in circumstances where it is conceded that there is advantage in the children maintaining a relationship with the applicant providing it is safe to do so, in the absence of the parties being able to reach an agreement as to the ongoing interim arrangements, the Court is obliged to intervene.

conclusion

1. I do not propose to make any order at this stage that would change the current interim order of equal shared parental responsibility.

2. It is self-evident that the children should live with the respondent but I consider that they should spend time with the father each Monday from the conclusion of school (or 4.00 pm if not a school day) until 8.00 pm upon the condition that Ms B will not be present.

3. I do not propose to order the further extension of time as proposed by the applicant in [4.2] of the interim application but rather will allow for such other times as may be agreed between the parties or as requested by the children.

4. There may well be some advantage in Ms C undertaking a further brief assessment at a time closer to trial.  I do not order a further assessment and report take place in circumstances where I do not know whether Ms C has any availability to assist the parties and the Court.

5. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 June 2020.

Associate: 

Date:  17 June 2020