PICTON & ALLEVA
[2021] FCCA 10
•13 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PICTON & ALLEVA | [2021] FCCA 10 |
| Catchwords: FAMILY LAW – Parenting – family violence – children fearful of father – weight to be given to children’s wishes – children aged 16 and 14 - children have not seen father for 8 years. |
| Legislation: Family Law Act 1975 (Cth), ss.4; 60B; 60CA; 60CC61B; 61C; 61DA; 65DAA; 65DAC Evidence Act 1995 (Cth), s.140 |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 |
| Applicant: | MR PICTON |
| Respondent: | MS ALLEVA |
| File Number: | BRC 3767 of 2011 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 26, 27 May & 6 July 2020 |
| Date of Last Submission: | 6 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 13 January 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kennedy |
| Solicitors for the Applicant: | HCM Legal |
| Counsel for the Respondent: | Mr Jones |
| Solicitors for the Respondent: | Cornerstone Law Offices |
| Counsel for the Independent Children's Lawyer: | Ms Fraser |
| Solicitors for the Independent Children's Lawyer: | Julie Harrington Solicitor |
ORDERS
That the children, X born in 2004 and Y born in 2006 (“the children”) live with the mother.
That the mother have sole parental responsibility for the children.
That the children spend time or communicate with the father at such times as initiated by the children.
That the father be restrained from approaching the children or attending the children's school or extracurricular activities unless invited by the mother or the children in writing.
That the father be at liberty to provide his current contact details to the children's school.
That each party be restrained from denigrating the other to or in the presence of or the hearing of the children.
That the mother give the father 14 days notice of any intention to remove the children from their school and within 2 days of enrolment at a new school she must advise the father of the name, address, telephone and email contact details for the new school the children are enrolled in, so as to enable him to provide his details to the school pursuant to Order 5 hereof.
That leave be granted to the Independent Children's Lawyer to publish the reasons for judgment to the principal of the children’s school and in the event that the mother removes the children from their current school after the discharge of the Independent Children's Lawyer the father shall be at liberty to contact the children’s new school and provide them with a copy of the reasons for judgment along with his contact details.
That within 14 days of the date of these orders the mother cause the children to meet with the Independent Children’s Lawyer as arranged to enable the Independent Children’s Lawyer to explain these orders to the children.
That upon the satisfaction of Orders 8 and 9 hereof, the Independent Children's Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Picton & Alleva is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 3767 of 2011
| MR PICTON |
Applicant
And
| MS ALLEVA |
Respondent
REASONS FOR JUDGMENT
Introduction
Sixteen year old X and her fourteen year old brother, Y do not have a relationship with their father, Mr Picton. Their mother, Ms Alleva told the court the children are fearful of the father as a consequence of his violence both during and after their relationship. The father asked the court to make orders that would enable him to re-commence spending time with Y and for re-unification therapy to commence. He proposed that X spend time with him in accordance with her wishes. The mother opposed the father’s application although she was open to an order that the children spend time with the father as initiated by them.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the child as the paramount consideration.[2]
[1] S.60B
[2] S.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[3] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[3] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[4] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[6]
[4] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[5] S.61DA
[6] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[8] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[9] A major long-term issue in relation to a child means an issue:
[7] S.61B
[8] S.61C
[9] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[10]
[10] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[11] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[12]
[11] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[12] S.65DAA(2)(c) & (d)
Competing Applications and Material Relied on
The applicant father filed his Initiating Application on 26 June 2018. At trial he sought the following orders:
1. That all previous parenting Orders are discharged.
2. That X (X) live with the mother and spend time with the father as per her wishes.
3. That Y (Y) live with the mother and spend time with the father as per his wishes, providing he spends at the least the following time with the father:
a Two (2) hours every second weekend at a Contact Centre for a period of six months.
b And any additional periods, as the court may see fit.
4. That the Mother is ordered by the Court to encourage the children to have a positive relationship with their Father and spend time with him.
5. That the child Y start Family Reunification Therapy.
6. That both parties are restrained from denigrating the other parent or members of their Family in the presence of the Children.
7. That the Father be permitted to contact the children via email or letters.
After hearing the evidence from the family report writer the father further amended his position. He sought orders for Y to attend family reunification therapy and that the father be permitted to contact the children by email during that time. He did not seek orders to spend time with Y until completion of the therapy when the time would be for two hours supervised each fortnight. He wanted an order that X spend time with him in accordance with her wishes and that once Y turned 15 that he too spend time with him in acordance with his wishes. He sought an order that the mother be restrained from denigrating the him.
The mother filed a Response on 1 August 2018 and an Amended Response on 5 May 2020. The orders sought by her at trial were consistent with the orders set out in that amended response and are repeated here:
1. That all previous parenting orders are discharged.
2. That the mother have sole parental responsibility for the children:
a. X born in 2004; and
b. Y born in 2006.
3. That the children live with the mother.
4. That the children spend time with, communicate with, and/or live with their father as initiated by the child/children by any means as the child/children may choose.
5. That the father is restrained from contacting the children via email, telephone calls, and social media unless any such contact is first made to the father by the children.
6. That the father is restrained from approaching or attending the children’s school or extra-curricular activities unless he is invited in writing by the children.
7. That neither parent shall physically discipline the children.
8. That neither parent shall denigrate the other parent or members of their family in the presence of the children or within the hearing distance of the children.
9. That the children are permitted to travel out of the Commonwealth of Australia to a country that is signatory to the Hague Convention with the mother or the father in whose care they are at the time, or with the consent of the mother for the purposes of but not limited to, international school excursions or scouts.
10. That pursuant to s.11(1)(a) of the Australian Passports Act 2005, the mother be at liberty to obtain an Australian travel document for X born in 2004, and Y born in 2006 without the need for the consent of the father, and these Orders shall provide sufficient authority for the mother to obtain or renew each child’s passport.
11. That the children’s passport shall be held by the mother.
12. Such other orders as the Court may deem necessary.
The children were independently represented in these proceedings and the orders sought by the Independent Children’s Lawyer (“ICL”) at the conclusion of the evidence were:
1. That the children, X born in 2004 and Y born in 2006 live with the mother.
2. That the mother have sole parental responsibility for the children.
3. That the children spend time or communicate with the father at such times as initiated by the children.
4. That the father be restrained from approaching the children or attending the children's school or extracurricular activities unless invited by the mother or the children in writing.
5. That the Father be at liberty to provide his current contact details to the Children's school.
6. That the mother be restrained from causing the children to be unenrolled from B School.
In the alternative or if the Court does not make Order 6:
7. That the Mother shall give the father 14 day's notice of her intention to remove the children from their school and within 2 days of enrolment at a new school she shall advise the Father of the name, address, telephone and email contact details for any school the mother enrols or intends to enrol the children at, so as to enable him to provide his details to the school pursuant to Order 5 hereof.
8. That leave be granted to the Independent Children's Lawyer to publish the reasons for Judgment to the principal of B School and in the event that the Mother removes the children from the B School after the discharge of the Independent Children's Lawyer the Father shall be at liberty to contact the school and provide them with a copy of the reasons for judgment along with his contact details..
9. That upon the satisfaction of Order 8, the Independent Children's Lawyer be discharged.
The applicant father relied on:
a)His Amended Initiating Application filed 26 June 2018; and
b)His affidavit filed 14 May 2020.
The father’s affidavit which was prepared by him, was voluminous and totalled some 599 pages. Counsel for the mother raised objection to a large proportion of the affidavit. The objections where appropriately conceded by the father’s counsel and I have not had regard to those parts of his affidavit that were objected to.
The mother relied on:
a)Her Amended Response filed 5 May 2020;
b)Her Notice of Risk filed 1 August 2020; and
c)Her affidavit filed 5 May 2020.
The ICL relied on:
a)The affidavits of Ms C filed 8 February 2019 and 18 May 2020; and
b)The affidavit of Ms D filed 6 May 2020.
A number of documents were tendered into evidence.[13]
[13]
The Evidence
In determining this matter I have had regard to all of the written evidence referred to above along with the oral evidence given by each of the parties, Ms D, and Ms C. Throughout these reasons I will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[14] In order to limit the size of this judgment not all factual issues will be addressed. However those that are important to my determination will be considered either in this section or whilst addressing the s.60CC factors.
[14] Section 140 Evidence Act 1995 (Cth)
Before addressing the evidence it is important to consider the credit of the parties. I am satisfied that each party attempted to give their evidence to the best of their ability and as honestly as they could. Regrettably however they each fell short in that exercise as they have allowed their memories to be clouded by their perceptions of the other and their dispute. At times the father presented as someone who sought to minimise his actions or to justify them. I will address some of these incidents below. The mother on the other hand appeared to embellish the facts on a number of occasions in her evidence. Consequently discerning the truth of some incidents was not an easy task, however on balance, I am satisfied that I have been able to make findings sufficient to enable me to determine the ongoing best interests of the children.
The father is 54 years of age. He lives in a unit in a suburb of Brisbane. He worked for many years for Employer E but at the time of trial was not in employment, relying on social security. When he was twelve years old he was involved in a motor vehicle accident and suffered a brain injury. He spent eight months in hospital and had a period of rehabilitation. He claimed the injury has not impacted his mental health. The mother holds a different opinion. She told the family report writer that she considered that the father did not have the capacity for reasoning of a normal adult male, and that he was an angry adult man with an adolescent brain. There was no evidence before the court to corroborate the mother’s opinion. I preferred the father’s evidence in this regard.
The mother, who is 52, lives in the Region F and works in an administrative role.
The parties began living together in 2003. X was born in 2004 and Y in 2006. The parties separated on a final basis in May 2010.
Following separation the children remained in the mother’s primary care. Both parties remained living in Brisbane, albeit in different suburbs. The evidence suggests that initially the children’s time with the father was sporadic and informal. According to the mother the father was not consistent in phoning the children or in attending time that she arranged for him. The mother said that when he did attend time with the children he would argue with her over money and child support, often in front of the children. She gave as one example when the father would spend time with the children at McDonalds they would argue over who should pay for the children’s food. I accept the mother’s evidence.
In October 2011 the parties entered into interim consent orders for the children to live with the mother and spend overnight time with the father on alternate Saturdays supervised by the paternal grandmother. In March the following year the parties signed a parenting plan providing for the children to live with the mother and spend time with the father from after school Friday until midday Sunday with the paternal grandmother to supervise the father’s time from 5pm Saturday to 9am Sunday. When the parties obtained final consent property orders in April 2012 the Court discharged the interim parenting orders and noted the parenting plan. This finalised the first proceedings between the parties in the Federal Circuit Court.
Much of the mother’s case related to her fears of the father as a consequence of family violence and stalking of the family including at the children’s school. I will address some of the alleged incidents.
Christmas 2012
Following the resolution of court proceedings, the parties and the paternal grandmother made arrangements to spend Christmas together at the mother’s home. The father and the paternal grandmother arrived on Christmas Eve with the intention of staying until Boxing Day. A violent altercation between the father and the mother occurred on Christmas Eve with the parties giving different versions of the event.
The father’s evidence was that the parties and paternal grandmother were finishing dinner when the mother became agitated and an argument ensued. The mother told the father and paternal grandmother to “go home”. The father said he did not know why or what made the mother agitated. The mother then became aggressive approaching the father and paternal grandmother with a raised fist. The mother attempted to punch the father. He restrained her by her wrists whilst she kicked him. In doing so the mother fell backwards onto a glass table which the father pulled her away from. At this point the mother called the police. The father claimed he never hit or threatened the mother and only restrained the mother to prevent injury to himself and his mother. Following the incident the father waited on the veranda until police arrived.
The mother’s version was quite different. She said the father had been stroppy. When he and Y became frustrated with each other the mother asked the father and paternal grandmother to take the children for a walk to the Christmas lights. Everyone returned home happy. The paternal grandmother assisted in the preparation of dinner and the children set up decorations. The father then became angry and began to pace. The mother requested him to stop and he reacted by grabbing her around the throat and around her shoulders while she had plates in her hands. He pushed her backwards onto a glass table top smashing it and a fish tank. He held her whilst she attempted to kick him to free herself. Y started hitting his father with a blue stick and X was crying calling on her father to leave the mother alone.
When the police attended the mother’s home they noted X to be upset. The father and paternal grandmother willingly left the property after speaking to the police. On 8 January 2013 a Temporary Protection Order was made on a police application. The application named the mother as the aggrieved, the father as the respondent and the children as protected persons.
On each party’s account the children were present in the home during this altercation.
I acknowledge it is difficult for witnesses to recall events that are more than eight years old but this was a significant event and one they each clearly recall, albeit differently. I was left with the impression after each of the parties was cross-examined that the father minimised his role in this event and the mother over dramatized it. In making those comments I do not mean to be dismissive of their evidence, but it is clear that each party has developed a narrative in their own minds as to the history of violence in their relationship and this incident in particular. On the balance of probabilities I am satisfied that both parties were responsible for escalating a dispute that got out of hand and became physical. I am satisfied the father was more forceful than he attempted to portray in his evidence and that he pushed the mother onto a glass table which shattered. The children were witnesses to this assault.
2013 Concert
A few weeks after the Christmas Eve incident in January 2013 the children attended a performance with the paternal grandmother. The mother claimed that the paternal grandmother had provided written agreement via lawyers to ensure the father would not be present. However, he did attend and the mother was subsequently made aware. The mother claimed the father’s attendance was in breach of the Protection Order. This was the last time the father spent any time with the children. The mother gave evidence that she had not expressly discussed with the children that the father would not be in attendance.
On 5 February 2013 a Final Protection Order was made for a period of twelve months. The children remained as protected persons.
Counsel for the mother put to the father that following these incidents he was offered supervised time at a contact centre. The father said he saw a lawyer who advised him not to sign the “paperwork” as it was unfair. The father also added that he could not afford the supervision costs.
School and Sports Incidents 2013
The mother gave evidence of the father attending the children’s school or the streets near the school on a number of occasions without notice. The mother had provided the school with a copy of the protection order. She said, on one occasion after the January 2013 concert, she and the children observed the father hiding in bushes within the school grounds. This alarmed the children who ran into a classroom to hide from him. The mother located the children’s teacher and explained what was happening. By this time the father was standing behind her shouting for the children. The mother then walked out of sight from the father to the back of the children’s classrooms where she collected her car and drove it behind the classroom the children were hiding in. The children were ushered to her car without the father seeing them. The mother and children then waited in the car until other parents informed them that the father had left. Not long after this incident the mother changed the children’s school to G School. At this school Y wrote to the Principal saying he did not want his dad to come to the school.
In early 2013 during the same period of time the father was attending the children’s school he would also turn up at the children’s sports classes. The mother said that in February 2013 she asked the father to leave the classes as he was in breach of the protection order. His attendance at the school and the sports classes was starting to cause her and the children serious concern.
In March 2013 the father attended the children’s sports grading exam. He had contacted the instructor to enquire when the exams were occurring. She described him as using intimidating body language and giving glares. She claimed that when the children saw the father they left their warm up session going to her and saying “Daddy has to leave, He’s going to hurt you”. The mother then sought assistance from the manager who advised he could only call the police. She then decided to leave with the children exiting out a back entrance of the hall. Despite claiming to be fearful for her safety and that of the children, she didn’t actually leave. She and the children hid in a garden hedge next to the school hall. The owner of the property challenged her and one of the children told him they were hiding from their father as he was going to hurt their mother. The mother’s evidence was that the children were very upset and anxious. Somewhat surprisingly, when the father left, the children went back inside and completed their exams notwithstanding their anxiety.
Despite the mother saying to the father that he was in breach of the protection order she did not report these incidents to the police.
On 24 February 2014 the mother made her own application to vary the protection order. She was successful in varying the order to include restraints on the father from attending her residence, place of work, or approaching within 100 metres of her or having any contact with her. This order was made for a period of twelve months however the Magistrate removed the children’s names from the order. This particular protection order expired on 25 February 2015.
Town H
After the expiration of the protection order the mother moved to Town H. She was hopeful that living in a country town would be beneficial for the children and that the father would not find them. Soon after she arrived in the town she went to the police station to bring to their attention the past protection orders and advise them that she was fearful of the father.
A significant amount of evidence was placed before the court dealing with the mother’s care of the children and the children’s emotional and behavioural difficulties during their time in Town H. I do not propose to address this evidence in detail as there is no case before the court for a change of residence. It was however helpful to understand the difficulties experienced by the mother and children whilst living there, particularly in relation to X’s self-harming and Y’s behavioural difficulties at school which led to a number of suspensions. The children’s behaviour and emotional wellbeing at this time contrast significantly to their wellbeing at their current school.
The father gave evidence that he visited the town for the first time in 20 years and after looking in an antique store, he overhead a conversation in the street about a difficult child called Y. He decided to attend the school to ask if his children were attending there.
After that attendance, whilst viewing documents produced under subpoena in these proceedings the father came across the mother’s address that had not been redacted. He again went to Town H and took photos of her house from a vacant block next to her home.
The ICL put to the father that he went to Town H to locate the mother and that he was stalking her. Although he denied the proposition I do not accept his denial. The father’s evidence did not ring true, particularly when all of his evidence is considered. He also gave evidence of having previously been at a party when he witnessed someone else’s phone that had photos of the mother and the people there looked up her address which he noted was on the north side of Brisbane. He also gave evidence of offering to do some volunteer work mowing lawns for a charity that provides emergency accommodation. In the course of a discussion with the organiser he formed the view that one of the houses was to be made ready for the mother and the children so he offered to work on that property. He also gave evidence of having been in Suburb B having a coffee when he just happened to see the mother drive by. There are just too many co-incidences in his evidence for me to accept on the balance of probabilities that his evidence should be accepted.
I am satisfied that at least until recently the father has continued to search for the mother and children and that his conduct in doing so has amounted to a form of stalking. Whilst the nature of his actions do not appear to have been motivated by malevolence the mother and children were not to know that.
Region F
In October 2017 the mother enrolled the children in schools in Suburb B in the Region F. Her temporary accommodation in that area fell through and she returned to Town H, but continued to take the children to school there despite the travel time being around one and a half hours each way. Ultimately the family made the move to the Region F and have now settled in the area. Both children are enrolled in the local state high school and the father has been aware of this enrolment since 2018 after seeing subpoenaed documents. Unaware of this, each child wrote to the school principal asking her not to allow the father to come to the school.
On 1 May 2018 X wrote the following to the principal:
Dear Ms D
After years of running and hiding, I no longer want to, or want to have to.
Not being able to be pictured with friends, not being able to hang out with friends outside of school, constantly having to look over your shoulder, seeing your family constantly stressing, only having support and security from one parent. It gets stressful.
It gets hards [sic] sometimes but thank you for understanding and trying to help my friends to understand a little bit.
After years of him not leaving us alone, including the two year period of the D.V.O., I don’t want him around us or allowed to be around us, only to harass us for more time. I know that he would do more than just harass if he found us, but that shouldn’t have to be a thought.
Thank you for understanding and helping us
X
1/5/18
On the same day the mother sent an email to X and copied the principal into the email. The subject headline was: Emergency Plan and other bits to think of. In this email the mother was critical of X for talking to her friends before going to the student services desk to report her attendance at school. The mother went into detail about X not hanging around the stairs with her friends as it was a potentially dangerous spot to wait in case her father came. The whole tenor of the email was that she needed to be vigilant and careful because she was at risk of going missing.
The evidence from the school principal would suggest that both Y and X had settled in well to their current school. Y was no longer exhibiting behavioural issues and X had developed into a mature teenager with leadership potential.
Determining the best interests of the children – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The children’s relationships[15]
[15] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
It is clear that the children have a close and loving relationship with their mother despite some earlier difficulties. They do not have a relationship with their father. They do not wish to have one. The father blames the mother for this and fails to accept any responsibility for his part in that. He invited the court to find that the mother has instilled in the children an unwarranted fear of him.
There can be no doubt that the children are fearful of their father. They have each written to their teachers and principals over the years. They have been largely consistent in their comments with the family report writer and in the most recent report appeared to have hardened in their perceptions. The emails dated 1 May 2018 referred to above are indicative of both the fear held by the children[16] and the narrative drawn by the mother. The mother maintained that X’s email to the school principal was hers alone without any input from her. She said both children had developed a sense of independence from their days at a J School and their letters were their own. Although I accept the children are self-motivated I do not accept the mother’s evidence that she did not assist them in writing the letters. I formed the view that the mother influenced the children to write to the teachers and made suggestions as to what should be in the letters. That is not to say the children did not mean what they said. Rather the issue of the risk of harm to the children by the father has been an ongoing discussion in the mother’s household and the mother has fuelled the children’s fears. In her email to X on 1 May 2018 the mother, despite telling X not to worry, was at pains to describe a potential risk that the father would come and take her away. For years the mother has been instilling this fear in the children even though there has never been an occasion when the father has tried to take the children away from their home, their school or any other place the children have been.
[16] Although these emails were from and to X, Y has also expressed similar concerns.
The mother claimed the children’s fear of the father arose out of his violence to her in front of the children and his continual stalking. The father claimed the fear was generated by the mother’s denigration of him and is unwarranted. I am satisfied that it is a combination of both those things. The children witnessed family violence between their parents. The mother, no doubt fearful of a continuation of that violence, instilled in the children the need for the family to be kept safe. The father’s attempts to see the children at their school and sports classes, whilst not intending any harm to the children, has nonetheless aggravated the sense of fear in the children because it has allowed the mother to perpetuate the narrative of risk. The father’s failure to take up the option of supervised time at a contact centre deprived the children of the chance to separate their mother’s fears from the father’s motivation to be involved in their lives in a positive way.
The reality, regardless of the reason is that these two teenagers believe there is a risk to them if they were to spend time with their father. This fear is unlikely to change in the short term. The father was hopeful of Y undertaking therapy to assist him to develop another perspective in the hope of rekindling a relationship between them. Whilst well-meaning I am not persuaded that it would be in Y’s best interests to make such an order. It would clearly be against his wishes and would be counter-productive. It is likely to make matters worse rather than better. If he was much younger I may have come to a different conclusion.
Risk of harm[17]
[17] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I have addressed above the issues of family violence. The mother maintains that this risk is as alive today as it was around the time of the separation. The father’s continual search for the children would not have alleviated any concerns held by the mother. I am not critical of the mother being vigilant. No person who has been a victim of family violence should have to live in fear of it returning to their life. The father clearly lacked insight into the mother’s perceptions and preferred to blame her for his lack of a relationship with the children.
Despite the undeniable history of family violence and the father’s lack of insight, I have come to the conclusion that there is no longer an unacceptable risk of harm to the mother and the children from the father. The father does not know the mother’s address, although he knows the area in which she lives. He also knows which school the children are enrolled in and has not attended it. I accept the father’s attempts to locate the children has been motivated out of care and concern for the children. He has wanted to learn how they have been going and to re-kindle a relationship. There has not been any intention on his part to cause harm to the children or mother. It is regrettable that he lacked the insight into how his actions have perpetuated the children’s fear of him.
The children’s views[18]
[18] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
When the family report writer interviewed the children in November 2018 they were adamant they did not want to see their father. The report writer assessed each of them as being of an age and having a level of maturity that warranted giving considerable weight to their views. Their views had not changed when they were again interviewed on 17 April 2020. If anything they had hardened somewhat. In the 2018 interviews Y was open to the possibility of him sending a letter to his father telling him that he wanted to be left alone but by 2020 he did not want to have any form of communication with his father at all.
X had acknowledged in 2018 that the father might have been motivated by a sense of care when sending gifts to their school and enquiring about them. Despite this she remained fearful of her father knowing which school they were attending. She did not want to see or have anything to do with him. When advised by the ICL and the report writer that the father had known which school they were attending since 2018 but had not attended the school both X and Y seemed a little reassured but maintained their opposition to any contact with the father.
The father maintained that the wall of resistance put up by the children was fostered by their mother. I have no doubt the children have aligned themselves with their mother partly because she has been unable to shield her fears of the father from them. Her actions in emphasising safety plans for the children whilst they are at school have also fed into this fear and rejection of their father. However their fears were first fuelled by the father’s assault on the mother and the family violence in the home. The father’s persistence in seeking out the children would have also impacted the children’s views. The father does not appreciate just how damaging that has been for these children and that it is their own lived experience. The mother’s actions have not helped but are not the sole cause of the children’s fears and perceptions.
The report writer opined that if the father had taken up the option of supervised time with the children from the outset things may have turned out different. I share that view but of course it is speculation.
Given their ages and level of maturity and the consistency of their views over time I propose to give significant weight to their views. In doing so I am satisfied that a consideration of this factor does not support the father’s case for a resumption of time. I will address his application for therapeutic intervention later in this judgment.
Practical difficulties[19]
[19] S.60CC(3)(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.
From a geographical distance point of view there would be no practical difficulties in making arrangements for the children to spend time with their father. This consideration however is of much lesser importance to the other issues identified in this judgment.
Parental capacity and responsibility[20]
[20] S.60CC(3)(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.
Unfortunately for these children both parents have lacked sufficient insight into how their actions have caused emotional harm to the children. Whilst the mother was attempting to protect the children from further incidents of family violence she has added to the children’s fear by her over dramatized responses to incidents at times. I don’t want that observation to be perceived as a major criticism. The mother’s personality and her own experiences of family violence with the father have influenced her ability to parent the children after separation. The father’s love for his children and desire to know about their education and welfare led him to seek the children out in a way that was overwhelming for them and for the mother. He lacked the insight to see that he was conducting himself in a way that was a form of stalking and was raising the children’s levels of fear of him. These approaches taken by the parents and the father’s failure to take up supervised time with the children after separation have led to the current situation. Eight years have passed and the children are entrenched in their positons.
Background issues[21]
[21] S.60CC(3)(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.
The children have an Aboriginal background through their mother which will not be negatively impacted by any orders for them to spend time with the father as they would continue to live primarily with their mother.
Limiting further proceedings[22] and any other fact or circumstance that the court thinks is relevant.[23]
[22] S.60CC(3)(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.
[23] S.60CC(3)(m)
The father invited the court to make an order requiring Y to attend family reunification therapy. The report writer gave evidence that it would be damaging for the children to be placed in a situation of having to spend time with their father before they had an opportunity to work through their issues and be prepared for it. She said that if time is to be ordered the therapeutic work would need to come first given their entrenched views. Although the father did not press any form of therapy for X he maintained his position that Y should attend therapy. After hearing the evidence from the report writer he changed his position on seeking time with Y. His final position was to seek the time commence after the completion of the therapy.
If such a course was adopted there would be a risk the parties would return to court because it is highly likely Y would simply refuse to attend and the mother would not have the capacity to force him to do so. The father would perceive this as the mother influencing Y and would form the view she is in contravention of the orders. Putting aside the futility in forcing a person into therapy against their wishes, it cannot be said to be in the children’s best interests for these parties to continue their dispute and return to court.
I assess this issue as an important factor to take into account.
Presumption of Equal Shared Parental Responsibility
The presumption of equal shared parental responsibility does not apply in this case given the history of family violence. The mother sought an order for her to have sole parental responsibility and this was supported by the ICL. The father sought an order for equal shared parental responsibility but given the history of family violence and the inability of the parents to communicate effectively I am satisfied it would not be in the children’s best interests for such an order to be made.
Consideration of Equal Time or Substantial and Significant Time
Neither party sought an order for equal time or substantial and significant time and given I have found the presumption of equal shared parental responsibility does not apply I am not required to assess this consideration.
Discussion
This is a particularly sad case as the children’s emotional wellbeing and their relationship with their father may have been much different if the father had have sought legal action a number of years ago. The length of time since the children have seen them, their current ages and entrenched views mean that it is not in their best interests to make positive orders for them to spend time with their father now. To do so would backfire and set back any chance of the children seeking their father out when they get older. It is important though for the children to know that if they change their minds and want to spend time or communicate with their father they are able to do so. I will make an order to that effect.
The father pressed for an order for Y to attend therapy but I am not satisfied that is in his best interests. The father is well meaning in seeking the order but it is contraindicated on the evidence. At the moment Y wants nothing to do with his father. He is now 14 years of age. He has had behavioural difficulties at school which appear to have only recently settled. To thrust therapy upon him with a desire to reunite him with his father against his wishes will not only backfire, it may destabilise the gains made at his current school.
The evidence as to how well the children have settled into their new school and have been open to support from the principal and teachers there led the ICL to seek an order that the mother be restrained from un-enrolling the children from this school. The mother was prepared to accept such an order but I indicated during submissions that if I made an order for the mother to have sole parental responsibility for the children it would not be appropriate to make such a restraint. It would also risk the matter having to return to court if there was a significant change of circumstances such as the mother being offered a job in another state or some distance from their current school. I will not make such an order.
I am however satisfied that it would be in the children’s best interests to make the alternate order sought by the ICL. This order would require the mother to give the father 14 day's notice of her intention to remove the children from their school and advise him of the new school details within two days of enrolment there. The purpose of this order is designed to enable him to provide his details to the new school should the children wish to contact him.
The father sought an order that he be permitted to contact the children byway of email or telephone. The children do not want this and I propose to accede to their wishes. I acknowledge the father is not motivated by any malevolence in seeking that order but it will only aggravate the children’s current positions. It will not assist the children to seek him out at some time in the future. I am however satisfied that he should be able to give the school they attend his contact details in case the children want to seek him out. To give the children, and the mother, comfort I will make an order restraining the father from approaching the children or attending the children's school or extracurricular activities unless invited by the mother or the children in writing. Again, whilst finding no malevolence on the part of the father the history of him contacting and attending at the children’s schools has fuelled the children’s fear. They need reassurance it will not happen again if there is any chance of repairing their relationship with the father over time. It will be necessary for the ICL to explain the orders to the children so they are aware of the measures that have been put in place.
The ICL also sought an order that she be permitted to publish these reasons for judgment to the principal of the children’s school or in the event the mother removes the children from their current school after the discharge of the ICL’s appointment the father be permitted to publish these reasons to their new school. The primary reason for this is so the principal of the school can have a greater understanding of the family’s history which would help her in her work with the children. I am satisfied it is appropriate to make that order and that it would be in the best interests of the children.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 13 January 2021
Exhibit ICL 1: Tender Bundle;
Exhibit ICL 2: Email dated 1 May 2018 from the Respondent to X and the school Principal; Exhibit ICL 3: Email dated 16 May 2018 from the Respondent to the school Principal.
S.60CC(3)(c): The extent to which each of the child’s parents 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.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, 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.S.60CC(3)(j): Any family violence involving the child or a member of the child’s family.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parentsS.60CC(3)(h): If the child is an Aboriginal child or Torres Strait Islander child: (a) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (b) the likely impact any proposed parenting order under this Part will have on that right. See also S.60CC(6).
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction