Peter and Elspeth
[2009] FamCA 551
•25 June 2009
FAMILY COURT OF AUSTRALIA
| PETER & ELSPETH | [2009] FamCA 551 |
| FAMILY LAW – CHILDREN – With whom a child spends time – time with non-resident parent – parental responsibility – application to discharge orders – absence of meaningful relationship with father – no prospect of establishing meaningful relationship – children and mother Exclusive Brethren – mother’s health – best interests of children |
| Family Law Act 1975 (Cth) |
| McCall & Clark [2009] FamCAFC 92 Malak & Mairie [2009] FamCA 268 |
| APPLICANT: | Peter |
| RESPONDENT: | Elspeth |
| INDEPENDENT CHILDREN’S LAWYER: | P.L. Corby & Co |
| FILE NUMBER: | HBC | 748 | of | 2007 |
| DATE DELIVERED: | 25 June 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 27, 28, 29 and 30 January 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Ackman QC with Ms MacMillan |
| SOLICITOR FOR THE RESPONDENT: | Murray & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Waterhouse |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | P.L. Corby & Co |
Orders
That all extant parenting orders and injunctions which relate to the children of the marriage J born … January 1994 and C born … December 1998 (“the children”) be discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That the mother be restrained:
(a)from discussing the father’s leaving of the Exclusive Brethren faith or the father’s lifestyle; and
(b) denigrating the father
in the presence or hearing of the children and from allowing any other person to do so in their presence or hearing.
That the mother forthwith authorise the principal of O School to provide to the father, at his expense (if any) a copy of:
(a) each school report for J and C;
(b) an order form for each school photo of J and C; and
(c) newsletters or other publications routinely provided to parents
and the father be at liberty to discuss the children’s educational progress with the principal provided that:
(i)if the father wishes to attend the school to do so, he makes an appointment prior to his attendance; and
(ii)such appointment is made for a time at which J, C, the mother or a sibling of J and C, are not likely to be on the school premises.
That the Independent Children’s Lawyer serve a sealed copy of these orders on the principal of O School within 7 days of receipt of such sealed copy from the Registry.
That the mother advise the father in writing of any serious illness or injury experienced by J or C, such notice to be given as soon as practicable after such illness is diagnosed or injury suffered.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the application filed by the father on 18 June 2007 and the response filed by the mother on 13 July 2007 be otherwise dismissed.
That the contravention applications filed by the father on 31 May 2007 and 15 June 2007 be listed at 10.00am on 20 July 2009 for the making of submissions directed to their disposition and:
(a)the Independent Children’s Lawyer have leave to make a submission, if he considers it in the best interests of the children to do so; and
(b) the parties may appear by telephone.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel and solicitors appearing as counsel.
AND THE COURT NOTES
That no orders provide for the father to spend time or communicate with the children.
IT IS NOTED that publication of this judgment under the pseudonym Peter & Elspeth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: HBC 748 of 2007
| PETER |
Applicant
And
| ELSPETH |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
Legal Principles
Terminology
Parties and family members
Evidence
Litigation history
Final orders sought
New facts and circumstances
Benjamin J’s findings
Father’s time with the children since orders of 21 December 2006
Children’s present routine
Primary Considerations
Additional Considerations
Parental responsibility
Residence
Time
Communication
Counselling
Injunctions
Other orders
Contravention applications
Introduction
One could summarise this case in this way. It concerns the living arrangements and parental responsibility for J and C, the youngest of the parties’ eight children. J is fifteen and C is ten. The children have been the subject of extensive litigation since their parents separated in February 2003, when J was nine and C four.
Orders made in December 2006 by Benjamin J provided for equal shared parental responsibility and for J and C to live with their mother and have frequent and regular time with their father. When that did not occur, the father brought contravention proceedings against the mother, and against another of the parties’ adult sons and the husband of one their adult daughters who, he claimed, had aided and abetted the alleged contravention. Benjamin J found the contravention proven against all three respondents. In due course, all convictions, save that of the mother, were quashed. While the Full Court upheld the trial judge’s decision to find the contravention proven against the mother, it found the sentence imposed by Benjamin J (a sentence of imprisonment, suspended on terms) not open. By the time the Full Court re-exercised the sentencing discretion, the wife was mortally ill, having been diagnosed with a recurrence of breast cancer and extensive secondaries in May 2007. The Full Court required the mother to pay costs but imposed no other sanction.
For a short period in 2007 the children J and C did see their father, an arrangement which broke down in late April 2007. The father filed further contravention applications in May and June 2007. In June 2007 the father filed an application in which he sought that the children move immediately to live with him and spend time with their mother. In response, the mother sought sole parental responsibility for the children and the discharge of all orders requiring them to spend time or communicate with their father. It is those applications which the court is asked to determine. Save for a short period at a contact centre in January 2008, the children have not spent time with their father since late April 2007.
What is absent from that account is a crucial factor. For the whole of their lives together, the parties and the eight children of their marriage were members of the Exclusive Brethren faith. The father’s decision to leave the faith precipitated the parties’ separation in 2003 and ultimate divorce. The mother and all of the children remain members of the faith. It is tempting to qualify their membership or adherence by using adjectives such as devout, staunch or observant but the evidence satisfies me that those words would be seen as superfluous by the mother, the lay witnesses on whom she relied and, indeed, by the children.
The mother, the children, and the Exclusive Brethren community of which they are part, live their lives according to the tenets and practices of their faith. Their conviction informs their actions; it is the bedrock on which their lives are constructed. It may not be too strong to say that their conviction is as vital to them as the air they breathe; they perceive a life lived outside their faith as unsustainable.
That religious conviction can be lost or discarded or changed is obvious; the father’s abandonment of his own long held beliefs is evidence of that. The court cannot speculate on the probabilities of J and C remaining members of the Exclusive Brethren for the whole of their lives. It can find on the evidence that each of them, to an extent commensurate with his or her age, currently embraces and lives within the faith in which they have been reared.
Most of the time, the father characterised his application as one founded on J and C’s perceived legal right and emotional need for a relationship with both parents, rather than a desire for them to experience life outside the constraints (as he now sees them) of the Exclusive Brethren faith and the authority of its Elders, which he now views as pernicious. Most of the time, the father denied that his was a crusade against the faith.
I do not doubt that the father longs for a meaningful relationship with J and C and grieves its current loss. Perhaps inevitability, he cannot separate that grief from anger at the institutions and beliefs which he sees as responsible for cutting him out of their lives and the lives of his other children and grandchildren. Despite his rhetoric, it was difficult for him not to see the case, at least in part, as a duel between law and religion, which it is not.
The father may have drawn support for that dichotomy from an unusual coda to the judgment of Benjamin J of 21 December 2006 which is a transcript of remarks his Honour directed, sequentially, to the father and his now wife, the mother, the parties’ adult children and other relatives, Exclusive Brethren Elders and, finally, to J and C and their sister L (who was then 17 and the subject of that litigation) after making the orders which provided for the three children to spend time with their father, against their expressed wishes. The annexure has as its heading the biblical quotation “Pay what is Caesar's to Caesar, and what is God's to God” and when speaking directly to L, C and J his Honour drew on that source, remarking:
The law provides that you are entitled to know your father and spend time with him and he with you. I have determined that there is a benefit to each of you in having a meaningful relationship with him. I expect that the adults around you will obey these orders and that they will render to Caesar what is Caesar’s. You may have been told these orders only apply until you are 16. That is not the case. You are subject to the supervision of this court until you are 18.
I cannot say what the children made of these admonitions or of hearing Benjamin J speak of the potential for imprisonment and “hefty fines” to be imposed on adult family members if they did not spend time with their father.
Legal Principles
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s. 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC(2) which, in some instances, are further elaborated in s.60CC(3) and (4).
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA(1)). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence (s.61DA(2)) and it may be rebutted if the evidence establishes that equal shared parental responsibility would not be in the child’s best interests (s.61DA(4)).
If the presumption applies and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable and, if it is, consider making an order to provide for that outcome (s.65DAA(1)). If no such order is made, the court must consider whether spending substantial and significant time with each parent would be in the child’s best interests and reasonably practicable and, if it is, consider making an order to achieve that outcome (s.65DAA(2)). The factors relevant to determining what is “reasonably practicable” are stipulated in s.65DAA(5) and “substantial and significant time” is defined in s.65DAA(3).
In McCall & Clark [2009] FamCAFC 92 the Full Court recently considered s.60CC(2)(a) and, in particular, the meaning of “a meaningful relationship” and the approach to be considered when determining whether such a relationship would be to the “benefit” of the child. In that case the mother and a young child were living in Dubai at the time of the hearing and the father sought the child’s return to Brisbane. The Federal Magistrate who heard the trial made orders allowing the child to live with the mother in Dubai. The father appealed. The Federal Magistrate had found that a meaningful relationship between the father and the child did not exist. The Full Court found that he had not given adequate consideration to the benefit of the child having an opportunity to form a meaningful relationship with his father. At paragraphs 118 to 122 the Full Court found:
118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121. In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Section 60B of the Act sets out the objects of Part VII (being the part of the Act which deals with children) and the principles underling Part VII, as follows:
(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.
(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).
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary consideration when determining where a child’s bests interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility will not apply, those circumstances relating to findings about child abuse and family violence. The principles which underlie the objects are not unqualified, but subject to a child’s best interests.
Terminology
To avoid confusion, the first names of all of the parties’ children will be used, rather than their surnames. Passages quoted from affidavits or other documents are recorded as written, without reference to grammatical or spelling errors, or correction.
Parties and family members
The husband is fifty-two. He came into the Exclusive Brethren community when he was about five, with his mother. His father never came into fellowship and he grew up without a father. He remained part of the community for over 40 years, leaving in early 2003. After separation, the father changed his surname; the mother and the children of the marriage all retain the father’s original surname.
The husband and his wife live in P, which is about an hour and a half from L. They married in March 2007. He is self employed and normally works from about 8:30am until 4:30pm or 5:00pm on weekdays. Asked about his income, he said he could not remember and that his books were all with his accountant; he said he knew he had an $8,000 tax bill. A child support agreement between the parties lapsed in late 2008; the father said he was not aware of that and had received no correspondence from the Child Support Agency.
The father’s new wife Ms M works two and a half days a week as a technician.
The parties’ older children are W (30), M (29), G (24), T (23), ME (20) and L (18).
W is married to Mr A, with whom she has a daughter, who is seven. M is married to Mr S; they have three children aged six, four and two. G, too, is married.
The mother is fifty and lives in L with T, ME, L, J and C. In July 2008 W and her husband and daughter relocated to L from D to assist her. W and her husband are partners with Mr A’s brother and sister-in-law in a business and Mr A presently travels between L and D for business each day. The trip takes less than one hour however Mr A hopes to extend the business to create sufficient work in L to enable him to work there for at least part of the week.
At the time of the trial W and Mr A were selling their home in D and planned to purchase a house in N, which is the suburb in which the mother and children live. Until then, they will remain living with the mother in the large family home and W, and to a lesser extent, Mr A, have taken over significant responsibility for the practical care of J and C, as well as their emotional care. The mother now has very little involvement in the business of which she is the proprietor and in which ME and T work.
Evidence
The father relied on an affidavit sworn by him on 22 December 2008. Prior to him giving evidence, I summarised for him the various affidavits sworn by him and filed earlier in the proceedings, including those filed in support of the two contravention applications and the application for interim orders. He confirmed that he did not seek to rely on that material but would be making reference to the December 2006 decision of Benjamin J and evidence referred to in it. In the summary of argument tendered on 29 January 2009 he listed the documents on which he relied. Several were removed from the list after further discussion; these were an affidavit filed by the mother on 31 January 2007 and documents recorded as “family report interviews” on 4 and 5 August 2008, the latter a reference to interviews with Ms SN as part of the process which culminated in her family report of 13 August 2008.
The father is married to Ms M. He often spoke of them as an entity and of, for example, their joint capacity to provide for the children’s needs. He filed no affidavit sworn by her and did not seek to call her.
The mother relied on an affidavit affirmed by her on 22 December, 2008, together with affidavits of the parties’ daughter, W, and her husband, Mr A, both affirmed on 23 December 2008.
A body of expert medical evidence was before the court. Dr B swore an affidavit on 28 September 2007; Dr RF swore an affidavit on 1 October 2007. Reports from Dr W dated 3 April 2008, 5 May 2008 and 31 October 2008 were adduced into evidence. The most recent expert report was that of Dr W, the mother’s oncologist, dated 31 October 2008.
At the commencement of the trial on 27 January 2009, senior counsel for the mother tendered a report from Tasmanian Pathology Service noting the increase in CA 15-3 readings between 20 October 2008 and 7 January 2009. Normal readings fall within the 0 – 31 range; the mother’s reading was 57 on 20 October 2008, 56 on 19 November 2008, 64 on 8 December 2008 and 68 on 7 January 2009. From a medical perspective, that is not good news.
The father advised the court that he did not contest any of the expert medical evidence adduced by the mother since her diagnosis in May 2007. In those circumstances, no medical practitioner was called for cross-examination and I act on the various expert reports.
Before the court was Ms SN’s family report dated 13 August 2008. Further family reports prepared by Mr CH on 28 October 2005 and 16 March 2006 are referred to in Benjamin J’s judgment of 21 December 2006 but Mr CH was not a witness in this trial.
All witnesses (save medical experts) were cross-examined.
The court can find that each of the parties, their daughter W and her husband Mr A did his or her best to tell the truth. No doubt it was difficult for the father to cross-examine members of his family and he did so with courtesy. In turn, each responded directly and in a civil tone. The circumstances of the family breakdown, the years of litigation and the mother’s illness have impacted on each of them.
The father was usually direct and occasionally emotional. He said “it’s a struggle, not a fight, between the church and me” and that struggle informed his evidence. He is implacably opposed to the church of which he was once a member.
The mother gave her evidence in a composed and steadfast fashion. She looked strained and weary and it was necessary to adjourn on a couple of occasions to allow her to rest. Her evidence was candid and consistent.
Mr A was an impressive witness. The father had deposed to “having doubts” about the evidence of W and her husband. He said that “things were going on” in the house with which he would not agree and he queried Mr A’s capacity to care for children of C and J’s ages. He went on to complain that Mr A had not asked him for permission to marry his daughter and said “[Mr A] has a history of immoral conduct with a junior on more than one occasion”.
It transpired that when Mr A was twelve he was, to use his words, involved in something unclean with a girl. A number of children were playing after a meeting and he had a little girl on his back, piggy backing her. He said he touched her through her dress, on her private parts. Later that day the father of the girl and another member of the Exclusive Brethren came to his home and excommunicated him. He was withdrawn from, which meant he could not go to church meetings. Although his parents were not withdrawn from, and were allowed to care for him, they, too, were precluded from meetings. After twelve weeks the men visited again and told him he was free to return.
In early 2002, some twelve to fourteen years later, this decision was reviewed by the church and those who “looked into it” found that it was a wrong judgment and he should not have been withdrawn from, because he was a child.
Mr A also said that when he was growing up, and an inquisitive child, he and a younger boy had shown their private parts to each other; this was when he was about eight or nine.
Mr A is now thirty-two. Nothing in the evidence satisfies me that C is at risk of being sexually abused by him. I doubt the father genuinely believes there to be such a risk and he did say that his daughter “is a respectable woman and would not be a party to it”.
The father’s complaint about Mr A’s proposal to W could have no relevance to the case and, I am satisfied, was groundless. The evidence satisfies me that Mr A did ask the father if he could marry W; indeed, at that time he told the father that he would like to tell him his history (a reference to the incident when he was twelve), to which the father replied that he knew Mr A had been forgiven and the matter was “finished and gone”. The father’s real complaint was that Mr A, who lost his own father and was close to an uncle, spoke to that uncle before speaking with the father.
W, too, was an impressive witness. She and her husband have relocated in order to support the mother and the children, whom they love. Ms SN reported that when they spoke with her, both parties were very complimentary about W, and the father referred to her mothering abilities and organisational skills. Ms SN described W as a quiet, gentle natured woman, who is extremely warm and nurturing towards her younger siblings.
The father was critical of Ms SN. He said he was not happy with the way she dealt with him, complaining that although she was courteous and polite, he felt her mind was made up “before she started”. He complained that she would not come to P to see his home and would not see his wife. I do not find substance in these criticisms. It was no part of the mother’s case that the father’s home was physically inappropriate. It was a matter for Ms SN to make a professional decision about speaking with Ms M. Having regard to all the evidence it is probable the children would have been even more intransigent if Ms M had been involved and the father himself did not seek to call her to give evidence.
Ms SN spoke with the mother (at the direction of the court) twice before the family report was ordered, visits undertaken to ensure she had the opportunity to meet with her before – then conceivable on the medical evidence – she died. The mother was not well enough to attend the scheduled interview for the family report. Ms SN collected some notes from the mother’s home; the mother was feverish and confined to bed and Ms SN determined it was inappropriate to engage her in any further discussions.
Ms SN’s evidence was cogent, reflective, balanced and insightful and I place weight on it.
Litigation history
On 21 December 2006, after a nine day trial, Benjamin J made final parenting orders in respect of three of the parties’ eight children. The three were L born in December 1990, J born in January 1994 and C born in December 1998. Orders provided for the parties to have equal shared parental responsibility for the children and for them to live with the mother. L was to spend short periods of time with her father; C and J were to be with him during school terms from 10:00 am. Saturday until 3:00 pm. Sunday on each alternate weekend, in the first week of each of the mid-term school holiday periods, for a week in January and on special days.
That the mother filed a Notice of Appeal against these orders is clear from a judgment of Benjamin J of 19 February 2007, when he dismissed her application for a stay of the orders of 21 December 2006, save in respect of the father’s time with L. That appeal was subsequently withdrawn.
On 15 January 2007 the father filed a contravention application in which he alleged the mother had contravened paragraph (4)(c) of the orders of 21 December 2006 and that the parties’ son, G, and son-in-law, Mr S (the husband of their daughter M) had aided and abetted the mother in that contravention.
Paragraph (4)(c) of the orders of 21 December 2006 provided for C and J to spend time with the father “from (sic) one week from 1 January in each year”. On its face, nothing in the order required the children to be made available for time with their father on 14 January, as opposed to 1 January. The contravention application was heard and determined on 20 February 2007 and the judgment makes no reference to this discrepancy. The evidence adduced in the contravention proceedings was not before this court (save insofar as it was canvassed in Benjamin J’s judgment) and it may have provided an explanation.
A summary of relevant events on 14 January 2007 can be found in the judgment of the Full Court of 5 July 2007 ([2007] FamCA 655) in which the Full Court determined appeals filed by the three respondents to the contravention application of 15 January 2007. Suffice to say that the father attended the mother’s home to collect J and C. The children’s suitcases and a communication book were waiting outside the door. When the father knocked on the door both the children came to the door and immediately said “I’m not coming with you”. The children failed to provide him with a reason for their refusal, save that C said “it’s all your fault”. G and Mr. S were present at the home. Several endeavours by the father to persuade the children to come with him, and intervention by local police, proved fruitless. After about two hours, the father left the premises.
On 20 February, 2007 Benjamin J found each of the alleged contraventions proven. The mother, G and Mr. S were each sentenced to imprisonment for four months, suspended upon terms for a period of twelve months. His Honour ordered that by way of compensatory time, J and C spend time with the father from 5:00 pm on 8 April until 9:00am on 15 April 2007. He varied the orders of 21 December 2006 to provide :
. . . that the children are to be delivered to the father at his home in [P] by the mother or on behalf of the mother and if on behalf of the mother, to be by one of the adult female siblings of the children (including [ME]) or such other person as is agreed in writing between the parties. AND IT IS NOTED that the mother may bring with her any of the adult female daughters of the parties such as she considers appropriate.
The then adult female siblings were W, who lived with her husband and children in D; M, who lived in L with her husband and two children; and ME, who turned eighteen in October 2006 and had no driver’s licence. I cannot say if the court had enquired whether W or M was prepared to deliver the children to P, or to accompany the mother.
The orders provided for J and C to be returned to the mother’s home at the conclusion of time with the father.
Within days of the orders of 20 February 2007 the mother was admitted to Hospital and placed under the care of Dr. RF, psychiatrist. In a report dated 1 June 2007 Dr. RF reported (having first seen her on 23 February 2007) that the mother was completely, although temporarily, prostrated by the outcome of the contravention proceedings. He diagnosed an adjustment disorder with depressed mood.
J and C spent the weekends of 10 March 2007 and 24 March 2007 with their father pursuant to Benjamin J’s orders. Orders provided for them to be with him for a week in the first school term holidays and they stayed with him between 9 and 15 April 2007. On 28 April 2007 J and C went to the father’s home for weekend time. A disagreement between J and the father about J’s attendance at a special Exclusive Brethren meeting that day ended with J, then aged thirteen, curled in a foetal position in a partly built cubby house in a tree, a stand-off only resolved when the father called an ambulance. The children returned to their mother’s home the next day; they have not been to their father’s home since.
Each of the respondents to the initial contravention application appealed. The mother sought a stay of Benjamin J’s orders of 20 February 2007, pending the determination of her appeal. That application was heard by Benjamin J on 13 March 2007. His Honour stayed paragraph (5) of his orders and provided for the respondents to pay all the costs of the father and the independent children’s lawyer in respect of the contravention proceedings. The stay application was otherwise dismissed. In his reasons his Honour noted that the three children spent time with their father in accordance with the earlier orders on 24 February and 10 March 2007 and it was :
. . . an agreed fact that handover occurred, not in the way envisaged by the order, but in another way which was in accordance with agreements between the parties.
In May 2007 the mother was found to have a recurrence of the breast cancer for which she had been treated in January 1999, with extensive liver and bony metastases. In lay terms the diagnosis was of a terminal illness. She commenced an intensive palliative regime in June 2007; information given to her then suggested a life expectancy of three to six months.
Dr. RF’s evidence was that news of an incurable and eventually fatal disease affected the mother significantly less than the outcome of the contravention proceedings in February.
In his report dated 1 June 2007 Dr. RF reported :
There is theoretical reason to believe, but not rigorous proof, that the suppression of normal body defence mechanisms by acute stress enhances the risk of survival of isolated cancer cells that are capable of producing a recurrence of pre-existing cancer, if not initiating cancer. The postulated mechanism involves the decreased activity of NK cells (NK stands for natural killer, because these cells destroy abnormal cells without the intervention of immune mechanisms involving antibodies).
On 31 May 2007 the father filed another application seeking that the mother be dealt with for contravening the orders of 21 December 2006, as varied by the orders of 20 February 2007. He alleged that the mother failed to make L, J or C available to spend time with him on 26 May 2007, pursuant to the orders. In support of that application he filed an affidavit sworn on 29 May 2007.
A fortnight later, on 15 June 2007, the father filed another application for contravention, supported by an affidavit sworn 13 June 2007, alleging that the mother contravened the orders by failing to make J and C available to spend time with him on 2 June 2007.
On 15 June 2007 the father also filed an application in a case, seeking interim orders. At that time there was no application for final orders on foot, as all extant applications had been dismissed by Benjamin J in December 2006. In the interim application the husband sought that paragraph (4) of the orders of Benjamin J of 21 December, 2006 be discharged, that J and C live with him and, until further order, spend time and communicate with the mother on each second weekend, half of Tasmanian Gazetted school holidays, and at such other times as agreed. The application specified that the alternate weekend time be “dependent upon the mother being physically and mentally able to care for the said children.” It was supported by a second affidavit sworn on 13 June 2007.
Three days later, on 18 June 2007, the father filed an application for final orders in which he sought orders in the same terms (but on a final basis) as those in the interim application filed a few days earlier.
On 5 July 2007 the Full Court quashed the convictions (and thus the sentences) of G and Mr. S, finding that nothing in the orders of 21 December, 2006 placed any onus on either to assist or encourage compliance with the order and that no findings by Benjamin J could amount to aiding or abetting the mother in her contravention of the orders. The Full Court dismissed the mother’s appeal against conviction and gave directions for the filing of written submissions on the question of penalty and costs.
On 30 July 2007 Benjamin J disqualified himself from hearing any further application in the proceedings. All extant applications were adjourned to 3 August 2007 for directions.
Orders made on 3 August 2007 required the mother to file expert evidence of her diagnosis, treatment and prognosis and adjourned all extant applications to 22 October 2007. Dr. RF swore an affidavit, responsive to questions set out in those orders. He believed the mother had the capacity to give valid instructions to her legal practitioners prior to and in the course of a court hearing, but that it was not possible to predict with reasonable certainty what her condition may be on any day between her next episode of chemotherapy (scheduled for 27 September 2007) and 22 October 2007. Again, it was not possible to predict with reasonable certainty whether she would be fit to attend court, whether by electronic means or in person, on 22 October 2007. At the time of his report he considered she would be fit to give oral evidence and be cross-examined but may require rest periods if the cross-examination were lengthy. Dr. RF’s evidence was that fatigue and chemotherapy treatment can cause short term memory problems in patients and while he was satisfied the mother was not suffering memory problems which would affect her capacity to give instructions and evidence at that time, he could not predict with any reasonable certainty her condition on 22 October 2007.
Dr B, the oncologist then treating the mother, swore an affidavit on 28 September 2007 in which he, too, addressed the questions referred to in the orders of 3 August 2007. Like Dr. RF, he was not able to accurately predict the mother’s capacity to give valid instructions to legal practitioners in the course of a hearing on 22 October 2007 or her physical capacity and short term memory on 22 October 2007. He shared Dr. RF’s opinion that it would be important for the mother to be reassessed as to her capacity to give evidence and appear at court shortly prior to any hearing. Dr. B’s opinion was that the mother should be given ample opportunities to rest if she had to give oral evidence and that any period in the witness box be limited to a maximum of two hours on any one occasion, with a minimum of at least a two hour break to give her an opportunity to rest.
On 13 September 2007 the Full Court upheld the mother’s appeal against penalty and, in lieu, ordered her to pay $4,000 towards the husband’s costs.
On 22 October 2007, the court determined that, on balance, it could not be confident about the mother’s capacity to defend the contravention proceedings and the application for interim orders in the short term and adjourned all applications to 7 April 2008.
It should be said that while the father was keen to have his applications heard, his sympathy for the mother’s predicament was apparent. At that time the father was legally represented and his counsel made it clear that he did not press his applications for contravention and for interim orders, despite not having seen J and C since April 2007.
On 5 January 2008 the father spent time with the children at a Contact Centre, pursuant to an agreement between the parties.
On 29 January 2008 the date of 7 April 2008 was vacated and after hearing submissions from the parties, the applications were adjourned to a date in June 2008.
On 26 June 2008 the father’s solicitors filed a Notice of Ceasing to Act and from that time he represented himself.
On 27 June 2008 the father’s application for interim orders was listed in Launceston. Evidence was given by Ms. SN, the family consultant assigned to the case. After hearing submissions, the court dismissed the father’s application for interim residence of J and C.
The medical evidence before the court at that time did not alleviate the earlier concerns about the mother’s capacity to take part in contested legal proceedings in which she would need to give evidence, including her capacity to defend the two contravention applications and the father’s application for final residence orders in his favour.
A report of her then oncologist, Dr. W, dated 3 April 2008, described an initially good response to chemotherapy and a decrease in the metastatic disease in the liver. He assessed her life expectancy then as better than three to six months, while making it clear that the situation was palliative and there was no cure for her. A subsequent report from Dr. W dated 5 May 2008 added little to this diagnosis, dealing in the main with the side effects of the chemotherapy and the question of her psychological status.
Nevertheless the court ordered the preparation of a family report by Ms SN, a report deemed essential for a trial. In an attempt to clarify the respective positions of the parties, orders provided for the parties to set out the final parenting orders they sought in letters, to be exchanged.
On 22 October 2008, the father filed a letter, in which he set out the final orders sought, as follows :
1.That the contravention applications outstanding relating to [the mother] be dismissed subject to compliance with Order 3.
2.That during the mothers current illness the children live with their mother subject to Order 3.
3.That during the period of the mother’s current ill health the children [J] & [C] recommence ‘spend time with’ twice every month with their Father. From Friday 5.00 pm till Sunday 3.00 pm as per Justice Benjamin’s Orders and Amendments dated 21-12-2006 and 20-02-2007.
4.Upon the Mothers decease that the children [J] and [C] live with their Father.
On the same day, the mother filed a letter in which she set out the final orders sought by her, as follows:
1.That all extant Orders be discharged.
2.That the two (2) children [J] born the […] January 1994 and [C] born the […] December 1998 live with the mother during her lifetime.
3.That in the event of the death of the said mother that the two (2) said children live with their Brother-in-Law [Mr A] and sister [W].
4.That during her lifetime the mother have the sole parenting responsibility for the two (2) said children.
5.That in the event of the death of the said mother that the said [Mr A] and [W] have equal joint parenting responsibility for the two (2) said children.
6.That there be no Orders providing for the two (2) said children or either of them to spend any time with or to communicate with the father.
7.That the outstanding Contravention Applications of the father filed 31st May 2007 and 15th June 2007 be dismissed.
8.That all extant Applications be dismissed.
On 30 October 2008 the father sent another letter to the court and the other parties in which he “rejected” the orders set out in paragraphs 1, 3, 4, 5, 6 and 8 of the mother’s letter of 22 October 2008 and “accepted” those in paragraphs 2 and 7, “subject to our proviso parenting Order 2 & 3 (dated 22-10-2008).”
On 14 November 2008 further medical evidence was before the court which indicated that the mother had responded better than anticipated to the palliative regime. While her disease remained terminal, Dr. W’s opinion was that her life expectancy could be between one and five years.
The court determined that it would be inappropriate to join W and her husband given the medical evidence and the impossibility of determining when the children would lose their mother. On that day, directions were given for a trial to commence in Launceston on 27 January 2009. Each of the parties filed affidavits pursuant to that direction.
When the hearing commenced on 27 January 2009 there was some confusion as to whether the contravention applications had been adjourned to the trial date for hearing or for mention. In his letter of 22 October 2008 the father proposed he withdraw the contravention applications if certain orders were made. Senior counsel for the mother resisted a suggestion by the court that the contravention applications be heard immediately, prior to the cross-applications for final parenting orders. The process suggested by the court could not have been followed without the consent of the parties and, in the absence of that consent, the contravention applications were adjourned to a date to be fixed and the trial of the competing applications for final parenting orders commenced.
When the trial concluded on 30 January 2009, all extant orders which provided for the father to spend time with J and C were suspended, pending judgment.
Final orders sought
Pursuant to trial directions, the father swore an affidavit on 22 December 2008 which was filed the following day. It is a short affidavit. Notwithstanding the contents of his letter of 22 October 2008, in paragraph 9 of this affidavit he made it clear that he maintained the application for residence of both children, initially made in June 2007. When the trial commenced he was given an opportunity to clarify the specific orders sought by him, and confirmed that the orders sought in that application filed 15 June 2007 were those he sought in the trial.
When commencing his final submissions, the father tendered a detailed minute of the final orders then sought by him; given its length, a copy is annexed to this judgment marked “A”. In essence, the father sought equal shared parental responsibility for J and C. He abandoned his application for an order requiring J to live with him and, in lieu, sought that J spend time with him on one Saturday a month during school terms from 10:00 am until 1:00 pm, the first two days of each school holiday period, on Father’s Day and at such further times as were agreed between J and the father. The father maintained his application for C’s residence and sought that she spend alternate weekends with her mother during school terms, as well as the first week of each term holiday and one week in January.
Other orders related to the delivery of the children, the sending by the mother of correspondence to C, the provisions of school reports to the other, the exchange of information about the children’s medical care and health, injunctions restraining each from discussing the other’s faith or the circumstances in which the father left the Exclusive Brethren or his lifestyle with or in the presence of the children, and a mandatory injunction requiring both parties to do everything necessary to encourage the children to speak positively to and about the other party and discourage them from speaking negatively in that respect. The father also sought an order:
That [J] and [C] be assessed and if necessary enter into a programme of therapeutic psychological treatment to assist in the treatment of the stress and frustration that the children may be carrying.
In response to an enquiry by the court at the conclusion of the trial, the father made it clear he did not seek to withdraw the two contravention applications filed in 2007.
The mother maintained her application for discharge of the existing order for equal shared parental responsibility and an order for sole parental responsibility. She also sought the discharge of all orders which required J and C to spend time or communicate with the father.
The Independent Children’s Lawyer tendered a minute of orders sought. He submitted that the mother should have sole parental responsibility for J and C and they should live with her. There should be no orders requiring them to spend time or communicate with the father. As provided in the orders of Benjamin J of 21 December 2006, the mother should be restrained from discussing, or allowing anyone else to discuss, the father’s faith, his leaving the Exclusive Brethren or his lifestyle in the presence or hearing of the children. He proposed that the mother inform the father as soon as practicable of any serious illness or accident which befell J or C and authorise their school principal to provide information about their educational progress.
At the commencement of the hearing the mother had filed a case outline which included a summary of argument. The father prepared a written summary of argument which was tendered when he made his final submission and an order made that day provided for it to be indexed on the court file.
New facts and circumstances
Each of the parties sought to discharge orders made by Benjamin J on 21 December 2006 and to have the court make radically different orders. It was not submitted that the court should not reconsider the outcome; each party relied on facts and circumstances which occurred after Benjamin J’s orders were made.
In Malak & Mairie [2009] FamCA 268 paragraphs 56-67, I summarised a number of recent cases dealing with principles referable to re-litigation and applications to vary orders on the basis of alleged new facts and circumstances. In considering whether to allow re-litigation of parenting orders, the best interests of the child remain the paramount consideration. Given the events which have unfolded since 21 December 2006, I am satisfied that the best interests of the children warrant a reconsideration of the questions of parental responsibility, residence and the time they spend with each parent, and consequential orders.
Benjamin J’s findings
Although the mother filed a notice of appeal against the orders of Benjamin J. on 21 December 2006, it was subsequently withdrawn. Thus, his Honour’s findings of fact are binding. As each of the parties sought to vary the orders of 21 December 2006, it is useful to summarise some of those findings.
· The parties married in May 1977 and separated in February 2003.
· The parties were both members of the Exclusive Brethren faith and of the Exclusive Brethren community in Tasmania. The mother is a fourth generation member of the faith and the father had been introduced to it at an early age. Their eight children were raised according to the tenets of the faith.
· In early 2003 the father left the community and ceased to conduct himself in accordance with those tenets.
· The father spent time with the three younger children in the year following separation but at the time of trial he had not seen L at all in 2005 and 2006, save two occasions in October 2006.
· C and J had spent time with their father but it had diminished, particularly over the twelve months prior to trial.
· When the parties separated in 2003 the father wished to leave the Exclusive Brethren and to separate from the mother.
· The father knew that marriage separation was inconsistent with remaining a member of the Exclusive Brethren and that the ultimate result was withdrawal from the person instigating the separation.
· The father was aware that members of the Exclusive Brethren do not socialise with people outside the Exclusive Brethren nor eat with those who are not members of the Exclusive Brethren.
· Until the breakdown of the marriage the father had imbued all of his children with the practices of the community.
· If the children, or any of them, lived with the father their friendships within the Exclusive Brethren would come to an end.
· Ms. M (the father’s now wife) attended the Open Brethren church. She would not encourage the children’s relationship with the Exclusive Brethren and would support the father’s desire to remove the children from the influence of the Exclusive Brethren and would not accept their views if they wished to remain part of the faith.
· The mother’s evidence was that the father was a loving and caring father, shared close bonds with the children and was respected and loved by them, at least up until separation.
· If the children moved to live with the father it was unlikely they would be “withdrawn from” whilst they were children, but they would not be permitted to partake in fellowship.
· The mother’s offer, made around the time of separation, to leave the faith and be with the father was a genuine endeavour by the mother to keep the family unit together, not an offer designed to induce the father back into the Exclusive Brethren.
· Members of the Exclusive Brethren believe that they must separate from those who they believe are impure in faith or morals. From a practical point of view, this means that practising Exclusive Brethren are not able and do not associate with non-Brethren other than as may be required for work or for the provision of appropriate professional services.
· Brethren believe that eating together is an act of fellowship and therefore they should eat only with those who are Brethren.
· The father’s evidence was that he would put in place arrangements to enable the children to eat separately when with him.
· The only legitimate basis for a member of the Brethren to have any ongoing contact with the father would be to encourage him to repent; this applies to all members, including those under 18.
· The children were discouraged from pursuing a relationship with their father by other family members and other members of the Exclusive Brethren.
· The father’s public campaign against the Exclusive Brethren in the media resulted in pressures being placed on the children to cease all contact with their father.
· The adult children of the parties who gave evidence, (G, T, M and W) appeared to be decent people who were deeply troubled by the circumstances that had overtaken their family and struggled with what they saw as a terrible situation.
· The evidence of the family reporter, Mr. CH, was accepted and, in particular, his evidence that the behaviour of family members and other members of the Exclusive Brethren in discouraging the children from spending time with their father and counselling them to “put up with” such time, amounted to psychologically cruel, unacceptable and abusive behaviour towards these children.
· The younger two children settled and enjoyed the time they spent with their father once outside the influence of the Exclusive Brethren community, despite being imbued with the beliefs of the faith.
· The practices of the Exclusive Brethren, as they affect the three children, are “exclusive”.
· The mother and her family will not encourage the children to spend any time with or communicate with the father.
· The mother has been the principal carer of the three children throughout their lives.
Father’s time with the children since orders of 21 December 2006
Prior to Benjamin J’s orders, arrangements had been made for the children to spend time in Victoria in late December/early January and the father agreed to defer the commencement of his time with them. The first period of time was to be on 14 January 2007 but the children did not leave their home to accompany him. The circumstances have been summarised in paragraph 49 of this judgment. The following day the father filed the first application in which he sought that the mother be dealt with for contravening the orders. That application was determined by Benjamin J on 20 February 2007.
On 23 February 2007 the mother was admitted to Hospital. As she was unable to deliver the children to P, the father collected the children from her home in the presence of the parties’ daughter ME and Ms Mills, a lawyer. Neither ME nor Ms Mills was called and the mother conceded that she had to rely on ME’s report as to what happened on 23 February 2007. The mother was told that the three children went with the father but J and C refused to go back to the father after L was returned, she only being required to spend two hours with her father. After an hour and “significant coercion” from ME and Ms Mills, they did so.
After their return on Sunday the children visited their mother in hospital. The mother’s evidence was that C, in particular, seemed very stressed, neither were their “normal selves” and, in the following week, each said they had not enjoyed their time with their father, that Ms M had been present all or most of the time and that they did not want to go back.
The next contact was to commence on 10 March 2007. The mother was not well enough to drive and, after negotiations with the father’s solicitors, it was agreed that their son T would drive the children, with Ms Mills as an observer in the car. According to the mother, C was doubled over with stomach cramps prior to leaving. On the children’s return, all expressed unhappiness, complaining about the lack of cleanliness at the father’s home and their unhappiness at missing Brethren meetings.
The children were to spend the weekend of 24 and 25 March 2007 with the father but as Exclusive Brethren members from interstate were to visit, and there was to be a special meeting on 25 March, it was agreed that, for that weekend only, the children would be delivered to the father at 4:00pm on Friday 23 March. L would be collected at 6:00pm that day, and J and C would be returned to W’s home in D at 9:00pm on the Saturday. That contact occurred; the mother’s evidence was that she and the children were grateful to the father for his cooperation.
The next occasion for contact was the compensatory time ordered on 20 February 2007; J and C were to be with the father from 5:00 pm on 8 April until 9:00 am on 15 April. On 10 April 2007 the mother wrote to the father, advising that J and C had an invitation to attend special meetings in a Melbourne suburb that weekend and requested they be returned at 7:30 pm on Thursday, with make up time to be agreed, “which could include Anzac Day etc”. The mother’s evidence was of receiving no response to that letter. The children spent time with their father and did not attend the meetings in Melbourne.
On 23 April 2007 the father’s solicitor wrote to the mother’s solicitor, advising that his client sought counselling of the children as he believed change overs were an upsetting experience for them; it was put that while the children demonstrated no unsettled behaviour or reluctance when with him, they became “totally different people” on the return journey. Further, the father sought to return to an arrangement which required the mother to be involved in the change overs, querying her health status (as the father had learned she had been well enough to travel to Victoria) and complaining that T was sullen when he delivered the children. As the mother observed, that letter is at odds with the handwritten letter the father wrote T around this time in which he thanked his son for “what you do in bringing the children to see me”, expressed his concern for T and reminded him that his house and heart were always open to him.
The next scheduled time was to commence on Saturday 28 April 2007. Again, a special Exclusive Brethren meeting was to be held that weekend which J, in particular, was very keen to attend. Through the mother’s solicitors the father was requested to vary the orders and have the children from 5:30 pm on Friday to 7:00 pm on Saturday on the basis he could return them to D, rather than L. As the father would not agree to that variation, the children went to spend time with him on Saturday 28 April, in accordance with the orders.
The father’s evidence was that his time with the children in March and April 2007 was successful. The children felt at ease, they communicated easily with him and Ms M, and with Ms M’s adult daughter. They played sports, J played with the dog and they generally had a good time. He conceded that J’s behaviour “deteriorated” on 28 April, behaviour the father attributed to J being “set up to react”, presumably by his mother and other family members.
The father tendered photos of the children taken during these periods, including a photo C took of Ms M’s daughter and photos of the children’s rooms in the home in which he lives. There are photos of C apparently enjoying horse riding and playing on a swing in a park with her father, and photos of J playing tennis in the same park, and near the swing. In the last of those photos J looks relatively relaxed; in most of the others, including the many photographs of him with the father’s dog, he is not animated or responsive to the photographer.
Cross-examined, the father agreed that J became upset when he refused to accede to J’s request to attend a special meeting with an overseas speaker that weekend. The father told J that the court said this time was to be with him; in his opinion, J had been pressured to seek to attend the meeting. Within an hour and a half of arriving J refused to play cricket or play with the dog. He climbed up to a partly built tree house, a building project to which the father referred. The father’s evidence was that he pretended not to see J up the tree and drove off, as if to look for him elsewhere. At some point the father returned; he said J was in a foetal position on the platform of the cubby house and would not talk. Eventually, the father rang an ambulance and J descended. Ambulance workers assessed him, after which he went inside and went to bed. The father said he tried to give him food and to chat with him but J was unresponsive. The father described this “a protest”. The next morning the father took the children home; the father said J tried to remain mute and unresponsive but a couple of times he made a comment when the father was playing with C.
The mother’s evidence was that J was angry and frustrated that his father did not listen or pay any respect to his wishes and views generally and, in particular, those in relation to this weekend. J told her that he went up to the tree house to hide from his father and refused to come down because he did not want to have to spend time with him. After coming down he stayed in his bedroom until it was time to go home the next day, despite his father trying to drag the blankets off him to force him out of the bed.
The father’s evidence was that when the children came to visit him in P they were initially quiet and resistant but “warmed up” over a period, and were then relaxed and happy. On the way home they again become reserved and resistant. On his own account, the last period of time with J in April 2007 was not consistent with this pattern.
It is probable that C did settle in reasonably easily in 2007; she is a friendly child and was probably happy to take part in the activities proposed and spend time with her father and his new wife. I have some doubts about the reliability of the father’s recollection of J’s time with him in early 2007 but any warmth or enthusiasm had evaporated by late April that year. As Ms SN observed, the mother’s diagnosis in May 2007 was a pivotal event and the court could not make assumptions about the children’s likely response to their father based on a few visits in early 2007, prior to her relapse.
The mother remained unwell from the time she was admitted to hospital in February. On 10 May 2007 she was advised of a recurrence of the breast cancer with which she had been diagnosed in 1999 and of secondaries in the liver. Ten days later she was advised that the cancer had spread to her bones, that it was inoperable and that she had a probable life expectancy of three to six months. On 1 June 2007 she commenced a course of chemotherapy, on two out of every three weeks, treatment which made her unwell for three or four days on each occasions.
The children were to spend time with the father on 12 May 2007. Following advice from her solicitor of her diagnosis, the father did not pursue that period of time. The next period was the weekend of 26 May 2007, which was the weekend following advice that the cancer had spread to her bones and the disease was terminal. The children did not spend time with their father that weekend and on 31 May the father filed a contravention application.
The mother’s evidence was that the children were very distressed after her diagnosis and did not want to leave her. She had been placed on morphine based pain killers and Dexamethasone, preparatory to chemotherapy, and experienced an allergic reaction to the former and, inadvertently, an overdose of the latter. Her memories of the week ending with the weekend of 26 May are vague. She recalled asking ME to help get the children ready to go to their father, C sobbing at her bedside and saying she did not want to leave, and ME later telling her she had packed the children’s bags and tried to get them to go, but was unsuccessful. ME told her she had rung her father and told him she had done everything she could.
The father was next to spend time with the children on 2 June. The mother commenced chemotherapy on 1 June and was too unwell to attend the Full Court hearing in Hobart on 4 June 2007. On 1 June L gave her a note in these terms:
Mum:
[J], [C] and I are NOT going tomorrow – Saturday 2nd June 2007.
I honestly don’t know, why anyone could even think of deciding such a thing, because as if ANYONE is going to get me to go and stay at itchy, bitchy, witchy, fitchy house over- night. I could have left school and home by my own age of 16.
You are sick, very sick and we need to keep near you, and try and help you get or feel better.
As this is the case, we are going to spend EVERY spare day we have possible with you, so that we might become strong but restful like you.
Mum we all love you and we would NEVER leave you or the brethren.
Try not to worry about us and the many weeks and weekends ahead because, we are NEVER going to go as we are staying near you because you are sick and we feel the need to be near you lots.
Love [L].
I accept the mother’s evidence that she knew nothing of the note until it was handed to her.
The mother’s evidence was that by 2 June 2007 she was feeling very unwell, at least in part a consequence of the chemotherapy she had received the previous day. She was taken to a general practitioner, and then to the Emergency Department of the Launceston Hospital, where staff tried to find a bed for her at St. Vincent’s Hospital or St. Luke’s Hospital. When that could not be achieved, the wife was given a Valium prescription and taken home. She had no direct memory of what happened with the children that day or what she may or may not have said to encourage or facilitate the children going to their father. Some days later, the parties’ son, T, told her that he had phoned the father to tell him that the children would not go. The children had visited her when she was in hospital that day.
The father filed a contravention application on 15 June 2007.
The next contact weekend was that commencing 30 June 2007. The mother’s evidence was that all three children emphatically said they would not attend. She was experiencing increasing problems with transport. Benjamin J’s order of 20 February 2007 provided for the children to be delivered to the father at his home in P by the mother or by one of the adult female siblings of the children, or such other person as was agreed in writing. On occasions the parties’ son, T, accompanied by ME (who was only 18 and did not have a driver’s licence) delivered the children outside the father’s home. T was unavailable for the weekend of 30 June 2007 and, absent agreement, either the mother (who was too ill to do so) or one of the parties’ adult daughters had to be involved.
Both M and W flatly refused to do the transportation. They were angry with their father and also concerned about the potential for them to become respondents to a contravention application, if involved. By that time their brother G and M’s husband had been sentenced to terms of imprisonment for aiding and abetting a contravention, and the result of the Full Court appeal was not known. The father had also filed an interim application seeking that J and C leave their mother’s home and move immediately to live with him in P. The father had earlier rejected a proposal which would have allowed other members of the Exclusive Brethren to deliver the children. In these circumstances the mother proposed (through her solicitors) that for that weekend the father collect the children from the N Newsagency, which is a short walk from her home. The father accepted that proposal.
On the morning of 30 June 2007 the mother packed the bags for the three children and told them to go to the corner store with ME, where they would meet their father and go with him for the weekend. Despite difficulty in getting the children out of bed and their reluctance, they left the home with ME shortly prior to 10:00 am. A short time later, they all returned. The children told her that they walked to the N Newsagency and told the father they refused to go with him.
On 10 October 2007 the mother proposed, through her solicitors, that the Launceston Children’s Contact Centre be used for handovers. The children attended two orientation sessions and the manager then recommended a supervised visit of two hours, at the Contact Centre. This occurred on 5 January 2008. The parties then agreed that the Contact Centre would be used for a change over on 2 February 2008. The father had to drive from P to Launceston and when he was nearly there, staff from the Contact Centre rang to say that the visit had been cancelled. On learning of this, he turned towards home. Soon after that call, the children were delivered to the Contact Centre by their maternal grandparents. It was later discovered (this was common ground) that J had rung the Contact Centre early that morning and cancelled the visit, without advice to anyone at his home. The father saw this as “a bit of mischief”. The Contact Centre did not ring the father when the children were delivered and the father continued his journey home, unaware of their presence there.
The mother was prepared to try the Contact Centre again however neither the father nor children wanted to do so. Cross-examined, the father agreed he was not prepared to use a Contact Centre which, he believed, only compounded the problem, provided a challenging environment for the children and was a difficult and unsuitable setting.
There may have been another attempt to have the children collected from the N Newsagency on 14 July 2007; certainly, the parties’ solicitors were involved as the parties endeavoured to negotiate arrangements.
On 6 June 2008 the father wrote to G in these terms:
Dear [G]
How are you, I trust you are all well.
As you would be aware Justice Brown is expecting to review matters in the Family Court in relation to [L], [J] and [C] spending time with me as per the Courts decision and also contravention of these orders by [the mother].
I have received the medial report in relation to [the mother’s] medical condition and am sorry she has been so ill, yet am glad there has been something positive from the treatment
I invite [the mother] and yourself to be available to have a discussion in view of the future of the children spending time with me and to alleviate further Court pressure on [the mother]
This would need to be next week as I understand the review is towards the end of this month
I remain as always
Your Father
In an emailed response dated 24 June 2008, G wrote:
[Peter]
I received your letter.
I appreciate anything that could alleviate further pressure on Mum.
However, due to all thats entered into the past, neither mother or myself could meet with you.
If the children would agree would you be prepared to meet with then for ten to fifteen minutes.
As the time is urgent could you reply a.s.a.p to the above email address.
[G]
The following day the father responded with another letter to G, in these terms:
Dear [G],
Thankyou for your response, however I thought I had made my request clear.
I gave no options, other than to meet you and your Mother, to discuss future direction. You have made your intentions clear, therefore I am left with no option than to continue with proceedings.
I am sorry that you are not allowed to meet with me but if you should ever change your mind, my door is always open to you.
Our regards and love to […],
I remain as always, with Love
Your Father
At that time the father had not seen the children since the period at the Contact Centre in early January 2008. Asked why he closed the door on the proposal he said “I’ve had the opportunity before and it hasn’t happened” and “I knew what had happened at other times when I came to collect them”. He agreed he had been very close to G and that G had been more sympathetic to him than other members of the family but said he was “being thwarted by the children” and “[G] made a turn at the last trial”, the last a reference to G giving evidence for the mother before Benjamin J. Later the father made it clear he saw this offer as a ruse “designed to make them look good”; it was, he said “just another psychological trick to have me come and not see the children”.
While he did not seek to avail himself of this offer, the father maintained his door was always open to all of his children, regretted their failures to respond to his overtures and made public his continuing love for them. None of his adult children see him or seek any sort of continuing relationship with him, but the father’s evidence was of attempts to communicate with them by correspondence and, in at least three cases, by placing notices in the newspaper.
In October 2008 the father placed a notice in the newspaper in these terms:
[T] -
Happy birthday son. Though religion separates us, my God is greater then one secular group. I’ll always love you and my door is open for you.
- Love, Dad.
It became clear that the father thought that “secular” meant “one sect”; he said he could have used the word “cult” but did not want to offend T.
Later in October 2008 the husband placed further notices. The notices read:
[M],
[M] - Happy birthday today, Darling. My love to you and your children on this special day. (How many more children do you have?) I miss you.
Love, Dad.
[ME] – Happy birthday tomorrow, Darling. It was good to see you. Sorry you couldn’t stop and talk with me. Hope you had a good time away.
- Lots of love, Dad.
As the spelling of ME’s surname was incorrect, the father placed the second notice in the paper again later in October. His evidence was of seeing ME at the airport; the comment in the notice about being sorry she couldn’t stop to talk is referrable to that.
The father did concede that these notices might be interpreted as being more about his position than about his love for his children but gave little sense he understood how counterproductive they could be. Ms SN’s evidence was that all of his children would have been mortified by the notices; in their view, if he truly cared about them, he would not bandy their names about in public. Asked about the notice addressed to T, Ms SN said it was “a very bad idea” if he wanted to have a relationship with the children; it was “a guarantee of no relationship”. She was less critical of the notices addressed to M and ME; her evidence was that while the women would have felt humiliated, the placement of the notices was well intentioned, if insightless.
Children’s present routine
On school days J gets up at about 7:00 am and C a little later, as she is harder to wake and doesn’t settle easily. J goes to the shop for newspapers and the children eat breakfast. Grace is said before eating and there is a scriptural reading with the children before they go to school. Generally, readings are from the Gospels in the morning, Proverbs at lunchtime and Psalms at night. W or another family member takes them to school at about 8:30am and they are picked up just after 3:00 pm. The children attend an Exclusive Brethren school called O School. The curriculum includes one hour of scripture a week. Both children have homework; J’s load is heavier and will increase.
After school J is keen to “dump his bag and kick a ball” with one of his friends; he plays cricket and likes snow boarding and electric guitar. C is more content to play with her dolls and in the home.
J attends a meeting every night; this is usually after dinner but sometimes before. C attends the meeting if she is not too tired. The meeting itself generally takes about one hour and there is some social interaction following it.
The family routinely eat dinner at about 6:00 pm but if there is a meeting at that time, they eat later. Grace is said and a verse of scripture is read. The mother tries to get C to bed around nine or a bit earlier and J goes to bed around nine-thirty or ten.
On Saturday the children get up and have breakfast with the usual Grace and reading. There is a meeting on Saturday morning, usually at 9:00 am; that is often in L but can be in other locations. The mother’s evidence was “everyone who can, goes.” That meeting is of about one hour’s duration. There is a scriptural reading before lunch and normal activities in the afternoon and evening.
Sunday is the Lord’s Day and the Lord’s Supper is paramount. The family rise and go immediately to that service, which starts at 6:00 am and lasts between half an hour an one hour. Breakfast is eaten after that. There is a meeting of about one or one and a half hours at 10:00 am before the midday meal, which would often be taken with other members of the community. Meetings are frequently held in other towns and in those circumstances members stay and eat with Brethren families there; if, for example, the Sunday morning meeting was in Hobart, the family might not get home until about 5:00 pm.
At about 2:30 pm there is a Gospel preaching and another meeting, of an hour or a bit less. Sometimes the family might attend that preaching in L and then go to other locations for a further meeting, staying for dinner with Exclusive Brethren friends there.
Additional or special meetings can be scheduled on any day; there was evidence of meetings arranged because a member from interstate or overseas was visiting Tasmania or for other special reasons. Children and adults are together at all meetings and there is a good deal of social interaction before and after meetings. Members worship at the Lord’s Supper; other meetings include some preaching and some “conversations”.
Cross-examining the mother, the father put to her that meetings were scheduled every week day evening, Saturday morning and “all day” on the Lord’s Day (Sunday). She agreed with his summary, which was consistent with her own evidence.
At the time of the trial before Benjamin J, the father’s wife was a member of the Open Brethren faith. That is no longer the case. The father described himself as a believer and as a Christian, saying he does not have a “religion”. He said that he and his wife have visited a number of churches including the Church of Christ, the Uniting Church, The C Church in P, the Gospel Church and a Christian Church.
The father was keen to speak of the good relationship the children had with his wife and her adult daughter, R. One of the photos tendered by him was a photo C took of R. Benjamin J’s decision of December 2006 makes it clear that the father’s now wife then had had only minimal contact with the children. Were she present on every occasion of contact since, she would still not have had much time in which to get to know them. The children complained about her presence, which is not unusual with a new step-parent, absent the complications of this case. Ms M was not called but I do not doubt that she would do everything possible to support her husband in his pursuit of a relationship with his children, would do her best to relate well to the children herself and would care for them if they spent time with her. It is, however, not a relationship to which the court could give priority.
The mother’s parents remain part of the Exclusive Brethren community and there is no reason to doubt the quality of their relationship with J and C.
(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
(f)the capacity of :
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(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.
(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.
The court could not find that the mother or members of her family would positively facilitate or encourage a close and continuing relationship between J and C and their father or, indeed, any relationship. On the occasions on which the children did not go with their father in May and June 2007 the mother was very unwell and on one of them (2 June) she was at a hospital. She had a recollection of packing the children’s bags on another occasion and of discovering the bags outside the house after the children had left with ME for the changeover point. Her evidence was that she had always sought to comply with the orders. She was candid in saying she would not be able to force the children to go against their convictions.
W’s evidence was that she could not encourage J and C to spend time with their father but would seek to comply with any orders. Mr A’s evidence was that he would do all he could to comply with any order and would not feel it his duty to discourage their attendance. He would not suggest they should not go. He said he could not positively encourage the children and spoke of his fear of exposing himself to future contravention proceedings.
I am satisfied that the children’s physical, emotional and educational needs are being met in their mother’s home. I place no weight on the father’s complaints about their schooling at O School, the school he supported when living within the community. He agreed that, prior to separation, he and the mother had agreed the children should be educated at O School. Benjamin J summarised aspects of the school and J’s educational progress in his judgment of 21 December 2006. At that time C was at a local primary school but O School now provides education at her level, too. The children were described by Ms SN as polite and courteous and apparently well socialised.
I find no substance in the father’s allegation that there may be “under age drinking” in the mother’s home. Mr A denied giving beer to J, a denial I accept.
Cross-examined the father said that if the children lived with him they would have a greater chance of reaching their potential. This would arise, at least in part, through him releasing the children, to use his words, from the constraints of their religion and exposing them to ideas and influences now denied them. He may also have been referring to the potential for them to attend university if they were not continuing members of the Exclusive Brethren faith.
Tertiary educational opportunities can be limited by personal, financial, intellectual, family and societal factors, to list a few. J is fifteen and C ten. I do not find that potential exclusion from tertiary study when young adults, by reason of their religious convictions (assuming they remain within the Brethren community), is indicative of the mother not having the capacity to provide for their intellectual needs.
The father waxed lyrical about the superior education which would be available to the children at the local schools in P. As the Independent Children’s Lawyer observed in final submissions, a child who remained committed to the Exclusive Brethren faith would have to eat and play alone at school, absent Exclusive Brethren classmates, and there was no evidence of Exclusive Brethren families in P. The father agreed that O School was the parties’ school of choice, prior to separation.
The father spoke often of wanting to give J and C an opportunity to experience life beyond the constraints of the Exclusive Brethren faith. He said he wanted to “enlighten” the children; they should be at liberty to look beyond the parameters that are “holding them in” and released from the bonds of the religion, however traumatic that might be for them. While theoretically keen to offer the children the opportunity to experience a different life and the freedom to choose a lifestyle or philosophy, there was one choice the father would not countenance; J and C could not elect to maintain their current religious beliefs.
I do not doubt that the father is capable of meeting children’s physical and educational needs. His evidence was that he and his wife are approved foster care providers and the court can find their home to be comfortable and clean. Absent the children’s intransigence and opposition, they could be well looked after, but J’s refusal to eat or speak for a lengthy period in April 2007 is indicative of some of the practical obstacles the father would face. Although the father candidly agreed that it would not be easy to overcome the children’s resistance (particularly J’s) were they to live with him, he could not advance any strategies to deal with their potential intransigence. When J rebelled on 28 April 2007 the father had to resort to calling the ambulance and J refused to speak or eat for the balance of the weekend. When asked what he would do were J to demand to attend an Exclusive Brethren meeting, the father spoke of taking him to another church instead or going for a drive and a chat. The first suggestion is risible, given the father’s own understanding of the Exclusive Brethren faith, and he had no success with the second on the last occasion.
The trial was conducted on the basis that the father pressed his application for an immediate change of residence of both children. Only in final submissions did he resile from this in relation to J but he maintained the application that C move immediately to his home and did not resile from his evidence that she should not be allowed to attend any Exclusive Brethren meetings (save the Lord’s Supper) when she spent time with her mother.
I cannot say if the father genuinely considered the potential emotional consequences of removing C alone (that is, without J) from the home in which she has lived all her life, in which live not only her mortally ill mother but five of her siblings, her brother-in-law and her niece. His initial proposal at least involved the presence of her older brother who, the court can find, is protective of her and reasonably close, despite the five year age difference. Whether the father considered the potential impact on her or not, his proposal suggests no understanding of C’s emotional needs and the court could not be confident he would recognise or empathise with those needs were she to be forced, against her will, to live with him. As Ms SN observed, he has difficulty acknowledging the impact of his actions on his family; he appears more engaged with his own sense of loss and injustice and his struggle with the church.
The court is required to have regard to events that have happened and circumstances that have existed since the parents separated. These have been summarised earlier and must impact profoundly on the final decision.
There is no doubt that the mother has not involved the father in decision making about the children, despite the order for equal shared parental responsibility. She made it clear that she could see no role for him in decisions about the children’s education and religion. The question of parental responsibility will be considered later but the court must face the reality that these parents cannot communicate and hold radically diverse views as to where their children’s best interests lie.
(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;
I must find that a move to live with the father would impact adversely on C and be detrimental to her emotional development. I accept the mother’s evidence that C is very frightened that she might be sent to live with her father and has not been sleeping properly. The mother’s evidence that such a move would be enormously traumatic for C is the evidence of a mother, not of a social scientist. However, it was consistent with Ms SN’s expert opinion.
Ms SN’s evidence was that both children are fearful, angry and upset at the father’s proposal that they live with him. They do not wish to leave their extended family and their familiar surroundings, even in the event of their mother’s death. They are deeply distressed at the thought of leaving her while she is so ill. At fifteen, J is becoming more confident about showing his anger and rejection; while C is still young and polite and superficially somewhat less rejecting, she is more likely to be internalising her distress and is generally more anxious.
In her report Ms SN noted that Mr CH, in an addendum to his report dated March 2006, expressed the view that the likely outcome of continual court applications would be a strengthening of the children’s hostility towards the father and further unification in their support of their mother. Ms SN referred to the accuracy of this prediction, and its reinforcement by the tragic circumstances of the mother’s relapse.
Ms SN noted that for C, the choice has become more stark. In simple terms time spent with her father is time away from her mother and thus, time spent worrying about her mother. Her likely reaction to time with her father cannot be predicted based on photos taken before her mother’s relapse.
Ms SN’s evidence was that it is highly unlikely J will accept any time with his father. He would “vote with his feet”. Any order for contact would only magnify the current rift between them.
I accept as sound Ms SN’s evidence that the father’s pursuit of a change of residence is indicative of a significant lack of understanding of the children’s needs, both now and in a future time of bereavement and mourning. In her opinion, a removal from the care of their mother or the extended family, community and friends is likely to cause the children to suffer long term emotional trauma. Her evidence was that the children’s emotional need for support from their extended family during these traumatic years must take priority over any need they may have for a long term relationship with their father. Further, the children’s emotional needs must take priority over any questions about the church’s compliance or otherwise with court orders for contact.
Cross-examined by the father, Ms SN said she did not doubt that he cared about his family but the issue was how the family were impacted by his decisions and actions. The family do not see them as caring. She went so far as to say that having nothing to do with them now might show ultimate caring. In Ms SN’s opinion, the door to a relationship with the father had been ajar in the past but his actions in maintaining litigation have closed it. She said the father sees himself as a victim of the church. The church is “the baddy”; his grievance is with it and, to that extent, his family takes second place. He is intent on proving to the children and the world that the Exclusive Brethren are at fault.
The impact of the father’s application on J can be assessed by Ms SN’s opinion that J is the child most unlikely to reconcile with the father in the future. The father’s pursuit of time with J is pushing him towards the church.
The father was not able to acknowledge or accept the opinions expressed by Ms SN. It was his case that a move to live with him would be to the children’s benefit, not detriment, and he had “no reservations” about that. Their right to a meaningful relationship with him must, in his submission, take priority over all else. In his view children generally, and C specifically, are resilient and she would adapt to her changed circumstance, and flourish. I cannot find that likely.
Cross-examined Ms SN’s evidence was that it would be “unthinkable” to change the residence of either child; any such change would have long term adverse effects and cause psychological trauma. The children are presently experiencing anticipatory loss and grief. They are preoccupied, stressed and hyper-vigilant. They know there will be a death and need a lot of support; the emotional effects of a parent’s death are likely to be life long. J and C need to live with people who care and who understand and share their loss; their siblings are the ones who are best fitted in this role.
Asked about the potential for C to spend time alone at her father’s home (that is, to visit without J), Ms SN said she would be very concerned about any over night stays. Whatever the arrangement, she doubted that C would continue to go for very long.
Ms SN’s evidence was that the father is an intelligent and charismatic man but is a product of his background. His thinking is black and white and he has trouble in seeing the perspective of others. He is used to being the head of the family and not being questioned; it is difficult for him to accept that that is no longer the case.
Ms SN said that after the father saw the children with her, they spoke at some length and he wondered if he should “fall back”. Given her role, Ms SN could not be involved in that decision. The father maintained his application for residence of C, after hearing all of the evidence, and the court must assume he maintains his view C would adapt relatively easily to the very different life he seeks she live with him and his wife.
The move the father proposed would remove C from school friends and friends with whom she now spends time in the community in which she lives. It would involve a change of school and attendance at a school where, absent other Exclusive Brethren children, C would have to eat and play by herself to be true to her religious convictions. These are significant matters. In the context of this case they are emphasised little only because the impact of removing her from her mother and extended family would be so devastating that other losses pale into relative insignificance.
(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;
The practical difficulties in this case were enacted in 2007 and have not diminished. Although changeover arrangements were specified by Benjamin J, the orders were made prior to the mother’s relapse and despite some short term agreements, transport problems dogged the few occasions of contact. However, those problems are not at the heart of the issue and transport arrangements could be devised if the court found it appropriate for one or more children to move between their parents’ homes.
The father attributes most of the practical difficulties to the malign influence of the church. While describing his position as a struggle, not a fight, between the church and him, the father said it was not unfair to say it is a dispute between the church and the court. He is entitled to his view but I cannot find the view to be well founded. Ms SN considered his position in her report, as follows:
[The father] regards the proceedings as being between the Church and the Court. He alerts the Court to the influence of the Exclusive Brethren Church in teaching their members to withdraw children from contact with parents who are not church members. The Church says in its publication that this is not the case. This dispute is not about determining this. This dispute is about two young children who have not had a meaningful relationship with their father for 5 years; who are well established in their home, community and large close-knit family; who have clearly expressed views and behaviour indicating that they do no wish to pursue a relationship with their father; and who, above all, are dealing with the terminal illness of their mother. While the loss of his family is undoubtedly a tragedy for [the father], [J] and [C] are focused on a tragedy that is far greater and more direct in impact on them.
Ms SN’s evidence was that both children need relief from the stress of the existing orders which require them to spend time with their father.
(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;
I have earlier referred to the community in which the children live, their adherence to the faith and their lifestyle within the community.
In his judgment of 21 December 2006, Benjamin J found that the father’s approach to the life the children should lead with him had changed in the course of the litigation. The father had told the family consultant that initially he would not knowingly do anything with the children that might compromise the teachings of the Brethren church. By the end of the trial he was candid about his “desire to show them another side of life” and “release them from the clutches and powers of the Brethren.” Benjamin J found that the father’s initial concern about the impact of the proposed change on the children seemed to have been overtaken by his personal enmity towards the Brethren.
Before me, the father spoke again of showing the children life outside the church and “releasing them from the church”; with him, their religious beliefs would not be accommodated insofar as they ran counter to this course. To allow a child to eat alone or not watch television, or to read a passage from the bible on Sunday, is not to allow that child to live a life consistent with his or her Brethren faith; much more is required. At the most basic level the father’s refusal to countenance C’s attendance at meetings, even when spending time with her mother and siblings, illustrates his intentions. With him C could not choose to maintain her commitment to her faith; despite the rhetoric of “choice”, it is her father’s choices which would be imposed on her. Having spent more than forty years in the Exclusive Brethren faith the father must know of the centrality of attendance at meetings and that obligations of members are not divisible, or optional; indeed, that is one of his complaints.
The court must find that were the children to live with the father they would be exposed, knowingly and deliberately, to influences and practices contrary to their beliefs and the beliefs of their mother, siblings, extended family and friends. Such exposure could be traumatic for them; it would certainly cause them distress.
(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;
Benjamin J considered a recommendation for the making of interim orders, and decided against it. Before him, Mr CH had suggested that the authority of the court to make orders requiring them to spend time with their father may lift the emotional burden from the children and allow the children to spend guilt-free time with him. That has not occurred and the mother’s subsequent relapse has entrenched the children’s views.
The court can track the time the children have spent with their father since he left the family home in early 2003 through the findings of Benjamin J in December 2006, the contravention judgment in February 2007, the Full Court judgments later that year and the evidence before it in these proceedings. When their parents separated, J was nine and C was four. The mother had been diagnosed with breast cancer soon after C’s birth, and was ill and receiving treatment for some years. In the six years since separation the children have spent little time with their father and all attempts (judicial and otherwise) to achieve a rapprochement have failed. Despite this reality, J and C have developed well. They may be as well equipped as any other children of their ages to face the prospect of their mother’s early death, but it is a devastating prospect. The continuation of the litigation after her diagnosis in May 2007 has driven both children further from their father. In their best interests, the litigation must end.
(m)any other fact or circumstances that the court thinks is relevant;
The father’s ambivalent motives for his application were reflected in his evidence about the potential for the mother to serve a term of imprisonment. Ms SN was not aware the mother’s sentence had been quashed when she spoke with the father in August 2008. She reported that the father, when asked about the current order for a jail term, responded ambivalently. On the one hand, he said he did not want the mother to go to jail; on the other, he did not believe the orders should be suspended and stated his belief the sentence would be served in the prison hospital.
Cross-examined, the husband asserted that any remarks he made about the potential to serve a sentence in the prison hospital were attributable to advice from a police member with whom he had a business association “not long after the last case”. He agreed he knew jail was an option in the February 2007 proceedings but insisted he and his wife did not want the mother to be imprisoned. However, he said a fine would be “like taking a bucket of water out of the Pacific Ocean” and did not know whether a community based order would be appropriate. Asked if he had factored in the potential for a jail term if she were convicted of either or both of the pending contravention applications, he said he would be devastated if she went to jail. Despite that evidence, he maintained his applications for her to be dealt with for alleged contraventions of the orders in May and June 2007.
I have considered the objects which underlie Part VII: findings made when considering the first of the primary considerations are particularly referable to them. Similarly, findings made when weighing the primary and additional considerations are relevant to the principles which underlie those objects. I must find that the children’s best interests take precedence over the rights described in s 60B(2)(a) and (b). The evidence satisfies me there is no possibility of the parties agreeing about the future parenting of their children or sharing parental duties and responsibilities, and the children’s best interests must take precedence over the principles set out in s 60B(2)(c) and (d).
It could be argued that the principle contained in s 60B(2)(e) is relevant to the decision. No argument was directed to it and I do not find it necessary to say anything further about it. Findings have been made about the family and broader community in which the children live and the centrality of that life to their best interests.
Parental responsibility
The Independent Children’s Lawyer submitted that the court should discharge the order for equal shared parental responsibility and, in lieu, give sole parental responsibility to the mother. In his submission, that is the only viable arrangement. I find that to be the case. The lack of any parental alliance; the inability to communicate; the gulf between the parents’ aspirations for their children; the security of the children’s lives with their mother and siblings; the father’s continuing criticism of the church and the children’s lives within it; and the fragility of the mother’s health; all mitigate against any other outcome. I am satisfied the presumption of equal shared parental responsibility is rebutted, being contrary to the children’s best interests.
In these circumstances it is not necessary to consider whether spending equal time with both parents would be in the children’s best interests and reasonably practicable, or whether spending substantial and significant time would be in their best interests and reasonably practicable.
Residence
I cannot find it would be in C’s best interests to move to live with her father. Such a move would be emotionally devastating for C and would impact adversely on her in the short and long term. In reaching that decision I place significant weight on Ms SN’s evidence but also on the other evidence to which I have adverted, including C’s views, her existing relationships, and her parents’ respective capacities to meet her needs.
Time
Nor am I satisfied that there would be any benefit to J or C in making orders which require them to spend time with their father at this time, or to communicate with him. I take into account the reality that this will mean they have no relationship with him, at least in the foreseeable future. That may come at an emotional cost but Ms SN’s evidence satisfies me that the cost of forcing contact on them would be much higher, and would be unsustainable. I cannot find any positive benefit to the children in making orders which require them to spend time with their father; nor any prospect of them having a meaningful relationship with him in the foreseeable future.
I have considered whether the court should make orders which would allow C to be brought into the father’s presence for an hour or two once or twice a year, as initially recommended by Ms SN. Nothing in the evidence satisfies me that there would be any benefit to her in such an arrangement.
The parties were asked about this recommendation, as was Ms SN. The evidence satisfies me that were such occasional meetings arranged, whether pursuant to order or by agreement, they would not open the gate to a meaningful relationship with the father. I could not find that such a meeting would even provide a seed which could, in time, put out tentative shoots towards such a relationship. Such a meeting would allow the father to physically assess his children and (although it is probable they have no interest in so doing) the children to physically assess him. It is highly improbable C would do anything other than passively submit to a perceived requirement to be present for as brief a period as possible. It is highly improbable J could be forced to attend. Cross-examined, Ms SN clarified this recommendation, making it clear it related only to C.
The father’s evidence was of obtaining photos of the children from O School in the past and of speaking to their teachers about their progress. The mother knew he had some contact with the school, but not its extent. She did nothing to interfere with those arrangements and he could continue them into the future. The acquisition of that information will do little to assuage his grief but he can at least have current photos of the children and follow their educational progress.
Communication
In the letter of 22 October 2008 the mother made it clear she sought the discharge of all existing orders. The independent children’s lawyer supported that course. The minute of orders proposed by the father was modelled on Benjamin J’s orders and included the provisions in those orders for use of a communication book and the sending by the father of letters, cards, parcels and presents to the children.
As there will be no face to face contact, there is no need for a communication book.
The father’s attempt to communicate with the children in 2008 was rebuffed by C and there is no reason to believe a different fate would befall correspondence sent in the future. With Ms SN, both children rejected proffered gifts. I cannot find it likely correspondence or presents would foster a change of heart in J and C. From their perspective, such attempts to communicate are illustrative of his lack of respect for their stated positions. The notices the father placed in the newspaper demonstrate the difficulty the father has in not adding a jibe to what is, on its face, an anodyne message. To T, the jibe was at his faith; to M, her failure to advise him of the birth of grandchildren; to ME, a denial of autonomy: she “couldn’t stop” (his oral evidence made clear) because influenced by others. I cannot find an order in those terms would benefit the children.
Counselling
The father sought an order for the children to be assessed and, if necessary, treated for the psychological consequences of the stress and frustration he saw them as carrying. I do not find such an order warranted. The court can be confident J and C are supported and nurtured within the extended family and that the mother and other family members involved in their care are sensitive to their emotional needs. A decision in this litigation may reduce their anxiety and professional assistance can be accessed if the mother or adult siblings believe it to be useful.
Injunctions
Benjamin J enjoined the mother from “discussing and/or denigrating, or allowing others to discuss or denigrate the father’s faith, the father’s leaving of the Exclusive Brethren or his lifestyle in the presence of the children.” The independent children’s lawyer and the father sought that this order remain on foot. The mother submitted that no evidence supported the need for it.
It is true that the sense of the evidence, including Ms SN’s evidence of conversations with the children, is of them having no interest in talking about the father at all. Since he left the family in 2003 they have had very little contact with him. They saw him a few times after Benjamin J’s orders of 21 December 2006; there were some five visits to his home in P in early 2007, two hours at the Contact Service in January 2008 and a fleeting period together with Ms SN in August 2008. For them, family is made up of the people they see as loving and caring for them; sadly, the father is not one of them. The father may genuinely believe he is the subject of constant criticism or denigration in their home and at meetings, or would be, absent an injunction. The alternative – that his absence is unremarked – may be harder to bear.
Nevertheless, I do propose to make an injunction broadly as sought by the father and the independent children’s lawyer. It will not refer to “the father’s faith”; whatever the evidence before Benjamin J which warranted that inclusion, there is no evidence before me which could render the term meaningful.
By mandatory injunction Benjamin J had required the parties to do “all acts and things necessary to encourage the children to speak positively to and about the other parent and to discourage the children from speaking negatively to or about the other parent.” Nothing in the evidence satisfies me of the usefulness of a continuing order in these terms. In these circumstances there is no need to consider the enforceability of such a broad admonition.
Nor am I persuaded the court should enjoin the parties from discussing the proceedings, or allowing anyone else to discuss them, in the children’s presence. It is true that the children need relief from the stress of litigation but they are entitled to be told the outcome of the litigation. They are members of a large and busy household and courts need to be mindful of the limits of judicial interference. An order will preclude denigration of their father or discussion of his departure from the faith and his lifestyle; anything said about the proceedings must be consistent with that. I add that I am not persuaded that the mother or the family members who gave evidence before me have any current interest in speaking about the father, at all.
Other orders
The mother will be required to advise the father as soon as practicable of any serious illness or injury suffered by J and C and orders will provide for the father to have access to information about the children’s educational progress, as foreshadowed.
Contravention applications
As noted, the father presently maintains the two contravention applications. No submissions were sought as to their disposition. After an interval in which the parties can consider this decision, those applications will be listed for submissions. The father may elect to withdraw them, the mother may seek other orders. Some evidence referable to 26 May 2007 and 2 June 2007 was before the court. As the Full Court made clear when determining the respondents’ appeals against the earlier proven contravention, it is the mother alone who had the obligation to comply with the order providing for the children to spend time with the father and her capacity to do so was, on the evidence before me, impacted by her health and, on one occasion, hospitalisation. The father is aware, from his own success on such an application, that costs consequences can follow judicial determinations. He would be wise to seek legal advice prior to those applications being listed for submissions on disposition.
I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown.
Associate:
Date: 25 June 2009
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