RAGENDI & RAGENDI
[2013] FamCA 780
•11 October 2013
FAMILY COURT OF AUSTRALIA
| RAGENDI & RAGENDI | [2013] FamCA 780 |
FAMILY LAW – CHILDREN – Long-term conflict and litigation between the parties in respect of a child now aged 14 ½ – Child has lived with father since aged three and expressed strong wish to continue that arrangement and see mother when the child wishes – Mother seeks order for week about time with the child – Orders that child live with the father and spend time with the mother as and when the child wishes.
Family Law Act 1975 (Cth) – ss 60B, 60B(1), 60B(2), 60CC (1),(2),(3),(4),(4A)
| Sheffield and Oakes [2013] FamCA 183 |
| APPLICANT: | Ms Ragendi |
| RESPONDENT: | Mr Ragendi |
| INDEPENDENT CHILDREN’S LAWYER: | Lampe Family Lawyers |
| FILE NUMBER: | MLC | 7311 | of | 2008 |
| DATE DELIVERED: | 11 October 2013 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 5, 6 & 7 August 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kanaren |
| SOLICITOR FOR THE APPLICANT: | Brighton Legal Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Father in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Jenkins |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lampe Family Lawyers |
Orders
Mr Ragendi (“the father”) have sole parental responsibility for the child J Ragendi born … 1999 (“the child”) excluding questions of:-
(a) any proposed name change of the child; and
(b)relocation of the child’s primary residence from the Melbourne metropolitan area.
Ms Ragendi (“the mother”) and the father have joint parental responsibilty in relation to any proposed change of the child’s name, overseas travel (which will not be unreasonably rejected) and relocation of the child’s residence from the Melbourne metropolitan area.
The child live with the father.
There be no order that the child spend time and communicate with the mother and IT IS NOTED that the child, if she wishes, may spend time and/or communicate with the mother as negotiated (in advance in terms of time spent) directly between the child and the mother and in the absence of any formally scheduled time.
The father shall reasonably encourage the child to spend time with the mother.
These orders are authority for the mother to:-
(a) obtain from the child’s school copies of school reports and newsletters;
(b) to speak to the child’s teacher about school work; and
(c) subject to the child’s consent the mother may attend school activities and extra curricular activities of the child.
The father shall keep the mother informed of any medical issues or other significant issues as to the child’s health, welfare and development, where possible in advance, otherwise as soon as practicable thereafter.
Each of the parties shall keep the other party and the child appraised of their residential address, telephone numbers including mobile telephone numbers, and if those details change will notify the other parent and the child within forty eight (48) hours of any such change.
Neither party shall demean, belittle or abuse the other party or members of the other party’s family in the presence or hearing of the child.
The mother be restrained from discussing these proceedings or past legal proceedings with the child and be further restrained from discussing changes of residence with the child.
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.
IT IS DIRECTED
Within fourteen (14) days the Independent Children’s Lawyer will, in person, inform the child of these orders including:-
(a)that the child is able to make arrangements to see her mother, in the absence of any formally scheduled times, as and when the child feels it is appropriate;
(b)that the mother is restrained from discussing these proceedings or previous proceedings and change of residence with the child; and
(c)the father is required to encourage the child to see the mother and not unreasonably interfere with those arrangements.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
All outstanding applications be dismissed.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ragendi & Ragendi 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 MELBOURNE |
FILE NUMBER: MLC 7311 of 2008
| Ms Ragendi |
Applicant
And
| Mr Ragendi |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Mr and Ms Ragendi (“the father” and “the mother”) have one child, J, who was aged 14 ½ at the date of the hearing and who has been in the primary care of the father since she was aged about three. The mother seeks orders that J (“the child”) live with her week about. The mother’s application was unsuccessful and these are the Reasons for that determination. At the conclusion of the hearing the Court made orders which were distributed to the parties and these are the Reasons on which those orders are based.
These parties have been involved in almost constant parenting litigation in respect of the child since 2002. At that time an order was made that the child live with the father. He has been her principal carer since that time and it is the child’s wish that she continue to live with the father.
In this iteration of the proceedings between the parties, the mother applied for orders that there be equal shared parental responsibility and that the child spend equal time with each parent on a week about basis.
The father and the Independent Children’s Lawyer sought orders that the father have sole parental responsibility for the child and that the child live with him and there be no specified orders in relation to the child spending time with the mother.
There were a number of areas which there was some agreement. The first was that any decision about the child moving out of the metropolitan area, travelling overseas or having a change of name (not that any of these were being considered at the present time) ought to be the subject of joint decisions. I made an order to that effect.
The second area of agreement was that both of the parties and the Independent Children’s Lawyer submitted that an order should be made that neither of the parents abuse, demean or belittle the other party or members of the other parties’ family in the presence or hearing of the child. That being uncontentious that order was made.
BACKGROUND
The mother was aged 48 at the date of hearing and worked as a child care worker. The father was aged 47 at the date of hearing. The parties commenced cohabitation in 1997 and married in October of that year. The child was born in 1999.
The parties separated in October 2001 and at that time there were mutual allegations of violence by the parties. In October 2002, when the child was approximately three years of age, an interim order was made that the child live with the father and that the child spend time with the mother on a supervised basis. Within a year or so those proceedings came before this Court for a final hearing and orders were made that the child live with the father, there be joint parental responsibility and that the child spend some time with the mother.
The proceedings came back to a Court exercising jurisdiction under the Family Law Act 1975 (Cth) on a number of occasions following that time and in December 2008 Federal Magistrate Hartnett (as she then was) made orders that the child spend supervised time with the mother. That supervision requirement was removed in June 2009.
These proceedings were commenced by the mother in November 2011 in the Federal Magistrates Court (as it was then known) and they were subsequently transferred to the Family Court. On 28 January 2011 orders were made dismissing the contravention application of the mother, dismissing orders made in December 2009 or part of the orders made in December 2009 and provided for the child to spend some time with the mother.
The proceedings were heard by me in August 2013 and by that time an Independent Children’s Lawyer had been appointed and a family report had been commissioned and completed. The evidence before me was that of the father, the mother and the Family Consultant.
The mother endeavoured to rely on evidence from a psychologist, Mr S, and I refused leave for the mother to rely on that material and I delivered ex tempore reasons at that time.
The father sought to rely upon a psychologist’s report annexed to his affidavit filed in December 2011. I refused to admit that report in evidence.
The Family Consultant gave evidence to the effect that these parties had been in a long standing dispute almost continuously from 2001 to 2013 and reported that there were only two years where there was no parenting litigation pending.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE ISSUES
The issues include:-
·what weight should be given to the views of the child;
·whether the views of the child are her own views or that of the father;
·what orders, if any, should I make in relation to the child living with the mother (on the mother’s case the child should at least have half the time with the father); and
·if orders were not made that the child live with the mother, what orders, if any, should the Court make in relation to the time the child spends with the mother and the child’s communication with the mother.
RELEVANT LEGAL PRINCIPALS TO BE APPLIED
I repeat the comments I made in Sheffield and Oakes [2013] FamCA 183 where I said:-
38.Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the pathway in determining parenting arrangements for children.
39.Section 60B of the Act sets out the objects and underlying principles to make sure that the child’s best interests are met. Section 60CA requires the Court to regard the best interest of the child to be the paramount consideration.
40.In determining the best interests of the child the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B and in particular the need to ensure children have the benefit of both of their parents having meaningful involvement in their lives and at the same time to protect children from abuse, neglect or family violence.
41.In Heath v Hemming (No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part VII of the Act, I have endeavoured to address this decision in accordance with that direction. In additions Kent J considered a pathway in determining parenting orders under Part VII of the Family Law Act 1975 (Cth) (‘the Act’), including an outline of the source of the Court’s powers pursuant to s 87 when he said:-
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation:
(i)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(ii)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(iii)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(iv)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(v)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(vi)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(vii)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i. Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii. Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(viii)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(ix)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and The child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
42.I have considered and adopt the pathway suggested by Kent J.
43.The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
44.When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
45.There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in the abuse of the child or family violence the presumption does not apply.
46.If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.
THE EVIDENCE
The mother
The mother gave evidence as set out in her affidavit sworn 30 May 2013 and filed 19 July 2013.
The mother gave an outline of the history of the proceedings and the parties in her affidavit. In particular she sets out the numerous family reports obtained in respect of this child including four reports from Ms L; February 2002, August 2002, November 2003 and February 2005, a report of Dr M of November 2008, a report of Ms G of May 2010 and the two reports of Mr N of February 2012 and July 2013.
By any measure this child has been subjected to an constant level of litigation as a consequence of her parents conflict. The mother asserts that the whole of the issues arise from the father allegedly alienating the child from her and his control of the child. The mother says that the child has no mind of her own and is wholly acting in the shadow of or the direction of the father.
The mother said this is the last opportunity she will have to form a close relationship with the child.
The mother gave evidence in chief, detailing contact between herself and the child since May 2013 including one overnight occasion and some telephone calls. The mother claimed that the Family Consultant was biased and his approach to preparing the report was unsatisfactory.
The mother said that she has a strong bond with the child which, in the circumstances outlined by her, is somewhat contradictory.
The mother’s evidence was that on occasion she makes numerous telephone calls to the child, particularly if she does not receive a prompt response. Having regard to other evidence I am satisfied that this evidence of the mother was somewhat disingenuous to the extent and nature of the calls. One example of this was the fathers assertion (which was not seriously challenged and which I accept) that there had been 125 missed telephone calls made by the mother to the child on one particular day.
The mother was asked questions by the Independent Children’s Lawyer as to whether her approach in disregarding or dismissing the views of the child ([the child] expressing strongly her desire to remain living with the father) what would be the impact upon the child. The mother’s answers to these questions were ambivalent and she showed lack of insight or reality.
When questioned about some of the statements made by the child the mother asserted that the child had made them up or that the child has been told to say these things by the father. The mother initially prevaricated in response to whether she believed the child. The mother’s evidence was in these ways fashioned to meet the outcome that the mother sought.
The mother was cross-examined in relation to the communication she had with the child about her allegedly wanting to live with the mother. The child had reported to the Family Consultant that the mother had been persistently pressing for the child to live with her and spend more time with her and tell others that this was what the child wanted.
The mother said that no request for the child to live with her had been made by her [the mother] for many years. Having regard to the evidence and the quality of the mother’s evidence I do not believe her. The statements of the child to the Family Consultant and these very proceedings make it clear that the mother continues on her long crusade to have the child live with her.
There was discussion about the child spending time with the mother for a day following the hearing to attend a twenty first birthday party, the mother, when there was no issue in respect of that (provided the child wanted to go), sought to have the child stay overnight the night before. As such the mother’s answers about not engaging with the child in relation to the time the child spends with her are not credible.
In many ways the mother has been unable to move on from what happened when the child, then aged three, was taken from her care. There has been consistent agitation and legal action since that time to change that outcome.
The mother was cross-examined as to her understanding of the child’s views and the concerns. The mother seemed to give little weight to that concern. The mother gave little weight to the child’s complaint to the Family Consultant that when she gives information to the mother it comes back to her by the mother in a negative form.
The mother prevaricated and at times her evidence seemed fanciful in terms of the interaction between the mother and the child as set out by the Family Consultant.
The mother was cross-examined in relation to her discussions with the child as to where the child is to live and she obfuscated in answering to those questions.
Generally the mother’s evidence was troubling. She had little insight into the impact of her proposals on the child and would give no credit to the father in that the child still had a good relationship with the mother despite the mother’s views of the father. Her evidence is generally unreliable.
The Father
The father gave evidence in accordance with his affidavit filed 19 December 2011. He was cross-examined by the Independent Children’s Lawyer and counsel for the mother. The father was unrepresented. He listened carefully to the questions and answered them frankly.
I am not convinced that he has encouraged the child to the extent that he asserts. I am not convinced that he has endeavoured to alienate the child from the mother. Despite years of litigation the child still has some relationship with the mother.
I accept that the father permits the child to spend time with the mother although at times he is careful in that permission, such as the text contained in Exhibit M2. That was not an indication of the father alienating the child but the father exercising sensible parental restraints bearing in mind the context of that request and to that extent I accept the evidence of the Family Consultant.
The father’s approach to the child can be seen in a sensible way he handled the situation when the mother commenced attending the child’s netball matches. The father took steps to absent himself from attending the games and consequently facilitated the child spending time with her mother. The mother gave the father no credit for that and criticised him on one occasion when the father wanted the child to hurry up as the father had food cooking at home.
I am generally satisfied that the father’s evidence is reliable. However, it is seen through the prism of his own views and his own poor regard for the mother.
The Family Consultant
A family report was prepared by Mr N (“the Family Consultant”) and dated 17 July 2013. The Family Consultant was cross-examined by counsel for the mother and was asked questions by the father. He presented as careful, balanced and thoughtful in his evidence.
He was challenged as to bias and as to some issues of fact. The Family Consultant carefully and responsibly answered the questions and I am satisfied of the following:-
·generally the facts upon which he relied are soundly based;
·his recordings of the views of the child were soundly based and that his assessment of the child in the context of the family are soundly based; and
·there was no challenge to the Family Consultant’s evidence.
DISCUSSION
The Family Consultant recommended that:-
·there be no formal order in respect of the child spending time with the mother and that she should spend time as is agreed between the child and her mother;
·the child continue to live with the father; and
·the father facilitate the time the child spends with the mother and that the child continue to see a counsellor.
In terms of the child’s views, the Family Consultant observed the following:-
51.As noted above, [the child] advised quite clearly that she wanted to remain living with her father in the long-term and ideally proposed spending time with her mother as negotiated directly between herself and her mother in the absence of any formally scheduled time together.
The Family Consultant opined that the child’s views showed a reasonable degree of maturity and insight from her view, she had considered spending time with the mother and was mature and articulated in the detail of the report. He says that this young person of maturity was expressing her own views and not those of the father.
The Family Consultant goes on to say that the child loves the mother and she would like to be closer to her but because of the issues raised in his report that the mother’s behaviour may be such that this does not occur. An example of this was set out in paragraphs:-
38.[The child] specifically recalled in February 2012, following her initial discussion with this Family Consultant, that her mother became upset and angry after reading the Children and Parents Issues Assessment whereby she [the mother] had alleged [the father] told [the child] what to say during her interview. However, [the child] stated that on the Sunday prior to meeting with this Family Consultant for the preparation of this Family Report, her mother said she should tell the report writer that she too would like an equal shared-care parenting arrangement.
39. [The child] stated that she does not spend regular time with her mother. … When asked to elaborate, [the child] stated that her mother continually raises past issues, statements she has made to her counsellor, this Family Consultant, her father and said her mother instructs her to make alternative statements in the future. In addition, her mother solicits family members to also tell [the child] what she should say. [The child] added that on some occasions the telephone calls with her mother are not positive and she ([the child]) chooses to not spend time with her mother and when such incidences occur, she tells her father that she does not want to see her mother.
40.… [The child] stated that she has attempted to tell her mother what she does not like, with regards to her continually bringing past incidences and allegations, but her mother continually says she does not understand what [the child] is referring to and that she is, “just a loving mother”.
41.… However, during the second visit, [the child] said her mother started asking questions once again and specifically asked if [the child] had intended to tell this Family Consultant that she wanted to live with her mother.
…
43.… [The child] identified a possible issue if she were to live in a shared-care arrangement and said her mother would become angry if she wanted to visit her father for whatever reason, suggesting that her mother would not be supportive of her relationship with her father.
In evaluating the material before him the Family Consultant observed:-
63.Whilst considering shared parental responsibility, the parents are likely to experience great difficulties reaching agreement about future parenting decisions due to the historical struggles in their relationship, long-standing conflict, years of litigation and an inability to effectively communicate with one another. Whilst ideally, shared parental responsibility should continue and this would ideally be in [the child’s] best interests, this Family Consultant lacks confidence [the father] and [the mother] could effectively discuss, plan or consider anything regarding [the child] jointly. It is noted [the child] is already an adolescent and it does not appear likely the parents may be faced with many issues necessitating sole parental responsibility. However, when considering joint versus sole parental responsibility, the history of intense conflict between the parties may be an issue this Honourable Court may need to take into account with respect to the future.
64.Orders made by the Honourable Justice Cronin on 10 April 2013 for the preparation of this Family Report specifically noted two distinct issues the report writer should consider as noted at paragraph 7(a) and 7(b). These two issues will be addressed in turn.
65.With respect to the first issue noted at paragraph 7 (a), “The views of the child and the level of her maturity in expressing those views”, it was abundantly clear that [the child] was in a position to convey her views in a clear and concise manner. She spoke at considerable length and articulated that she would like to maintain a relationship with her mother, but believed her mother was in actuality obstructing their relationship because of the ongoing conflict and problems. [The child] explained that her mother does not accept she would like to remain living with her father and continually brings up past issues time and time again whenever they are together.
66.[The child] demonstrated a degree of insight in understanding the current circumstances and appeared to give much thought to the future as she hypothetically contemplated a change to the parenting arrangements for the sole purpose of appeasing her mother. Whilst [the child] clearly did not want a regimented arrangement whereby she spent time with her mother on a regular basis, unlike many adolescents who often maintain unyielding views, she demonstrated a degree of maturity and was prepared to at least consider spending regular time with her mother. However, [the child] was [sic] demonstrated a level of insight which seemed that she had actually given such a proposal some thought beforehand. [The child] was able to explain herself, her reasoning, how she came to her position and a particular level of open-mindedness to compare and contrast different options.
67.In this Family Consultant’s opinion, given the level of maturity, demonstrated insight, length of time she engaged in discussions and [the child’s] preparedness to continue spending time with her mother, albeit not regimented, all support the assessment that due weight should be afforded to [the child’s] views. Due to the long-standing conflict between the parties, it is likely that [the mother] may not accept that [the child’s] expressed views as genuinely independent, but this Family Consultant is confident a shared care parenting arrangement was adequately and thoroughly explained to [the child]. Whilst it is recognised a judicial decision may be required to make a finding regarding the weight that should be afforded to [the child’s] views, this assessment would support the notion that significant weight should be given to [the child’s] views as expressed to this Family Consultant.
68.The conflict between the parties is quite significant and appears to have endured over several years. By this Family Consultant’s account, since 2001 there has only been a period of two years whereby the parties have not been embroiled in litigation, this does not bode well for the future and sadly the current state of affairs is not surprising.
69.[The mother’s] views appear quite fixated and she has demonstrated a lack of insight in acknowledging, let alone accepting, that her behaviours whilst spending time with [the child] are the reason her daughter is resistant to spending time with her mother. [The mother] appears to have exonerated herself of all wrongdoing and if one has done nothing wrong then there is no logical reason to change. This would appear to explain the impasse as both parents’ polarised positions remain fixated. As is often the case with children who grow up in an environment of high conflict, ongoing litigation and parents who are unable to prioritise the needs of their children above their own desire to perpetuate the conflict, children will often draw the line themselves as they attempt to ameliorate the family conflict.
…
71.At paragraph 7 (b) it is noted, “What impact there would be upon the child of the court making an order that she lives in a shared care arrangement between her parents”. In this Family Consultant’s opinion, such an arrangement would unlikely improve the conflict between the parties and possibly result in further interpersonal struggles, heightened anxiety, a possible escalation of self-harming behaviour, a deterioration in academic progress and at an extreme level [the child] absconding from the care of her mother and/or father. Based upon this assessment, put simply, [the mother] unequivocally blames [the father] for the breakdown of her relationship with [the child] and she appears committed to the cause of convincing [the child] that she is without blame. This has resulted in an environment whereby, by her own account, [the child] is continually bombarded with requests to live with her mother and to spend more time with her mother. If [the child] were to live in a shared-care arrangement the opportunity for the very behaviours [the child] says causes her distress would probably continue and be emotionally overwhelming for [the child] to endure.
72.An equal shared care arrangement typically requires a few core ingredients to be successful from the perspective of children. Parents require a high level of cooperation, a high level of communication, preparedness to cooperate regarding their child’s affairs, each needs to support a shared-care arrangement and the absence of denigration. Unfortunately, it is not appear these factors are present with respect to [the father] and [the mother’s] post-separation parenting arrangement. In this Family Consultant’s opinion, [the father] and [the mother] have provided little evidence of their capacity, let alone their willingness to co-parent their daughter [the child]. As they have demonstrated little capacity to cooperate, it would appear unrealistic to put [the child] in a position whereby she lived with both parents who simply are unable to get along with one another, cooperate, communicate or share virtually anything regarding her.
73.In this Family Consultant’s opinion, given [the child’s] demonstrated level of maturity, insight, a breakdown of previous parenting orders and contravention applications, it does not appear viable to make further orders compelling [the child] to spend regular time with her mother. If orders were made that [the child] live in a shared care arrangement between her parents, she may comply with such, but her compliance would most likely be short-lived. Whilst living with her mother once the emotional burden of the relentless questioning, continually retelling of past events and attempting to convince her to spend even more time with her mother all become too much, it would not be unrealistic for [the child] to potentially suffer an emotional breakdown.
74.[The child] has already been questioned and rebuked by her mother for speaking with professionals and during discussions with this Family Consultant on this occasion, [the child] understood that speaking her mind further may result in the struggles with her mother exacerbating. However, she expressed a level of frustration in her mother not accepting that she wants to remain living with her father. If the court were to make orders that [the child] lived in a shared care arrangement between her parents such would likely send the very clear message to [the child] that her views hold little weight and those charged with the task of looking after her welfare have not listened. As adolescents develop their understanding of acknowledgement of authority figures within society continue to develop and if orders are made contrary to [the child’s] expressed views there is every possibility she may be reluctant to speak up again.
75.Whilst there are copious documents and multiple files in this matter, this assessment considered only the relevant current material as the other documentation is historical. The issue in dispute between the parties, notwithstanding the peripheral information, is confined to the question of [the mother’s] time with [the child]. In this Family Consultant’s opinion, whilst the history between the parties has shaped the present, [the child] is of an age that her expressed views and maturity should shape the future of her relationship with her mother.
76.A more constructive lens to look through for the future would be for [the mother] to quite simply cease from continually asking [the child] to live with her, denigrating her father and bringing up past issues of contention. [The mother’s] challenge for the future will be her willingness to curtail her behaviours, confine her personal opinions and accept that [the child] does not want to live with her and make a concerted effort to improve her relationship with [the child] by finally putting to rest the past. If she is prepared to do so there is every likelihood her relationship with [the child] will continue into the future, especially as she matures is into a young adult. In the event [the mother] is not prepared to accept professional advice and guidance and makes no change then it is unlikely her relationship with [the child] will flourish.
In oral evidence the Family Consultant reiterated that if specific times were ordered the child would probably comply, as that was her nature, but he said it is likely to break down as it has in the past and the child would struggle with the defined term. He opined that the child was near the end of her tether, that she had been involved in litigation time and time again, she had seen the professionals time and time again, and that she had been spoken to firmly by her mother as to what she said to the court appointed expert.
The Family Consultant said that from his observations of the history of the matter the father had facilitated the return for contact and had not stepped in to stop it.
The Family Consultant said the mother would need to accept the wishes of the child to live with the father and to stop going over past events and requesting that the child lives with her. When questioned he said that an order restraining the mother from discussing previous proceedings and requesting that the child live with her would be of great assistance to the child particularly if it was explained to her.
Clearly because of the nature of the relationship between the parties they cannot communicate and have not been able to communicate for many years.
The Family Consultant observed the history of intense conflict and suggested the Court may need to take that into account.
In paragraphs 65, 66 & 67 of his report (set out above) the Family Consultant made it clear that the child’s views were hers and they were clearly thought through and clearly articulated. The Family Consultant was concerned as to the impact of the years of conflict on this child. This was to be seen in the context of the mother’s fixation and demonstrated lack of insight in accepting that her behaviours impact on the child.
The Family Consultant went on to consider the possibility of the adverse impact on the child if her views were not taken into account, including the escalation of self-harming behaviour, and deterioration of academic process
I accept the evidence of the Family Consultant.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
In terms of the primary considerations it is clear that the child has a close relationship with her father and that relationship it is continuing.
The child has a good relationship with the mother (despite the mother’s complaints) however it is marked by the mother’s behaviour with the child as set out in the Family Report, part of which I referred to above.
Section 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
The evidence of the Family Consultant was that the child was at risk of psychological harm if orders were made requiring her to spend time with the mother and/or communicate with the mother unless it is in terms which are consensual with the child. I accept that evidence and I am satisfied that the child is at unacceptable risk of emotional abuse if an order was made for her to spend time with the mother, having regard to the child’s views, age and maturity.
Section 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;
The views of the child which were provided through the evidence of the father and the Family Consultant were strongly expressed. The child made it clear that “she wanted to remain living with her father in the long-term and ideally proposed spending time with her mother as negotiated directly between herself and her mother in the absence of any formally scheduled time together”.[1]
[1] At paragraph 51 of the Family Report dated the 17 July 2013.
The child was over 14 years of age at the time of hearing. When she saw the Family Consultant he observed that the child “presented as a relatively mature young person, articulate and clearly conveyed her views in some detail.”[2] I accept that they are the child’s genuine views, that is, that she does not want orders in place.
[2] Ibid at paragraph 37.
The views of this child were given significant weight.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The evidence of the Family Consultant and the father is that the child and the father have a close and effective relationship. The only significant complaint about that relationship is the assertion by the mother that the father does not support the relationship between the child and the mother. I repeat what I said elsewhere in these Reasons about the nature of the relationship between the child and the parties earlier. It is clear that the mother has little or limited insight as to the impact of her behaviour on the child.
The mother’s approach to the child living with her and spending more and more time with her is reflected in the text which is Exhibit M2 where the mother had arranged, after a long absence of overnight time, overnight time. Her immediate step was to request more time. This has to be seen in the context of the child’s complaints about the second of the two visits referred to in the Family Consultant’s reports. The first visit went well, the second visit went badly when the mother returned to discussing the past and constantly requesting of the child to spend more time with her.
One of the problems in the mother’s approach to her relationship with the child was identified by the Family Consultant when he observed at paragraph 76 of his report:-
In the event [the mother] is not prepared to accept professional advice and guidance and makes no change then it is unlikely her relationship with [the child] will flourish.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent including the father’s views as to the mother’s involvement with the child
If the child were forced to spend time with the mother or communicate with the mother, I accept the evidence of the Family Consultant that it would have significant adverse impacts on the child’s mental health.
The evidence of the Family Consultant is that the father will not obstruct the continuation of the relationship between the child and the mother. I accept that evidence as it matches my analysis of the circumstances. The father is likely to adopt a sensible approach to enable and facilitate a continuing relationship between the child and the mother as he has in the past, including the recent past. The father is not enamoured with the mother, but based upon his previous behaviour I am satisfied that he will not unreasonably restrict the child’s time with the mother.
Given the history of the mother’s approach to the father and his relationship with the child, (having generally accepted the evidence of the father and the Family Consultant in this respect and not having not accepted the mother’s evidence in this respect), I am not satisfied that she is willing or able to facilitate and encourage the father and daughter relationship.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The change proposed by the mother is likely to have a significant detrimental effect on the emotional wellbeing of the child, as identified by the Family Consultant.
The change to the voluntary arrangement proposed by the father and requested by the child is most likely to improve the relationship between the child and her mother.
Section 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;
There is no practical difficulty or expense with the child seeing or spending time with the mother.
Section 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;
I am satisfied that the father is capable of caring for the child and has done so for many years. Whilst not without some level of criticism the child seems to be developing appropriately and I note and accept the comments made by the Family Consultant.
The mother is able to physically care for the child but given the comments I have made elsewhere she does not have the insight or understanding to meet the emotional needs of the child.
Section 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;
I have accepted the evidence of the Family Consultant that this child is a mature young person approaching her 15th birthday. She presented to the Family Consultant as a relatively mature and articulate person who clearly conveyed her detailed views.
The child has clearly and unambiguously expressed her mature and considered views, which I am satisfied, are hers and not an echo of those of her father. I have had significant regard to her age and maturity.
Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has demonstrated a strong attitude to the responsibilities of parenthood in terms of the care of the child, including the child’s relationship with her mother.
The mother has persisted with pointless parenting litigation over most of the child’s life with little or no insight into the profoundly negative impact that has on the child’s life in particular her childhood. The litigation has to all intents and purposes been an endeavour to vindicate the mother’s perceived loss of ‘custody’ when the child was three. Whilst the father is not without blame I note and adopt the assessment of the Family Consultant when he said:-
69.[The mother’s] views appear quite fixated and she has demonstrated a lack of insight in acknowledging, let alone accepting, that her behaviours whilst spending time with [the child] are the reason her daughter is resistant to spending time with her mother. [The mother] appears to have exonerated herself of all wrongdoing and if one has done nothing wrong then there is no logical reason to change. This would appear to explain the impasse as both parents’ polarised positions remain fixated. As is often the case with children who grow up in an environment of high conflict, ongoing litigation and parents who are unable to prioritise the needs of their children above their own desire to perpetuate the conflict, children will often draw the line themselves as they attempt to ameliorate the family conflict.
The mother’s approach including her applications in these proceedings show a poor attitude to the child, and to the responsibilities of parenthood.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family; and
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There was some allegations of family violence at the time of breakdown of the marriage. That has been dealt with years ago in previous court hearings.
There is no evidence before the Court which indicates there is violence which the Court needs to have regard to. The child has been in the care of the father for about eleven years.
There was no evidence of relevant family violence orders.
Section 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; and
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
This is a matter where if orders are made it would, on the submissions of the Independent Children’s Lawyer, invariably lead to further litigation. The litigation has not stopped. The effect of orders has not resolved the conflict between the parties, nor relieved the child from the burden of her parent’s ongoing fighting. I accept that submission, to make time and communication orders in the context of this family in these circumstances, particularly having regard to the child’s views, would simply invite a continuation of the proceedings. It is also likely to expose the child to further emotional hardship.
I have had regard to all of the relevant evidence and relevant factors in consideration of these applications.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
In summary, this has been a sad case where the child has endured conflict through the whole of her conscious life to date. The Family Consultant says, and I accept, that the child is at the end of her tether and her psychological health is at risk.
What is deeply troubling is the mother’s inability to see her behaviour in promoting these and other proceedings and the consequent detrimental impact on the child. During the course of hearing the mother could not contain herself in terms of comments, expressions and anger shown towards the father and, when making submissions, the Independent Children’s Lawyer.
I raised my concerns about the mother’s behaviour with her counsel on a number of occasions and even this intervention could not contain the mother. I again raised the question of her behaviour with her counsel during submissions, as if she could not contain herself in a court, then how could the Court expect her to contain her behaviour in terms of the times the child spends with her. It would be almost impossible for the mother to contain herself.
The Independent Children’s Lawyer submitted, and I accept, that the child still has a good relationship with the mother in spite of the mother’s complaints about the father (to which I have alluded to earlier).
If no orders are made forcing the child to spend time or communicate with the mother it is likely that the relationship may survive and if the mother takes the steps suggested by the Family Consultant the relationship may even flourish. I accept this.
Given the evidence of the father that it is important for the child to know her mother, and given that the child will have responsibility for that herself and has shown a desire to do so from time to time, I am satisfied that the child will of her own volition spend time and communicate with the mother, at the levels that meet the child’s needs having regard to her age and her maturity.
The mother submits that there ought to be a ‘leap of faith’ in the hope of restoring a relationship. That leap of faith which the mother proposes is likely to put the child at enormous risk of psychological harm (according to the evidence of the Family Consultant) and I do not accept that submission. It is high risk and has a low probability of success.
The mother accepts that the regime of orders continue which would, given the history, be likely lead to further litigation.
As such, on the evidence before me having considered the relevant factors under s 60CC I am satisfied that there ought not to be any change in the residence of the child and that she should continue to live with the father. That would be in the best interest of the child.
Having regard to the factors considered in these Reasons I am satisfied that the child ought not to be required to spend time or communicate with the mother. It should be, as suggested by the Family Consultant, and recommended by the Independent Children’s Lawyer, that is, at times suited to the child.
The Family Consultant said that an order restraining the mother from discussing these proceedings and making constant requests to the child that the child live with her, particularly in circumstances where the child was informed of these orders, would enable the child to accept that weight had been given to her views and such an approach would be of benefit to the child. I intend to adopt that approach.
I also intend to make orders restraining the parties from abusing, demeaning or belittling the other and in terms of the father, to encourage the relationship and in terms of the mother not to discuss those matters which have caused the child so much distress.
So that the child can understand that her views have been heard, which is important according to the evidence of the Family Consultant, I had directed that the Independent Children’s Lawyer inform the child in person of the orders.
I will also be making orders that the parents keep each other informed as to their addresses and telephone numbers. In addition the mother will be entitled to information about the child’s health, welfare, development and education.
I did not make an order giving the mother an opportunity to attend at the child’s school whenever she wants. This should be again part of the arrangements she enters into with the child at times when the child wants her at school rather than times which the mother wants to be at school.
Parental responsibility
In terms of parental responsibility, having regard to the facts and findings set out above, it would not be in the child’s best interests for there to be an order for equal shared parental responsibility. That would provide that parental responsibility could not operate in any meaningful way and, in the circumstances would lead to these parties coming back to court, in respect of any decision that ought to be made.
That will of course not apply to issues such as name change, relocation or overseas travel.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 October 2013
Associate :
Date : 11 October 2013
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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Costs
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