Ray and Manning - [2012] FMCAfam 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAY & MANNING

[2012] FMCAfam 5

FAMILY LAW – Parenting – interim dispute – children aged 14 and 11 years – long history of proceedings before the court – high degree of parental conflict to which the children are being exposed – children have refused to spend time with their father since April 2011 – ordered that the parties and children attend a mediation to determine the time the children are to spend with the husband pending the final hearing of the matter in July 2012.

Family Law Act 1975, ss.60CA, 60CC, 65DAA

Goode & Goode (2006) FLC 93-286

Applicant:

MR RAY

Respondent:

MS MANNING

File Number:

MLC 4411 of 2009

Judgment of:

Bender FM

Hearing date:

1 December 2011

Date of Last Submission:

1 December 2011

Delivered at:

Melbourne

Delivered on:

20 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr Sweeney

Solicitors for the Applicant:

Portelli & Co

Counsel for the Respondent:

Mr Robinson

Solicitors for the Respondent:

Taussig Cherrie Fildes

Counsel for the Independent Children’s Lawyer:

Mr Hannan

Solicitors for the Independent Children’s Lawyer:

Schetzer Constantinou

ORDERS

Until further order, orders 4, 5, 6, 7, 8, 18, 19 and 20 of the orders made on 3 December 2010 be suspended.
Until further order, the parties’ children [X] born [in] 1997 (“[X]”) and [Y] born [in] 2000 (“[Y]”) spend time with the husband as agreed between [X], [Y] and the parties.
For the purposes of order 2 herein, the parties, [X] and [Y] attend upon a registered Family Dispute Resolution Practitioner (“the FDR Practitioner”) as nominated by the Independent Children’s Lawyer, at the joint expense of the parties, and continue to attend the FDR Practitioner as directed by the FDR Practitioner for the purposes of mediation to determine the time [X] and [Y] will spend with the husband.
Within 14 days, the Independent Children’s Lawyer is requested to meet with [X] and [Y] to explain these orders, the basis for the court’s interim determination and the court’s expectation that the mediation referred to in order 3 herein is to result in an outcome whereby they spend regular time with their father pending the final hearing in July 2012.
The parties, [X] and [Y] shall authorise the FDR Practitioner they attend pursuant to order 3 herein to advise the Independent Children’s Lawyer of the outcome of the mediation.
The wife is restrained from taking either of [X] and/or [Y] for counselling with Ms G.

THE COURT NOTES THAT:

A.It is the court’s expectation that [X] and [Y] will spend regular time with the husband between the date of these orders and the final hearing of this matter, and that the purposes of the mediation is to determine the frequency and manner of such regular time.
B.It is the court’s expectation that the parties, [X] and [Y] will abide with any agreed mediated outcome in respect to the time [X] and [Y] will spend with the husband.
C.The matter shall remain listed for final hearing on 25 July 2012 and the orders for trial preparation made on 6 October 2011 shall remain in full force and effect.
D.In the event the question of whether Australian Passports should issue for [X] and [Y] remains live between the parties, it shall be determined by the court at the final hearing on 25 July 2012.

IT IS NOTED that publication of this judgment under the pseudonym Ray & Manning is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 4411 of 2009

MR RAY

Applicant

And

MS MANNING

Respondent

REASONS FOR JUDGMENT

Introduction & Background

This is the husband’s Application for interim parenting orders relating to the parties’ daughters [X] born [in] 1997 (“[X]”) and [Y] born [in] 2000 (“[Y]”).
By way of background, this Application for interim parenting orders was heard at the conclusion of a two day defended hearing of the husband’s Contravention Application on 30 November 2011 and 1 December 2011.
In paragraphs 2 to 12 of my judgment in relation to the Contravention Application, I gave a brief summary of the lengthy history of this matter and will, for the sake of completeness, repeat it for the purposes of this judgment:
2.Briefly, the parties commenced cohabitation in 1996. They married in 1999 and separated in October 2003. Litigation commenced for the first time in this court in April 2004 and the parties have been in heated disagreement since then.
3.Orders were put in place in June 2004 that provided a regime whereby [X] and [Y] lived with their mother and spent four nights a fortnight with their father. That arrangement proceeded relatively satisfactorily until October 2005 when there was an altercation between the parents, the circumstances of which are still in heated dispute between the parties, but arising from which relationships became extremely strained.
4.In December 2005, again depending on whose version you accept, the children were either overheld or remained with their father for a period of four days around the Christmas period, as a result of which a Recovery Order was sought and obtained by the wife. After that Recovery Order was executed, the children stopped seeing the husband.
5.The parties engaged in intensive therapy, primarily with

Mr P, and, over time, the girls’ relationship with their father got back on track so that by 2008 the girls returned to a regime of spending four nights a fortnight with their father.
6.The parties continued seeing Mr P. However, because of their inability to agree as to what his recommendations actually meant, Mr P ultimately advised the parties he could no longer assist them. Mr P made some fairly compelling observations as to the reality that he believed any capacity for cooperative parenting as between these parties was unlikely, and that the best they would ever be able to achieve would be parallel parenting.
7.In May 2009 the husband issued an Application in which he sought orders that made provision for [X] and [Y] to spend five nights a fortnight with him. In my judgment delivered in November 2010 I noted that this was something the husband had been seeking for some time.
8.The matter came before me on an interim basis in October 2009 and orders were made that put in place arrangements whereby [X] and [Y] spent time with their father from Friday to Monday morning each alternate week and each alternate Thursday overnight.
9.The matter came back before me for final hearing in March 2010. After lengthy negotiations, it looked like the matter would resolve by consent. Those negotiations became unstuck and the matter was again listed before me for final hearing in November 2010, at which time I had the benefit of two Family Reports from Ms D.
10.In November 2010, many of the issues between the parties were resolved by consent but there were matters where the parties were apart. It was agreed that the matter would proceed by way of submissions and, if I deemed it necessary, by way of whatever evidence that would be of assistance to me. On that occasion at the conclusion of submissions I indicated that I would be assisted by evidence from Ms D and such evidence was given. At the conclusion of Ms D’s evidence I delivered reasons for judgment and settled what I thought were the final orders in relation to the arrangements for [X] and [Y].
11.However, shortly thereafter I was contacted by the parties’ representatives to be advised that, despite what I thought were clear orders, the parties were not able to agree as to what the arrangements were to be for the 2010/2011 school holidays. I listed that matter before me on

3 December 2010. After hearing submissions from the parties specifically as to what the arrangements were to be for those holidays and the various demands each had on the other, I made very clear orders as to what the arrangements were for be for 2010/2011 school holidays.
12.To ensure that there was not more than one set of orders in relation to the arrangements for [X] and [Y], I discharged all previous parenting orders and issued a set of final orders on that day, setting out what has proved to be, sadly, not the final arrangements for them.
The husband’s Contravention Application primarily related to him not having spent any time with [X] and [Y] since 13 April 2011.
Most relevantly to this Application, in relation to the breach of the orders whereby [X] and [Y] have not spent time with the husband since 13 April 2011, I found that there was a reasonable excuse for that contravention of the orders by the wife.
The circumstances leading to the breakdown of the relationship between the husband and [X] and [Y] were canvassed in the Contravention judgment. I will briefly summarise those circumstances for the purposes of this judgment.
In April 2011, [X] and [Y] were spending time with the husband for one week in the first term school holidays.
[Date omitted] is the birthday of [X] and [Y]’s stepfather, Mr M. There was an exchange of emails between the husband and wife in relation to [X] and [Y] returning to the wife’s care on the evening of 13 April to allow them to celebrate that birthday.
The husband was not opposed to [X] and [Y] spending the night with their mother and stepfather for the birthday celebrations. The parties agreed [X] and [Y] would be collected at 5.00 pm on 13 April 2011 but were unable to agree on the time [X] and [Y] were to return to the husband the following day. Accordingly, the husband formed the view that there was no agreement in place for [X] and [Y] to attend their stepfather’s birthday, whilst the wife formed the view there was agreement for [X] and [Y] to celebrate their stepfather’s birthday, and that the parties just needed to settle the time of the children’s return.
It was apparent from the parties’ evidence that [X] and [Y] also understood their father to have agreed to them attending their stepfather’s birthday celebrations.
At about 3.00 pm on 13 April 2011, Mr M collected [X] and [Y] from the home of a friend where they were staying whilst the husband was working. After collecting them, Mr M sent the husband a text message advising him of his collection of [X] and [Y].
Upon receipt of this message the husband telephoned the Police to report [X] and [Y] being taken. The Police in turn rang Mr M, spoke to him and then spoke to [X] and [Y] who assured the Police they had not been “kidnapped” (their word) and understood they were with their stepfather with their father’s consent.
Subsequent to the call from the Police, [X] sent her father an email in which she challenged him about his behaviour and advised she was not willing to return to his home the next day.
What then unfolded is set out in paragraphs 67 to 74 of the Contravention judgment:
67.On 16 April 2011 Mr M drove [X] to her father’s home in order for [X] to pick up some personal belongings that she had left there. Whilst [X] was inside packing up her belongings the husband came out of the home where he confronted Mr M and thereafter ensued a violent fight.
68.Shortly after the assault, [X] came out of the house to find her stepfather bleeding, with burst blood vessels in his eyes, and with cuts and bruises and other injuries as a result of the altercation between her father and himself.
69.The husband’s evidence is that he bore similar injuries to

Mr M, but that [X] did not seem distressed as a result of her observations of her father’s injuries.
70.[X] got into her stepfather’s car and she and her stepfather went to the Police Station. At the Police Station, her stepfather made a statement to the Police in [X]’s presence about what had occurred.
71.As a result of the altercation, the husband was charged with assault to which he pleaded guilty. The Police took out an Intervention Order on behalf of the stepfather against the husband which was granted for a 12 month period.
72.Subsequent to the assault, [X] and [Y] sent a series of emails to their father in which they raised their concerns in relation to his behaviours, and asked him what he was going to do to address what they saw as him having ongoing issues in relation to his anger. The husband responded to those emails in such a way that [X] and [Y] formed the view, at least on the basis of what they wrote, that their father was not listening to them and made it clear that in all the circumstances they were not prepared to resume spending any time with him. It was subsequent to those emails that the husband issued the Contravention Application.
73.In or around June or July 2011 there was further contact between [X] and her father whilst she was at school which caused her extreme embarrassment. After this, [X], on the evidence of the wife as a result of information provided to her by her counsellor, Ms G, sought to pursue an Intervention Order against the husband in the Children’s Court. That Application has not been finalised and has been adjourned to a time subsequent to the finalisation of matters before this court.
74.It is the wife’s evidence that because of the behaviours of the husband, and in particular his behaviours around April 2011, the girls have formed a very strong view that at this time they do not wish to spend any time with their father, and despite all her reasonable efforts to persuade them otherwise they are adamant in this refusal.

Current Applications

On 14 September 2011, the husband filed an Initiating Application in which he sought final orders that the parenting orders of

3 December 2010 be discharged, that the parties have equal shared parental responsibility for [X] and [Y], that [X] and [Y] live with him and spend time with their mother as ordered by the court.
In the interim, the husband’s Application sought that the

3 December 2010 orders be discharged, that [X] and [Y] live with him and that the question of the time they spend with their mother be reserved pending receipt of an Updated Family Report and an updated psychiatric assessment of the wife.
At the hearing of his interim Application, the husband sought orders that, on an interim basis, [X] and [Y] live with each of he and the wife on a week about basis and for the parties, [X] and [Y] to attend mediation in an endeavour to achieve a mediated agreement as between the parties and [X] and [Y] as to their final living arrangements.
The husband also sought an order that the wife be restrained from taking either of [X] or [Y] to see Ms G, their current counsellor.
The wife seeks that the 3 December 2010 orders be discharged and that the parties have equal shared parental responsibility for [X] and [Y]. She seeks that [X] and [Y] live with her and that they spend time with the husband at their request and as agreed between them and their father.
The wife also seeks orders that [X] and [Y] continue to attend upon

Ms G.
Finally, the wife seeks orders that the husband sign all documents to enable [X] and [Y] to obtain passports and that such passports be held by her.
The Independent Children’s Lawyer proposes that the court make interim orders that make no specific provision for [X]’s time with her father but that there be orders for [Y] to spend regular overnight time with her father, such time, if possible, to commence at the conclusion of [Y]’s regular sporting or extracurricular activities.

The Evidence

The parties

As this was an interim hearing, neither party gave oral evidence on the question of the interim living arrangements for [X] and [Y]. However, both parties gave extensive evidence in relation to the defended Contravention Application. The parties were advised that their evidence given in relation to the Contravention Application was relevant and would be considered in the decision making processes relating to these ongoing proceedings.
In relation to the parties’ evidence, the most striking features of their evidence was the complete lack of responsibility each of the parties took for their own behaviours and the complete lack of insight each of the parties evidenced as to the destructive impact their behaviours had and are having on their daughters.
A striking example of the husband’s lack of acceptance of responsibility for his behaviour and lack of insight was his evidence in relation to the impact on [X] of seeing her stepfather bloodied and bruised as a result of the assault on 16 April 2011.
When the husband was asked in cross-examination as to the level of upset and shock he thought [X] would have experienced, it was his response that she would not have been upset at all because when she saw him with similar injuries she did not become at all upset. He attributed any distress on [X]’s behalf to her stepfather taking her with him when he made his complaint to the Police.
At no time in his evidence did the husband accept any responsibility for his behaviour in confronting and then assaulting Mr M. Nor did he exhibit any insight into the impact the assault would have had on [X] and [Y] and their relationship with him.
The most striking example of the wife’s lack of insight and acceptance of any responsibility for her own behaviours was her evidence in relation to [X]’s current Intervention Order Application against the husband in the Children’s Court.
It was the wife’s evidence that after the husband had approached [X] at her school in June/July 2011 causing her a great deal of upset and embarrassment, [X]’s counsellor, Ms G, told [X] that she could obtain an Intervention Order against her father in the Children’s Court.
When [X] told her mother of this advice and that she wanted to make such an Application, it was the wife’s evidence that she and

Mr M drove [X] to the Children’s Court and otherwise supported her in this Application, including engaging solicitors and Counsel on her behalf.
When cross-examined as to what, if anything, she had done to dissuade [X] from this course of action and what message her actions gave [X] about the importance she placed on her having a positive relationship with her father, it was the wife’s evidence that as the Application was something [X] “really wanted to do”, she had supported her daughter. It was very apparent from the wife’s evidence that at no time did she attempt to dissuade [X] from this course of action.
As with the husband, the wife accepted no responsibility for the impact of her actions on [X], nor did she show any insight as to the impact those actions would have on [X]’s future relationship with her father or on [X] herself in the context of being a litigant in what could potentially be difficult and nasty court proceedings.

Mr L

Mr L is a psychologist. He was engaged by the parties to prepare a Family Report in relation to the future living arrangements for [X] and [Y]. His Report of 11 November 2011 was before the court by way of his affidavit sworn 29 November 2011.
Mr L also gave viva voce evidence at the interim hearing.
In his Family Report, under the heading Conclusions and Recommendations, Mr L says at paragraph 8.1:
8.1It is fairly clear to me from the face of the record that [X] and [Y] have been extensively exposed to on-going conflict between their parents, at least about arrangements for their care, throughout almost all of the post-separation period.
In paragraph 8.5 of his Report, Mr L makes the following observations in relation to the parties:
8.5Mr Ray and Ms Manning unsurprisingly remain convinced that their previous accounts of why they have not ended their conflict remain true:
8.5.1Mr Ray claims that Ms Manning has actively tried to alienate [X] and [Y] from him throughout the entire post-separation period. He cites as examples the frequent recourses he has had to have to the Court to settle parenting arrangements that allow him to be actively involved in his daughters’ day to day care, welfare and development;
8.5.2Ms Manning claims that Mr Ray had and still has an explosive temper and exhibits controlling behaviour, the girls’ exposure to which has made them decreasingly willing to spend time with him. She says she is simply supporting and protecting them in accepting their choice.

Mr L then identified what in his opinion was most important for [X] and [Y]. At paragraph 8.8 of his Report, Mr L states:
8.8In my opinion, the overwhelming imperative at present is to prevent the further exposure of [X] and [Y] to parental conflict and I recommend that to the Court that a parenting regime that is likely to achieve this should be adopted.
In paragraph 8.9 of his Report, Mr L sets out what he termed the “3 sets of parenting arrangements” that he thought might best prevent [X] and [Y]’s ongoing exposure to parental conflict. They can be summarised as follows:
1.[X] and [Y] live with their mother and spend time with their father in accordance with their wishes.
2.[X] and [Y] live with their father, initially have no contact with their mother as they adjust to this new circumstance and thereafter there be a gradual reintroduction to spending time with their mother.
3.[X] and [Y] live week about with each of their parents.
In his Report, Mr L did not recommend either of his proposals one or two. In relation to his first proposal, he stated in paragraph 8.9.2:
“[X] and [Y]’s difficulties directly reflect their alignment with their mother, and not a fear of their father nor any proportionate reaction to perceived or actual problems in their relationship with him. Like any other relationship problem, collusion with any anxiety about it and the avoidance of the problematic situation will only entrench the difficulty, make treatment that much more complicated, and increase the likelihood of future, long term problems. While it may reduce exposure to explicit conflict, it may also exacerbate unresolved internal conflicts in [X] and [Y].”
In relation to his second proposal, Mr L stated in paragraph 8.9.4 of his Report:
“it completely countermands the girls’ wishes when both are of an age where substantial attention should be given to their growing autonomy. In effect, it would ‘punish’ them as a substitute for addressing directly the dysfunctional behaviour of their parents.”
In his Report, Mr L on balance recommended his third proposal. In paragraph 8.9.7 of his Report, Mr L sets out his reasons for this recommendation as follows:
·it does not abandon hope that there is still a possible functional resolution of this matter if both parents exercise some goodwill nor admit that the contumacious behaviour of one or other or both parents has now produced an intractably bad outcome for their daughters;
·it sends an unambiguously strong message to both parents and, more importantly, to [X] and [Y] as well that they do not have to choose a relationship with one parent over one with the other;
·it will enable [X] and [Y] to further their relationships with each parent with minimum (but not no) possibility of exposure to conflict.
In paragraph 8.10 of his Report, Mr L canvassed the possibility of putting in place arrangements for [Y] only to spend time with her father. He was unequivocal in not recommending such an arrangement.
Mr L was equally adamant in his oral evidence that it was his recommendation the court not make orders for [Y] alone to spend time with her father. It was his evidence that [Y] was very very clear when speaking to him that she did not want to be made to do that which her sister wasn’t required to do.
It was Mr L’s evidence that to make orders that required only [Y] to spend time with her father would:
“put her in an invidious emotional situation”
and that such orders would:
“make [Y] suffer for the whole family’s dysfunction.”
When specifically cross-examined on whether orders should be made that provided for [Y] alone to spend time with her father,

Mr L’s evidence was:
“I think making [Y] go against her wishes - and it is that - when her sister doesn’t go, focuses eight years of conflict on her, and I think in all sorts of ways, and I think that would be even more detrimental to her.”
In his Report at paragraph 8.13, Mr L considered that ongoing therapeutic assistance for [X] and [Y] would be of assistance to them and that the parents should give the court a joint undertaking to make this help available to their daughters.
In contrast to his Report, Mr L in his oral evidence was of the view that therapeutic counselling for [X] and [Y] was not something he recommended. When asked whether professional assistance was needed for [X] and [Y], it was his evidence as follows:
“I don’t think there’s a lot of point. I don’t think the girls exhibit psychopathology. I think they – what they exhibit is a healthy reaction to - with respect to both of your clients - to bad parental behaviour.”
When cross-examined in relation to the recommendations contained in his Report, and in particular his preferred option of a week about arrangement, it was Mr L’s evidence that:
“It’s (sic option 3) as bad as the others.”
In his viva voce evidence, Mr L posited a fourth possible way forward in relation to [X] and [Y]’s living arrangements. It was his evidence that if the court accepted [X] and [Y] had sufficiently developed autonomy to be able to make choices about whether to see their parents or not, they then have sufficient autonomy to be involved in negotiations and mediations about that decision.
It was therefore Mr L’s proposal that the parties, [X] and [Y] participate in a bona fide mediation process. He proposed that the court make it clear to [X] and [Y] that it expected them to spend time with their father and that the mediation was to put in place mutually agreed arrangements for this to occur. It was to be explained to [X] and [Y] that the court expected them to engage in the mediation process and that they and their parents would be bound by the agreement reached in that mediation.
In concluding his oral evidence, Mr L made the following sad and telling observations:
“I think the damage, in many ways, is already done, that these girls are adopting these absolute, as I call them, disproportionate, black and white solutions to problems, you know, that don’t really admit, are those sort of solutions, but that’s what they’ve been taught, over time, is the way that you deal with these things. That’s my problem. So I think, in some ways, the damage is already done. I know Mr Ray believes it can be – what he sees as the damage, can be undone. I don’t know that I share that view.”

Best interests of the child

When considering what orders should be made in relation to children, whether on an interim or final basis, those orders must reflect section 60ca of the Family Law Act 1975 (“the Act”) which provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In the matter of Goode & Goode (2006) FLC 93-286, the Full Court held that when determining parenting orders on an interim basis, the court must consider all the relevant factors as are set out under the Act to determine what orders will be in the children’s best interests.
The current orders provide for the parties to have equal shared parental responsibility for [X] and [Y]. Neither party seeks to have this order varied and both their proposals are for equal shared parental responsibility to continue into the future. At this time, the current order for equal shared parental responsibility will remain in place.
Where there is an order for equal shared parental responsibility, section 65daa of the Act requires the court to consider whether the children spending equal or substantial and significant time with each parent is practical and is in their best interests.
The husband’s proposal, on an interim basis, is that [X] and [Y] live equally with both of their parents. The wife’s proposal is for [X] and [Y] to live with her and spend time with the husband in accordance with their wishes. As both [X] and [Y] currently express very strong wishes to spend no time with their father, the wife’s proposal effectively means that [X] and [Y], at this time at least, would not see their father.
When determining what is in the children’s best interests, the court must consider the relevant matters set out at sections 60cc (2) and (3) of the Act.
Section 60cc(2) of the Act sets out the primary considerations that the court must consider.

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

[X] and [Y], and [X] in particular, were observed by Mr L to now be completely aligned with their mother and for the relationship with their father to have broken down completely.
[X] was adamant she did not currently wish to spend time with her father and refused to see him as part of the Report preparation process.
[Y] was observed by Mr L to be more open to a relationship with her father. [Y] spent time with her father and his now wife during the Report interviews, and Mr L noted their interactions to be “happy and comfortable”.
However, [Y] was quite clear that she did not wish to spend overnight time with her father or to be required to attend regularly, especially absent [X].
In paragraph 8.4 of his Report, Mr L noted:
8.4The exclusive alignments that [X] and [Y] now seem to have formed with their mother, Ms Manning are, of course, quite dissonant with the good and developmentally significant relationships with their father that they have described historically and that others have observed in the past.
In his oral evidence to the court, Mr L was of the view that [X] and [Y]’s rigid opposition to a relationship with their father was disproportionate to their stated issues and complaints of his behaviours when in his care.
Whilst it was Mr L’s view that [X] and [Y]’s exposure to the recent difficulties was “disproportionate”, he made the observation however that given their exposure to years of parental conflict and ongoing issues with the husband’s behaviours over many years, the most recent behaviours of the husband could be seen as:
“the straw that broke the camel’s back type of phenomenon”
such that [X] and [Y] had decided that they no longer wished to spend time with the husband.

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

Mr L observed both parents as being able to provide proper physical and emotional care of [X] and [Y] but, as noted earlier in this judgment, the consistent exposure of [X] and [Y] by their parents to their unremitting adult conflict over the last eight years has caused them, in all probability, irreparable psychological damage.
Mr L observed that the parties’ continuous and ongoing litigation has taught [X] and [Y] that:
“the way you resolve relationship conflict is by one party winning or losing, getting their own way in the matter.”
In resorting to litigation herself in seeking an Intervention Order against her father in the Children’s Court, [X] is following the behaviours taught to her by her parents in that the way to resolve relationship conflict, in her case as between herself and her father, is to pursue an outcome where she can “win” the resolution she seeks.
In this matter, where neither parent concedes in any way that it is their behaviours which are damaging their children, the long term emotional outcomes for [X] and [Y] must be viewed with real concern by this court.
Section 60cc(3) of the Act sets out the additional considerations that the court must look at in determining the children’s best interests.

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

[X]’s views are clear and unequivocal. At this time, she does not want to spend any time with her father.
In paragraph 6.1 of his Report, Mr L described [X] and her views as follows:
6.1[X] is an easily engaged and articulate young woman who, from the beginning of our discussion, gave a clear impression that she had adopted a considered ‘position’[1] about her living arrangements and her interactions with her parents about which she was not prepared to be flexible. She
‘just want[s] to stay with Mum… I’m happier there… I’d rather not see him… I’ve been saying that for a long time’.
[1] Her word.
She said that her main reason for this was
‘his anger… it scares me and irritates me’.
When Mr L attempted to explore these matters further with [X], he reports that [X] became more critical of her father. When he suggested to [X] that many teenagers experienced conflict with their parents as they become more independent and that her response to totally shutting out her father seemed an extreme response to the problems she was identifying, he reports her response as being:
“Look… I’ve had enough… I just want him to leave us alone… he’s been invading my school… I can’t get away from this.”
[X] refused to see her father when interviewed for the Family Report.
As set out previously in this judgment, [Y] was prepared to see her father and his wife Ms R when interviewed for the Report and was seen to be happy and comfortable in her interactions with them.
Since April 2011, [Y] has also seen the paternal family at her [sport omitted] games as they have regularly attended those games.
[Y] was prepared to contemplate seeing her father. Mr L described her as “bartering” with him when faced with the possibility the court may order her to spend time with her father, even if she didn’t want to. He reports the following in paragraph 7.4 of his Report:
“She began a form of ‘bartering’ that, in my view, reflected how emotionally conflicted she is:
‘I could still see him… maybe for his birthday… I’m just not ready to stay.’
I asked why not:
‘He gets angry… I ran away from him before.’”
Given [X] and [Y]’s ages, the strength of the views held by them and the long history of court and therapeutic interventions to which they have been subjected as a result of their parents’ conflicted, dysfunctional behaviours, the court must give considerable weight to the views being expressed by them.

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 nature of [X] and [Y]’s current relationships with each of their parents has already been well documented in this judgment. They are strongly aligned with their mother and are currently estranged from their father, though the latter has not been the state of that relationship in the three years prior to April 2011.
[X] and [Y] have a good relationship with their stepfather Mr M. It would also appear that until April 2011, they had a good relationship with their stepmother Ms R.
The husband filed an affidavit from his father in which the paternal grandfather deposed to a very good relationship with his granddaughters. His distress at the current loss of this relationship was very sad to read.

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

In considering this factor, the court must also take into account

sub-sections 60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)    spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The husband genuinely believes that the wife has and is actively seeking to alienate [X] and [Y] from him and that this has caused the breakdown of his relationship with his daughters.
The husband told Mr L that the arrangements for [X] and [Y] to spend time with him:
“haven’t worked… that’s true… but it’s because of the actions of one party.”
The husband advised Mr L that he believes:
“Ms Manning has Narcissistic Personality Disorder and Parental Alienation Syndrome… there’ve been over 40 different contraventions of Orders and she’s been over-holding the kids all through 2011… she just doesn’t think she has to comply.”
The husband believes that the girls’ current stated wishes not to spend time with him should not be given any weight as they are not truly their wishes but are a reflection of their mother’s actions in undermining his relationship with them.
The husband rejected any suggestion that his own behaviours could have contributed to any degree in [X] and [Y]’s current alignment with their mother and the breakdown of their relationship with him.
The wife asserts that she is supportive of [X] and [Y] having a relationship with their father but his ongoing explosive temper, controlling behaviour and failure to listen to them has resulted in them being increasingly unwilling to spend time with him. It is the wife’s position that she is now respecting and supporting the choice [X] and [Y] have made.
It was the wife’s evidence that since April 2011 she has made multiple suggestions and proposals to [Y] in particular as to her spending time with her father, including suggestions of a meal after [sport omitted], or a dinner after school and that [Y] has adamantly refused all such proposals.
In paragraph 8.7.2 of his Report, Mr L made the following observations in relation to the wife:
“my interview with Ms Manning revealed a marked dichotomy between what she told me were her views and intentions and what I have understood to be the actual course of this protracted conflict. The language of collaboration and flexible parenting she used from time to time in our discussion, while not entirely disingenuous, certainly lacked salience in context. She was irritated and perplexed when I adopted a challenging attitude at interview to her assertions about the value she said she saw in the children having a relationship with their father. She believes that the many professionals who have tried to provide the Court with information to resolve parenting issues over the years have not ‘seen through’ Mr Ray’s veneer to his true nature and behaviour, but does not see the implicit contradiction between this and her stated wishes about the value of contact with him. She will, no doubt, find my analysis equally lacking in penetration. Like
Mr Ray, she sees their conflict as having its source and sustenance almost exclusively in the other party.”
In his oral evidence, Mr L discussed the alignment that [X] and [Y] have with the wife as being the result of what he described as “The Perfect Storm”. He explained that what he meant by this is the husband’s behaviours over time and the wife’s ongoing exposure of [X] and [Y] to her views of the husband have combined to result in the complete breakdown of their relationship with their father.
When cross-examined by Counsel for the wife as to the “reasonableness” of [X] and [Y]’s decision to not spend time with the husband given the history of the husband’s alleged behaviours,
Mr L’s evidence was:
“I really don’t want to be drawn into the situation of saying we’ve got a good parent and a bad parent because, as I said to you earlier – I’m prepared to say both are bad… For every allegation from [X] or others that her father has done something wrong, I can find something in another expert’s report showing the children have been exposed to adult issues in a way that’s likely to prejudice them. So I really don’t know where we go with a discussion about who is the bad parent.”

As noted earlier in this judgment, the parties’ evidence before the court confirmed all that Mr L has reported. Neither party was able to accept responsibility for or acknowledge their role in the current horrible conundrum their daughters face.
As such, neither party can be seen to be showing a willingness to genuinely facilitate or encourage [X] and [Y]’s relationship with the other.

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

[X] and [Y] have not spent time with their father since April 2011. If I were to accede to the wife’s proposal, there would be no change to their current living arrangements in the foreseeable future.
Whilst the husband initially proposed that [X] and [Y] live with him and time with their mother be suspended to enable them to adjust to such a change, his proposal at the hearing of the matter was for a shared care arrangement.
Such a proposal would be a major change in [X] and [Y]’s circumstances. They have always lived in their mother’s primary (and at times sole) care since separation.
Both [X] and [Y] are adamantly opposed to such an arrangement being put in place and they would, in all probability, refuse to comply with orders in these terms.

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

Not relevant.

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

Whilst there is no doubt that both parties can meet [X] and [Y]’s intellectual needs, this court’s concerns as to the capacity of these parties to meet the girls’ emotional needs is most apparent from this judgment.
The parties’ failure to shield [X] and [Y] from their continuous adult conflict for over eight years, their lack of any acceptance whatsoever that they are responsible for their own behaviours and their belief that it is all “the other’s fault” are such that this court holds very little hope that either party will ever truly be able to meet [X] and [Y]’s emotional needs into the future.

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

[X] will turn 15 in 2012 and [Y] will turn 12 in 2012. Mr L described both girls as mature and intelligent young women. To use Mr L’s words:
“these are not little kids anymore…they’re pretty strong, feisty women in their own way.”
Mr L noted that:
“I think both of them would – certainly, would resent and resist anything that was against their will.”
In his evidence, Mr L also referred to “the practicality” of trying to get [X] and [Y], at their respective ages and maturity, to comply with orders that they spend considerable time with their father against their strongly held wishes as being “pretty low”.
Mr L made reference to what he termed the “grandparents rule – the age when you can’t make your own kids go see their grandparents anymore”. It was Mr L’s evidence that once children are at that age, it would be most unusual, in his experience, for a court to make orders that were against their strongly held wishes.
It was for this reason Mr L put forward his proposal that [X] and [Y]’s maturity be acknowledged and they be invited to participate in and abide by an agreed mediated outcome. It was his evidence that this proposal:
“has probably got potential better than the three other things that I’ve put on paper.”

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;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I have no doubt that both parties in this matter love [X] and [Y] and genuinely want what is best for them. On many levels they have demonstrated responsible parenting by meeting [X] and [Y]’s physical and intellectual needs.
Sadly, the parties’ unrelenting conflict, their dysfunctional interpersonal relationship, their over-involvement of [X] and [Y] in adult matters and their failure to accept responsibility for their own behaviours has resulted in them failing to properly discharge their responsibilities as parents to their daughters.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

The violence between the husband and Mr M in April 2011 has been set out previously in this judgment.

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

Arising from the assault on Mr M by the husband, Mr M obtained an Intervention Order against the husband.
[X] currently has an interim Intervention Order against her father granted in the Children’s Court. The final defended hearing of her Application has been adjourned until proceedings in this court have been finalised.

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

Given the protracted history of litigation between the parties, one hesitates in having any confidence that there are any orders this court could make that would halt the litigation between these parties.
There must also be some concern about this court making orders for [X] and [Y] that are so opposite to their strongly stated views that compliance with them by either of [X] and [Y] would be unlikely. Accordingly if such orders were made, further Contravention Applications would most likely be issued.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

As noted earlier in this judgment, it is the Independent Children’s Lawyer’s proposal that orders be made for the husband to have liberty to attend [Y]’s [omitted] games and that she spend time with the husband from after such games to the following morning. In the event [Y] is not playing any sport, the Independent Children’s Lawyer proposed [Y] spend time with the husband from after school Wednesday to before school Thursday.
It is also the Independent Children’s Lawyer’s proposal that the existing orders in relation to time with the husband on Christmas and birthdays remain in place in relation to [Y].
The Independent Children’s Lawyer is of the view that ideally both [X] and [Y] should be spending time with the husband but, given [X]’s age, did not support specific orders being made for her to spend time with the husband but rather proposed that [X] be at liberty to attend with [Y] and that the wife do all things necessary to support [X] attending.
The Independent Children’s Lawyer did not support Mr L’s mediation proposal. The Independent Children’s Lawyer was of the view that it had limited possibility of achieving an outcome for [X] and [Y] because of the parties’ polarised views and their limited insight into the contribution their respective behaviours have had to the current breakdown in the relationship between [X] and [Y] and their father.
The Independent Children’s Lawyer also proposed that the court make a Recovery Order “to lie on the file” so that in the event [Y] failed to attend pursuant to the court’s orders, such order would be activated.
The Independent Children’s Lawyer supported the husband’s application that the wife be restrained from taking either of [X] and/or [Y] for further counselling with Ms G.
Finally, the Independent Children’s Lawyer submitted that in the event the Independent Children’s Lawyer’s proposals were accepted by the court, orders 2, 3, 4(g), 4(h), 4(i), 5, 6(a), 6(b), 9, 10, 11, 12, 13, 14, 15, 16 (adjusted so as to exclude [X]) and 17 of the orders made on
3 December 2010 remain in full force and effect.
Counsel for the Independent Children’s Lawyer advised the court that the Independent Children’s Lawyer had met with [X] and [Y] and they had confirmed with her their views that at this time they did not want to spend any time with their father.
It was the Independent Children’s Lawyer’s position that given [X]’s age and maturity, her express views should be respected. However, the Independent Children’s Lawyer was of the view that [Y] was more open to a relationship with her father and that orders would be needed to ensure [Y] was afforded the opportunity to have such a relationship.

Conclusion

This is an interim determination only, pending the final hearing of the matter in July 2012. Accordingly, there has not been a full testing of all the evidence.
However, somewhat unusually, the court has had the benefit of the evidence given by the parties in relation to the husband’s contested Contravention Application and the benefit of viva voce evidence from the Family Report Writer, Mr L.
There is no doubt that the parties have exposed their daughters to almost continuous conflict in the more than eight years since their separation in October 2003.
Mr L, in his Family Report of 11 November 2011, states that the overwhelming imperative at present is to prevent [X] and [Y] from further exposure to that parental conflict.
In his Report, Mr L considered orders that made no specific provision for [X] and [Y] to spend time with their father. In paragraph 8.9.2 he stated:
8.9.2I cannot recommend such an arrangement: in my opinion, [X] and [Y]’s difficulties directly reflect their alignment with their mother, and not a fear of their father nor any proportionate reaction to perceived or actual problems in their relationship with him. Like any other relationship problem, collusion with any anxiety about it and the avoidance of the problematic situation will only entrench the difficulty, make treatment that much more complicated, and increase the likelihood of future, long term problems. While it may reduce exposure to explicit conflict, it may also exacerbate unresolved internal conflicts in [X] and [Y].
In his viva voce evidence however, Mr L conceded that given [X] and [Y]’s age and maturity and their strongly held views that they did not want to spend time with their father at this time, they were unlikely to comply with orders to do so and there would be very real practical difficulties in achieving compliance with such orders.
Further, Mr L was adamant that whilst [Y] was more open to the possibility of spending some time with her father in the future, it would be detrimental to her to have any orders requiring her to do what her sister [X] was not required to do. Accordingly, he was very strong in his opposition to the proposal of the Independent Children’s Lawyer that orders be made defining only [Y]’s time with her father.
Whilst he had recommended a week about arrangement for [X] and [Y] in his Report, Mr L conceded in his oral evidence that this proposal was “as bad” as the two other proposals he canvassed in his Report, being that [X] and [Y] live with their mother and spend no time with their father or live with their father and spend no (initial) time with their mother.
It was Mr L’s suggestion that [X] and [Y] be accorded recognition of their autonomy and that they and their parents be required to commit to a formal mediation whereby they negotiated a time regime with their father that they agreed to be bound by.
[X] and [Y] should be enjoying a meaningful, positive and supported relationship with both their parents. They do not. They are now firmly aligned with their mother and their relationship with their father has completely broken down – perhaps irreparably.
This reflects [X] and [Y]’s exposure to the parental conflict and to the bad parenting of both their father and mother, neither of whom accept any responsibility for their contribution to the damage each has caused this relationship and their daughters.
The enormously difficult issue I face is what orders can I make that will be in [X] and [Y]’s best interests on an interim basis.
[X] and [Y]’s strong wishes at this time are for there to be no orders made that require them to spend time with their father. Given their ages, their maturity and the tumultuous eight years they have experienced post separation, those views must be given considerable weight.
What must also be given considerable weight is the very strong opposition of Mr L to the court making any orders that singled [Y] out as to do so would, in his view, place her in:
“an invidious emotional situation.”
Whilst the Independent Children’s Lawyer has submitted specific orders should be made in relation to [Y] spending time with the husband and a Recovery Order be made to sit on the file to assist with compliance with such an order, on an interim basis I have formed the view that it would be premature to make interim orders that prescribe specific time for [X] and [Y] to spend time with their father. I am of the view that [X] and [Y] need to believe they are being heard. At the same time however [X] and [Y] must have it made very clear to them that this court holds a very strong view that their relationship with their father is of major importance and value to them and that between now and the final hearing, the court has an expectation that they will spend regular time with their father.
To that end, the court will order that the Independent Children’s Lawyer put in place arrangements for [X] and [Y] and their parents, at the joint expense of the parties, to attend mediation to negotiate an agreed arrangement for [X] and [Y] to see their father which all four of them shall commit to. The mediation should proceed on the basis that the court has a firm view and expectation that the girls will spend regular time with the husband between now and the final hearing.
Prior to that mediation taking place, the Independent Children’s Lawyer will be asked to meet with [X] and [Y] to explain to them the orders made, the basis for those orders and that it is the court’s expectation between now and the final hearing that they will spend regular time with their father between now and the adjourned date and it is the form this time will take that is being mediated.
The court notes with gratitude the Independent Children’s Lawyer’s offer to be available to [X] and [Y] to discuss matters pertaining to this matter between now and the adjourned date and will also ask that she confirm this offer with [X] and [Y].
When this matter returns to court for final hearing in July 2012, the Independent Children’s Lawyer will be asked to appraise the court of the progress of relations between [X] and [Y], their father and mother.
In relation to the husband’s application that the wife be restrained from taking either of [X] and/or [Y] for further counselling with Ms G, I am of the view that such an order should be made. I am most concerned about the wife’s evidence that it was Ms G who advised [X] to pursue an Intervention Order against the husband in the Children’s Court, especially in circumstances where the question of the time [X] (and [Y]) is to spend with the husband was live before this court.
I also note that the Independent Children’s Lawyer supports an order restraining the wife from taking [X] and/or [Y] to Ms G for further counselling.
Finally, in the wife’s Response she sought interim orders in relation to the issuing of Australian Passports for [X] and [Y]. When the matter was before the court on 30 November 2011 and 1 December 2011, neither party made any submissions as to this issue. Accordingly, no orders will be made at this time in relation to the issuing of Australian Passports for [X] and [Y]. Should that issue remain live between the parties, it shall be determined by the court at the final hearing on 25 July 2012.
These orders are interim orders only and should not be viewed by either party as a “victory”, but rather this court’s attempt to remove [X] and [Y] from the parental conflict for a period of time and to afford all involved an opportunity to explore alternate ways forward.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Bender FM

Date: 20 January 2012