RABY & FISK - [2013] FamCA 436

FAMILY COURT OF AUSTRALIA

RABY & FISK

[2013] FamCA 436

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time or communicates – various options including therapy have failed – no relationship between father and children – contact refused.

Family Law Act 1975 (Cth)

R v R (Children’s wishes) (2002) FLC 93-108
Re: F (Litigants in person guidelines) (2001) FLC 93-072

APPLICANT:

Mr Raby

RESPONDENT:

Ms Fisk

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

7595

2008

DATE DELIVERED:

11 June 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide

JUDGMENT OF:

Cronin J

HEARING DATE:

20, 21 and 22 May 2013

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ian Charman & Associates

Orders

That all previous orders are discharged.
That the mother have sole parental responsibility for the children T Fisk born … 2002, S Fisk born … 2003 and B Fisk born … 2006.
That the children live with the mother.
That the father be at liberty to communicate with the children by sending cards, letters or gifts to the children posted to R Street, E or such other address as advised in paragraph 8.
That the mother ensure that the children receive the letters, cards or gifts sent by the father.
That the father be restrained by injunction from:
(a) attending at or in the vicinity of the mother’s home;
(b) attending at or in the vicinity of the children’s school during school hours when the children are in attendance.
That the mother keep the father advised of the school the children attend or any change thereto with notice being provided in writing at the address nominated by the father in paragraph 8.
That each party keep the other advised as to a contact address for them and any change thereto.
That the appointment of the Independent Children’s Lawyer be discharged.
That all proceedings be otherwise dismissed save as to any application for costs.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That 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 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 should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 21 June 2013 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 5 July 2013 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: BRC 7595 of 2008

Mr Raby

Applicant

And

Ms Fisk

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The three children of Mr Raby (“the father”) and Ms Fisk (“the mother”) are T aged 11, S aged nine and B aged seven. All three children have seen and known little of their father for the last two years.
It was common ground that the father and the mother have been in a conflictual relationship for their entire 15 years during which there have been a number of court cases in this Court, the Federal Magistrates Court and the District Court of South Australia.
There comes a point where the law can do little more for parents particularly where social science has failed; this is such a case.
The father wanted a relationship with the children. The mother simply pointed to the relationship history and submitted that there should be no time between the father and the children. In the hearing, I expressed my concern that one of the few remaining options for these children to have a chance of having the benefit of a meaningful relationship with their father was through some form of therapeutic counselling. The family report writer whose evidence I accept, opined that such a course would border on systems abuse and sadly I agree.
In my view, this is a case where the glimmer of a possible future relationship lies in the children at least knowing and understanding that they have a father and one day, they may seek him out and not necessarily as adults. In saying that, I find that the mother has contributed to the dilemma.
These proceedings were transferred to this Court by the Federal Circuit Court but not until after significant parenting litigation.
As the final hearing began, the father sought an adjournment because, he said, his lawyers had suddenly ceased to act for him without explanation. He subsequently withdrew that application for the adjournment. Counsel for the mother disputed the circumstances of the father’s lawyer’s withdrawal but I was ultimately not required to inquire further.
The father said that he did not have all of his documents but, with the assistance of counsel for the Independent Children’s Lawyer, that problem was overcome.
I explained to the father the process that the Court would follow using the guidelines in Re: F (Litigants in person guidelines) (2001) FLC 93-072. The father acknowledged that he recognised and knew the process well. Indeed, his actions confirmed that.
I set this case down in February 2013 and made orders for the filing of affidavits. All parties complied. The father filed his affidavit first. It was prepared for him by a solicitor but much of it was either irrelevant or unhelpful because it pre-dated a critical final order. Additionally, the father did not set out the evidence to show how he would care for the children if he had them. That evidence was missing both in respect of his primary application that the children live with him but equally importantly, in a circumstance where he might be able to spend some time with them. The deficiency was overcome with some viva voce evidence but I find that on any view, the father’s evidence would not justify a conclusion that he could care for the children for any substantial period.
Initially, the father’s position was that he wanted the children removed from the mother to live with him and that she be excluded from their lives for some time presumably whilst they adjusted to him. When I pointed out the deficiency in his evidence to support such a proposition, he agreed that his real desire was just to see his children. I requested he reformulate his proposed orders and he did so in the following terms. He sought orders that:
·    Both parents undergo counselling to facilitate sharing of the children in future;
·    He have unsupervised time on alternate weekends from 6.00pm Friday to 6.00pm Sunday with some period of time as a build-up process;
·    He have fifty per cent of all school holidays;
·    He be able to have telephone contact weekly;
·    He have access to the children’s school for pick-up and delivery of children as well as attendance there on special occasions;
·    Each parent provide to the other details of illness and injury of the children;
·    Counselling be undertaken through psychiatrist Dr D for both parties;
·    The mother not relocate out of South Australia until the youngest child turned 18 years of age.
Having regard to the father’s position, I requested counsel for the mother to indicate whether the mother would be enthused by an order for the parties and children to try a therapeutic approach or something along the lines of what the father had proposed as I have indicated. The mother declined both through her instructions to counsel and subsequently in giving evidence.
It is important to look at the relevant history of this matter to understand the complexity.
The father is now 47 years of age and a self-employed visual artist who had previously been employed by an airline. When the relationship ended in May 2008, both parents were living in Brisbane and the mother returned to Adelaide which had been her early home.
The mother is 45 years of age and currently studying to be a health paraprofessional. She is dependent upon Centrelink for her support. She lives in rented accommodation and does not receive child support.
The father was cross-examined about his living circumstances as well as his financial position. He gave his residential address as that of his parents but the majority of time, he stays with his partner. It was put to him that he was being less than honest about that but I do not accept that it is quite that simple. I accept that he cannot not move to his partner’s premises permanently because she is involved in family law proceedings and he said that his companion was concerned about the impact of his move on her case.
The father’s business appears to be conducted out of his car and he keeps his current records there with boxes of other records stored at the home of his parents. He could not indicate with any certainty what his income was and he had not done his tax returns. All of that affected his obligation, let alone capacity, to contribute towards child support. His offer to look after the children on weekends and support them as such, had a ring of unreality about it in the light of his evidence that he was financially assisted by his parents, his partner and his friends. There is also some question mark about his desire to make a contribution to support his children bearing in mind that at the moment, all of that falls on the mother and indirectly, the taxpayers. That is an issue of significance because the father chose to leave his previous employment to pursue his career as a visual artist. When pressed, he said that he would have been forced to return to Brisbane and ultimately, that would have interfered with his pursuit of a relationship with his children. Even so, he had no solution as to how he could support the children with or without time being provided to him other than to rely on the good graces of other people.
Up until 2008, the relationship between the parents had been turbulent with the father alleging that the mother had been treated by a psychiatrist for self-harm problems. The mother denied that saying that she had counselling with a psychologist because of “domestic violence”. I am unsure what to make of all of that but in 2009, in a family assessment, a psychiatrist described the mother as having a paranoid stance towards the father. In her evidence, the mother was at pains to point out that all of her problems stemmed from the violent behaviour of the father and she had been in counselling ever since.
It is significant that prior to separation, there were multiple government agencies involved in this family’s life. They included police, mental health services, a hospital, domestic violence services and a child protection body. According to a family report writer in June 2012, in a summary of what had occurred, the father was alleging erratic and abusive behaviour by the mother and the mother alleging that the father was emotionally, physically and “financially” abusive to her. Indeed, in evidence, the father described the household as highly dysfunctional. With that statement I agree.
From June 2008 to December 2008, there was no contact between the father and the children yet in September, right in the middle of that period, the father organised to attend the mother’s home with local police so that he could speak to S for her birthday. His explanation was that it was a course recommended by his lawyers. It was only after some time in cross-examination that he acknowledged that what occurred was not a good idea. His justification however, was that he had not expected the police to do what they had done. Whilst it was the mother’s view that the father would do anything to dominate and control her, this was an example of lack of thought and insight rather than desperation.
Not only has the father been excluded from the lives of the children but so have his parents and his sister. There was no evidence from them that might have assisted his cause.
As the court file is in seven folders containing 122 documents, it is not surprising that every issue in this family’s life has been methodically canvassed. In addition to this Court and the Federal Circuit Court, the local welfare department has had significant involvement investigating issues such as sexual abuse. Additionally, in 2011-2012, the District Court in Adelaide determined the de facto relationship property dispute between the parties culminating in a judgment which included a large amount of costs against the father.
In February 2010, in the then Federal Magistrates Court, the final hearing came before Brown FM. The court record shows all parties were represented by counsel and the orders were made by consent. The orders began by noting that the parties were pursuing a therapeutic resolution to support “the children” spending from 5.00pm Friday to 5.00pm Sunday with the father during each alternate weekend plus half of the school holidays. Residence of the children was not in dispute. The therapist was named as Ms V and the therapy was to remain confidential. Then, the following appeared in relation to the child B:
That until the completion of therapy that the father shall spend time with the child [B]:
·From 10.00am Saturday to 5.00pm Sunday each alternate weekend commencing 13 February 2010;
·On Father’s Day from 5.00pm the day immediately preceding Father’s Day to 5.00pm Father’s Day provided the father’s time is suspended from 5.00pm the day immediately preceding Mother’s Day for the remainder of the weekend;
·11.00am to 4.00pm Christmas Day;
·At Easter from 5.00pm Friday to 5.00pm Saturday 2010 and each alternate year thereafter and 5.00pm Saturday to 5.00pm Monday 2011 and each alternate year thereafter provided that the children shall be in the mother’s care at all other times;
·As from 2011 for [B’s] birthday from 11.00am to 4.00pm on the Saturday or Sunday on the following weekend as may be agreed or as determined by this Honourable Court.
In relation to S and T, the order read as follows:
That the children [S] and [T] spend time with the father:
·   From the conclusion of six months from the commencement of therapy as provided for (in these orders) each alternate weekend (to coincide with such time as he sees [B]) from 10.00am Saturday to 5.00pm Saturday or such period as supported by the therapist (Ms [V]);
·   From 10 months from the date of these orders each alternate weekend from 10.00am Saturday to 5.00pm Sunday during school terms or such other periods as supported by the therapist and at the same time as [B];
·   From 12 months from the date of these orders each alternate weekend 5.00pm Friday to 5.00pm Sunday during school terms;
·   On special occasions as agreed between the parties after consultation with the therapist and (the family consultant) or in default of agreement as determined by this Honourable Court.
Provisions were placed in the orders for the timeframes to be brought forward if the therapist so recommended. Other orders made clear that this was an attempt to reconstruct the shattered and fragmented father and child relationship. Those orders were final and made with the benefit of each other’s affidavits and the various welfare reports. Yet, each party explained their approach to that day and to those orders quite differently.
The father said:
The matter was set for trial in the Federal Magistrates Court on 8 February 2010 for five days. The matter was resolved by way of consent minutes of order on the second day of the trial. I was concerned that the mother would not comply with the orders, but was assured by my counsel that there would be consequences if she failed to do so and that I needed to take a “leap of faith” and trust that the mother would comply with the orders.
The mother refused to enter the courtroom for the final orders to be made, and her counsel informed the court that the mother was “far too distraught to appear before the court”. Final orders were sealed in the Federal Magistrates Court by consent on 9 February 2010.
The mother who denied the father’s version said:
The final orders made in the previous Federal Magistrates Court proceeding provided for the children to live with me and to spend time with the father. Since those orders were made, however, [T] and [S] have not seen their father. This has been at their request.
To the family report writer, the mother said that she had wanted to proceed with the trial but her barrister opposed it. The mother had no objection to the therapeutic counselling but thought it was supposed to be a form of counselling to see if they could get to the point of contact with the father. She said she had trusted the opinions of professionals and experts in making the orders. All of that was a forlorn hope because both the contact between the father and B, as well as the therapeutic counselling, failed.

The therapy

Consistent with the final orders demanding confidentiality of the process, no evidence was called from the therapist. However, details emerged from other sources. In November 2010, a social worker from Families SA spoke to the therapist by which stage, the proposed therapy referred to in the orders had failed. Although a comprehensive affidavit with a whole lot of reports attached was filed in this Court, the details of why the therapy failed remained obscure.
The father said that at an attendance with the therapist during the time that B was attending the contact centre referred to in the orders, the therapist told him that B would bow to peer pressure from his siblings at home and eventually refuse to see him. He acknowledged that the therapist’s prediction was accurate. However, he was critical of the therapist because she did not, in his view, read all of the necessary material that he thought she should have had at her disposal. Indeed, he reported her to her professional regulatory organisation. As I understood the mother’s position, the therapy was terminated because it was pointless given the children’s views. That statement was consistent with the evidence that I have mentioned above.

The contact subsequent to the orders

Immediately after the orders were made, B did spend time with the father. On … February 2010 by all accounts, things went successfully. Whilst the father described a bruise on B which the child ascribed to his sister, the mother said she knew of no such incident that might have given rise to it. The conflict between the parties began to emerge because the father said that B did not wish to take his birthday presents home on that very first weekend because the mother would throw them away. In response, the mother said that B told her that his father required them to stay at his house.

The first sexual abuse allegation

Eleven days after the first contact period, an allegation of sexual abuse of B was made to child protection services. An investigation was immediately begun but it was not suggested that the Department was concerned with any conduct of the father. Indeed, the mother’s view was that Families SA said that she was not to allow ongoing contact because the alleged abuse occurred to B whilst he was in his father’s care. That had a strong suggestion of negligent parenting about it but there is no evidence that I can find that would enable me to make any judgment about what actually occurred. The mother was quick to acknowledge that the father was not implicated.

Child protection services seem to have been satisfied that there was no risk to B. They seem to have been reassured that the children were taking part in therapy and that both mother and father presented to them as being protective.

Visits to the contact centre

Contact resumed in March 2010. The mother attended on 13 March 2010 with all children for the purposes of handing over B in the usual way. The report of the contact centre noted B walked off with the worker to go to his father smiling. It was S who seemed concerned, quoting B saying that Dad said he would kill S, T and the mother. The worker did not seem troubled about that being serious. The mother was unable to give any explanations as to why any of that might have arisen.
On 2 April 2010, B went happily to his father and the worker observed two occasions where B spoke to his mother as he left and she did not respond. The mother’s explanation for her lack of response was not that she was uncooperative or unsupportive of the contact but rather that she suffered from a problem of being affected by background noise and just would not have heard what the child said.
On 8 May 2010, B went to his father on the Saturday without incident. On the Sunday at the handback, the worker noted that B came from the father holding a card saying:
I wrote this all by myself, Daddy didn’t help me.
The child repeated that to the mother who took the card and then handed it back to the worker saying “Give this back to them”.
Cross-examination by the mother about the card incident left me perplexed. She acknowledged that she had not opened the card and therefore had no idea what was inside it. She explained that historically, the father had never provided cards other than the previous year. She then produced a card which on its face, appeared innocuous. Apart from the printed words on it, it had scrawls of a child who was clearly not of an age where words could be written. When I asked whether the mother saw problems in that, she pointed to the printed words. They were to the effect that:
Not having you as a mother would be catastrophic.
The “catastrophic” word is broken up in what might be described in the card industry as a humorous way. The mother’s explanation was that she read that as a deliberate threat by the father as indicating that he would take the children off her. This may be seen as a hyper-sensitive response but having regard to the mother’s statement that the child began the conversation by saying that he had done it all by himself and his father had not helped him, might give rise to a plausible subjective explanation. Whilst this evidence left me perplexed as to how serious the mother was about the father having any involvement in the lives of these children, I take into account that the father has not made any other contribution by way of letters, cards and gifts nor financial support for the children in circumstances where at all times, he knew of the wife’s legal practitioners to whom such objects could be delivered not to mention the fact that there has been an Independent Children’s Lawyer throughout these proceedings. Indeed, the orders of February 2010 made it specifically clear that the Independent Children’s Lawyer was to remain in the case notwithstanding final orders had been made. Perhaps it was an unfortunate day to send such a card but I have to accept the mother’s explanation as to her concern.
In July 2010 there was a significant change. B refused to attend. The child did not respond to any greeting by the contact centre worker and indeed, covered his eyes. The mother spoke for him and explained that she thought it had something to do with the school holidays where all of the children had been together. B was unresponsive to the worker. The worker invited B to draw a picture that could be given to the father and the child agreed. That seemed to upset the mother. After a discussion between B and the worker, the child said that he wanted to go to “the farm”. When pressed about what that meant, the mother said that she had been packed to go to a farm with the other children and B would have been aware.
Up until July 2010 therefore, B had been compliant. That was so even though the therapeutic program for the other children had ceased.
In September 2011 B went again with his father and there seemed to be no problems. Indeed on the conclusion of the time on 5 September 2010, the worker reported lots of giggling and hugging by B of the father. Obviously, that did not take place in the presence of the mother.
By 11 September 2010, things had changed again and B was clinging to the mother but this time, T began to interfere. He said to B not to go and the worker had to coax B. The worker recorded the mother as trying to convince B to go but B was sitting in the mother’s lap. The mother then left and it was clear to the worker that B was unhappy. When the father was brought into the room, B curled up into a ball and it took some time for the frost to thaw but indeed, B went with his father and had shown signs of affection.
Counsel for the Independent Children’s Lawyer suggested to the mother that having T present was counter-productive. She denied that saying that she had little alternative but to take T and S with her because she was a single mother. It was put to her that she could have relied upon her mother but in a very obfuscating way, she said that she did not want to do that because her mother had other things to do and she did not want to involve her in any event. That was a weak explanation. Whether it would have made any difference however remains a moot point.
By the end of September 2010, B was attending the contact centre and was clinging to his mother. T was yelling through a door and kicking it. The mother told T to stop and he did so. Eventually S joined in screaming and crying and the mother left with B being coaxed to spend time with his father.

The second sexual abuse allegation

Late on a Friday afternoon prior to scheduled time between the father and B, the contact centre advised the father that B would not be handed over. He was informed that the mother had made an allegation that B had been sexually abused by him and consequently, he agreed to suspend visits. He then attended an interview with the child protection service and in his words, was “cleared” of any wrong doing. B underwent a forensic medical examination and as I understand it, no evidence of trauma arose.
The mother’s version of what occurred was that she became aware that B and his cousin were displaying their genitals to each other. She said she was concerned about B’s behaviour and spoke to him telling him that his behaviour was inappropriate. She said B responded by reassuring her saying that it was okay because it was not the same game that he and his father played. That brought about a notification to Families SA. In her evidence, the mother said she was extremely reluctant to make a report because she was fearful that the father would use it as an opportunity to take the matter back to court to have the children removed from her. She had read a report of a case where unfounded but persistent allegations of sexual abuse had given rise to such an order. When pressed about what she meant, the mother said that she believed that something had happened to B and that the father had done this for the purposes of getting the case back into the court. That is an extremely serious allegation but one that has no factual foundation having regard to the investigation that was subsequently undertaken.
Despite her emphatic belief, the mother took B again to the contact centre to resume spending time but B shook his head when asked whether he was going on the visit with his father. Despite the valiant efforts of the worker, B simply clung to his mother and refused to talk to the worker. The worker realised the dilemma and B went home with his mother according to the worker, “smiling”. No contact has occurred since that time.
In her submissions to the Court, counsel for the mother made it abundantly clear that the mother was not seeking a finding from the Court in relation to that sexual abuse allegation nor could it be said that the Court could make a finding that the father deliberately orchestrated the abuse of B for the purposes of getting the matter back to court. At the time that all contact ceased, the relationship between the father and all three children was in my view irreparably damaged and there is now no prospect of it being resurrected in the foreseeable future.
The mother was cross-examined closely by counsel for the Independent Children’s Lawyer about the prospect of another attempt at therapeutic counselling and the mother emphatically rejected it. Indeed, to push the children into another such pathway must surely border on abuse. Because there is no evidence other than what the parties provided, the options for the Court are extremely limited. The family report writer made that abundantly clear in June 2012 pointing out that one of the possible conclusions was to exclude one of the parents from the lives of these children.

The period subsequent to November 2010

Little needs to be said about this particular period until trial. The father’s position did not alter until the hearing began before me. In June 2012 presumably with the benefit of the family report to which I shall refer below, an interim hearing occurred before Dawe J. Her Honour recorded in written reasons that the father had sought orders for an immediate change of residence with the assistance of the police or the Court. The application was opposed by the mother but also the Independent Children’s Lawyer. Her Honour found that the Court was not able to say that the father’s proposal was in the children’s best interests.
Desperate or otherwise, it was clear that the father’s position by mid-2012 was to remove the children from the mother if he was to ever be able to see them. That was the position he adopted in February 2013 when I listed the matter for trial and repeated in his amended application filed 2 April 2013.
With the benefit of hindsight and all of the untested evidence, the father’s view was unrealistic.

Family Report

Ms J is a clinical psychologist whose qualifications and expertise were not challenged. She prepared reports in February 2010 and May 2012.
In her evidence, Ms J confirmed that she stood by her reports and each party had the opportunity to cross-examine her.
Ms J was a thoughtful, calm and impressive witness. She had not only interviewed the parents and children but also tested them using standard professional measures. Her opinion carries significant weight.
Throughout her evidence, Ms J said that an important determination was the credibility of the parents about their respective versions of the violent nature of the relationship as alleged by both. In her view, much depended upon whether the mother was truthful. That may be so for the purposes of the social scientist approaching the perceived psychological problems of the individuals but I am not convinced it is critical here. A finding of violence or its absence here, or indeed a general finding as to truthfulness, does not alter a very salient feature of this case. In February 2010 in the final court orders to which they consented, the parties (unwittingly, involuntarily or otherwise) acknowledged that two out of the three children were struggling and resistant to any relationship with their father. The therapeutic model was the road they began and it failed. The two children in that model became more entrenched as their youngest sibling continued to go down the contact centre handover route. B could not have been unaware of the resistance and dislike for his father as expressed by his siblings. The two older children could not have been oblivious to the fact that, having resisted the therapy, there was little else to do but decline any involvement in their father’s life. Thus, the credibility of the parties would have made little difference because the children had come to such an entrenched position that the options for the Court were very limited.
Ms J conceded that it was inevitable that over time, B would be infected with his siblings’ views and in turn, he too would take the stance of resistance.
In the father’s interview with Ms J, he said that he expressed empathy for B deciding not to see him noting that B was potentially under great pressure from his maternal family. Indeed, to use the expression the father used in his final address, by the middle of 2010, the “writing was on the wall”.
I agree with counsel for the Independent Children’s Lawyer that it is not necessary for me to make a finding in this case as to who is responsible for the problem between the father and the children. My task is to work out what is in the best interests of the three children and a very significant fact here is that the Court’s options are very limited.
Ms J recorded the father as stating that the mother had engaged in a deliberate plan to alienate the children from him. He accused her of lying and manipulating “situations” during the court proceedings. He told Ms J that her first report had prevented him from proceeding to trial because it was inconclusive, biased towards the mother and having taken things he raised out of context. Curiously, there was a consistency about that sort of complaint from the father but as he said in final address, his case had been mishandled but he said he had to take responsibility for that.
When Ms J assessed the mother, it was apparent that the mother saw no fault at all on her part for the dilemma. Ms J was left in no doubt that the mother was immovable.
Ms J assessed the children. T showed no identification between himself and his father. He told Ms J he did not want to see his father because of all the “hurtful” things his father had done in the past but he could not remember what they were. S told Ms J that it would be “bad” to see her father. B said he was not seeing his father because he did not like him and because his father had done bad things to him.
Ms J noted that the children’s expressed dislike for their father remained consistent even if there was no specific detail. She opined that their early experiences of conflict had been significant and had negatively influenced their view about even B going to see his father. She noted the therapeutic approach had not worked but the children were managing better than they had been in the first report over a year before.
Some important observations were then made which form the basis of the conclusion that the Court’s options were very limited. Ms J said:
At no point have the children enjoyed a sustained period of settled contact with both parents, in which (the mother and the father) have actively supported and facilitated such contact amiably and independently.
Ms J noted that the mother presented as intent on demonstrating her own vulnerability within the context of the family violence and the father presented as intent on demonstrating the mother’s persistence and sustained attempts to exclude him as well prove that she had mental health issues.
Ms J said:
When professionals (whom she named) have expressed an opinion that even gently questions either parent’s views or positions, both parents (as noted in their documents and interviews) have reacted strongly – seeing any such stance as biased towards the other parent or unprofessional.
Ultimately, Ms J said that the reactions of the parents:
Highlight the concern about each parent’s ability to reflect on what the children need, independent of their own wishes and views.
Ms J thought that the parents were unable to extract themselves from conflict particularly having regard to the fact that it had endured for more than 15 years. Sadly she then concluded:
This writer now only sees one outcome – the complete exclusion of one parent, most likely permanently.
Ms J ultimately indicated that she had no information to suggest that either parent could, not in complete isolation, parent the children adequately, but having regard to the absence of any indication that the husband could undertake that role plus the very significant resistance by the children, there is little that the Court can do by way of assisting these children.
Ms J was questioned at length about what options there were. On a variety of questions she sadly acknowledged she had no answers. She confirmed that things such as what had occurred at the contact centre were not helpful. She confirmed the children understood what was happening about the therapy and that it had failed. She acknowledged that some of the parenting issues of the mother such as allowing two of the children to sleep in her bedroom and indeed in B’s case, in her bed, were a problem. That sort of issue indicated that T was at high risk of not developing a stable and independent identity.
It is significant in this case that Ms J felt that the children have now identified their mother as all good and their father as all bad and that has significant consequences for the future. Ms J hypothesised that children in that situation will have future difficulties with identity and in forming relationships with others. The answer lies in the hands of the mother but having regard to the comments of Ms J that I have quoted, I see no signs that the mother has recognised these problems.
Despite all of that gloom, there is no suggestion that the mother cannot physically provide for the children and she cares for them otherwise extremely well. That can be seen in the school reports all of which show the children are settled and doing well.
To the extent that the mother may have contributed to this dilemma, Ms J thought that the case had come too far and all of the input from a variety of people had not shifted her position. As Ms J said, you cannot make someone believe. Her view was that it was important to try and reduce the stress on the children and that by forcing them into counselling was clearly emotional abuse. As to how the children could be assisted, Ms J conceded that there was no point in therapy when the credibility issue had not been properly resolved. Counselling with just one parent was likely to be unhelpful.
On the subject of how the relationship, if any, should be continued with the father, Ms J said that cards and letters might be of assistance but that very much depended upon whether or not it was supported and dealt with properly. At least I have the evidence of the mother that she would ensure that the father’s relationship continues but she must be conscious of the warnings of Ms J about the future.
Ms J hypothesised that these children may at various times raise the question about who their father is and seek details about him and if not properly handled, there will be further emotional trauma for them.
As I indicated earlier, the evidence of Ms J, limited as it was, was very helpful.

Final submissions

The Independent Children’s Lawyer said that there was no useful order that could be made for the children to spend time with the father. He said that ideally, orders should be made for counselling and also for a future review of the children’s views. In respect of the former, despite resistance of the mother, it was submitted that counselling might go to some extent and assist the children. I accept the mother’s position in relation to that for two reasons. First, the continued pushing of the children into reliving their experiences may be counter-productive if it is not supported by the mother. I have little confidence that she will support it. These children already understand the nature of the dispute because they went through the previously ordered therapeutic process in 2010. Secondly, at least in respect of the mother, she has been through a two year or more process with her own psychiatrist Dr D who was not called as a witness. The mother now feels it is no longer necessary to undertake such assistance and is relying upon her general practitioner.

A second issue submitted by the Independent Children’s Lawyer was that there should be a future review of the children’s views but not necessarily through litigation. It was submitted that Ms J was ideally placed to take on that task. This would be a rechecking process so that the children have every chance to reconnect with their father but it was acknowledged that the mother would have difficulty in accepting it. The mother’s position was to oppose the review despite the fact that Ms J thought it might be possibly productive.
In my view, a review is likely to give unnecessary hope to the father, annoy the mother whose control over the children is very strong and possibly force the children when unready, to face the confusion and upset that has permeated their lives to date. It seems more likely than not that the children will become inquisitive as their cognitive development continues particularly if the father keeps the understanding that they have him as a father alive. A fixed date for review seems therefore unnecessary and possibly counterproductive.
In his final address, the father’s position was emotively but succinctly put as follows:
· These have been five frustrating years for him during which his case had been mishandled and for which he took the responsibility;
· “The writing was on the wall” and he had not agreed to withdraw from his quest for the children because as he said, he only failed if he failed to try.
In respect of the father’s latter point, counsel for the mother in her final address was critical of the father. She said the father had the comprehensive report of the expert witness which contained recommendations. She submitted that the father could have agreed to an order limited to contact by cards and letters but he still chose to cross-examine the mother. What he had questioned the mother about was her capacity to get the children to have a significant relationship with him suggesting the children would agree if she supported it. Despite the mother’s evidence that she would support a contact relationship by correspondence, the father still chose to proceed to require a determination. I would not criticise the father for his persistence for a number of reasons. First, both parties had been dissatisfied with the previous consensual arrangements which each thought they had been pressured to accept. Secondly, consensual arrangements had failed leaving the father in a position of not accepting the mother’s willingness to make orders work. Thirdly, the mother’s evidence about the Mother’s Day card, which accepted by me, was evidence which the father would be entitled to say was an attempt at responsible parenting if he genuinely believed there was nothing sinister in the card’s message. As such, a suggestion of cooperation by the mother would understandably be met with cynicism. Fourthly, a court cannot coldly ignore the emotional reality which is that whilst the Court must, as its paramount consideration make orders in the best interests of children, they are not the only interests and removing the children from the father’s life understandably is hurtful to him. It must be seen as the last option. Fifthly, as the father said, he had wanted to establish that he had done nothing wrong in relation to the allegations of sexual impropriety involving B and whilst that issue was not pursued, final orders effectively excluding the father from the physical life of the children, left him with an unresolved issue. To the extent that it needs to be said, the mother did not seek any finding of impropriety even though in evidence, she was emphatic that the father had done something to give rise to the problem. I make no such finding nor could I do so on the evidence.
It is therefore understandable that the father maintained his position to the end whilst at the same time acknowledging that the options open to the Court were extremely limited.

The legal issues

Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the law in relation to parenting disputes. Section 65D empowers the Court to make an order regarding the care arrangements for children including who is to be responsible for making long-term decisions about them, who the children are to live with, as well as a variety of contact arrangements.
Section 65D provides that the power is subject to the presumption of equal shared parental responsibility set out in s 61DA. In this case, the father is not seeking equal shared parental responsibility. His application is now only to spend some time with the children. Even if that were not the case, there is sufficient history to rebut the presumption set out in s 61DA(4). I could not be satisfied that it would be in the best interests of these children for the parents to have equal shared parental responsibility.
Section 64B(1) defines a parenting order. An order may be made in relation to any aspect of the care, welfare or development of a child as well as any other aspect of parental responsibility.
When making a parenting order, s 60CA requires the Court to find that the child’s best interests are the paramount consideration. I have earlier mentioned that it is not the only consideration but where there is a conflict between those considerations, the best interests of the child must prevail.
To determine what is in the child’s best interest, s 60CC provides a check list of how those interests are determined. The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The words “meaningful relationship” do not just mean contact between parent and child. There must be some benefit for the child in having that relationship.
In respect of those primary considerations, I find there is no benefit for the children at least at this stage in their lives in having a relationship with their father of the type that would require physical contact, constant communication and the opportunities for guidance and learning from him. On the evidence, that is just not possible.
I find also that there is a need to protect the children from psychological harm in this case. That psychological harm is most likely to arise by the persistent attempts through a variety of formal structures to create a relationship that at the moment does not exist. The evidence of the expert confirms that.
Section 60B of the Act provides the principles and objectives of Part VII of the Act. One of those principles is the right of the child to have contact with and communicate with both parents. Notwithstanding there is no prospect in my view of a meaningful relationship benefiting the children here, I find there is a basis to find that the father should not be excluded completely from the lives of the children. It is possible that the inquisitive nature of the children will be such that in due course, they will want to find out who he is and what he has done and how he can be a part of their lives. It would be psychologically damaging for them to have a significant contact with him at the moment such as would normally be deemed to be a meaningful type of relationship. There is not sufficient evidence however for me to find that it would be damaging psychologically for them to at least be aware of his presence. For that reason, orders for the father to send the children cards, letters and presents are appropriate.
Section 60CC(3) sets out additional considerations to those set out above. They can be dealt with globally in this case.
All three children have now expressed a very clear view about their resistance to spending time with their father. The evidence is sufficiently strong in respect of the older two children, corroborated by what has gone on in the past, to accept that their views should be followed. B is probably too young to have his views considered but I have little doubt that he is simply following the course undertaken by his siblings. It is well settled that although children’s views must be taken into account, the Court is not bound by them (R v R (Children’s wishes) (2002) FLC 93-108). This is a case where the Court should follow the wishes of the children for the reasons articulated above.
The parents’ views about the nature of the children’s relationships with each of them are a stark contrast. There is no relationship with the father. Sad as that may be, and regardless of who may have caused the problem, the relationship is such that it would be an abuse of the children to force them to continue that sort of relationship. On the other hand, they are very much attached to their mother. They look to her for security. To force changes even of a therapeutic nature may very well be damaging to that relationship.
Section 60CC requires the Court to look at the willingness and ability of the parents to facilitate and encourage a relationship between the children and the other parent. All of the evidence points to the fact that the parents have no prospect of communicating with one another and in that environment, it is unlikely that any encouragement to have a relationship with the other parent is likely. The mother articulated that she would ensure that the children knew of their father and would facilitate any cards and letters and presents being given to the children. Careful focus in the evidence was on her conduct at the contact centre. She was criticised for failing to make the handover successful. I have already set out my views about that. I asked the mother how the children would react if she took a proactive and positive view about their father and she was unresponsive. I cannot help but find that she has no respect for the father as a result of what she perceives she has been through. I could not seriously expect that the father would be respected in the mother’s household nor that she would encourage the children to have a relationship with him. Whilst the father maintained throughout the proceedings that all he wanted to do was have a relationship with the children, his actions in relation to financial support, the Mother’s Day card and his views about removing the children from the mother indicate that he has little respect for her. I could not be confident that he would promote a relationship between the mother and the children even if it was possible.
I have seriously contemplated what impact would arise from removing the children from the mother and am satisfied that it would be psychologically damaging to do so. The father initially commenced the proceedings with that in mind but acknowledged that there was no evidence that I could rely upon such that I could give the children to him. I find therefore that any prospect of the children living with the father would be damaging to their psychological health. Similarly, even spending time with their father alters the existing status quo for these children and as the expert evidence showed, forcing that to continue would be counter-productive.
The mother to all intents and purposes provides for the children’s needs including their emotional and intellectual needs. The father has not had that opportunity so I am unable to really find whether he has the parental capacity to care for any of the children’s needs in any event.
These children are clearly aligned with their mother. This is not the first time that litigation has endeavoured to resolve the problems and it has again failed. These children therefore need an opportunity to be withdrawn from the battle between their parents.
Another consideration in s 60CC is the attitude of the parents to the children and the responsibilities of parenthood. For the reasons that I have set out above, neither parent has made a success of their parenting role and only time will tell whether what each of them has articulated will serve their children’s best interests. Neither of them has been proactive about enabling the children to enjoy the benefit that the Australian community desires for them as set out in the terms of s 60B.
Section 60CC has a very heavy emphasis on examining how family violence has affected children in their relationships with parents. Family violence is destructive. I am not in a position, because of the way the evidence was produced, to make any findings about family violence in any detail. Suffice to say, this family was completely dysfunctional and the children are now facing the consequences. It would be unhelpful in this case for me to make any further inquiry into the family violence issue or make any specific comment about whether either party’s view was right.
Section 60CC encourages courts to consider whether it would be preferable to make an order which would be likely to preclude further proceedings involving the children. The therapeutic model of involving children in the lives of their parents is clearly designed to help parents give their children that which they deserve. A litigation model can be destructive because parents point to the worst side of the other parent’s capacity and sense of responsibility. In this case, both models have been tried. Both quite frankly have failed. It is important therefore to give the children an opportunity to avoid being involved in the conflict between their parents which, as I earlier observed, has been going for 15 years. In the fullness of time, these children will most likely be inquisitive about who their father is and to the extent that he continues to keep that alive by presents, cards and gifts, he may one day be able to establish a meaningful and fulsome relationship with them. For the moment, they deserve to step out of that environment and just become children.
I do not propose to make any further comments in relationship to s 60CC(4) and (4A) as those matters have been adequately covered.
For the reasons that I have set out, the appropriate orders are for the father to step away from the lives of the children other than by cards, presents and gifts.
One of the orders sought by the father was that there be an injunction granted against the wife from removing the children from the Adelaide area. The Independent Children’s Lawyer supported that. The logic behind the father’s position was that the children were doing well here and that an interstate move may very well affect his capacity to keep in touch with the children’s school. In my view, the father’s interest can be maintained by means other than simply attending the school. The injunctions I propose to make as sought by the mother and supported by the Independent Children’s Lawyer keep him away from the school when the children are in the vicinity in any event. As the mother has sole parental responsibility and daily responsibility for the children with little prospect of financial support from the father, it is not appropriate that I make an order restraining the mother from moving anywhere. The critical question is that she give the father the relevant details so that he can continue the communication and be able to obtain information.

I certify that the preceding One Hundred and Three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 June 2013.

Associate:

Date: 11 June 2013