Re Michael and John (Children - contact)
[2003] FMCAfam 232
•16 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| Re Michael and John (Children – contact) | [2003] FMCAfam 232 |
| FAMILY LAW – Children – parenting orders – contact – parental conflict and abuse – impact on the children – parental relationships with the children – whether the children should be denied contact with the father – what preconditions should be satisfied before contact could be restored. |
Family Law Act 1975 (Cth), ss.60B, 62F, 65E
Family Law Rules
M & N (2000) FLC ¶93-059
| Applicant: | BH |
| Respondent: | KH |
| File No: | NCM5474 of 2002 |
| Delivered on: | 16 May 2003 |
| Delivered at: | Newcastle |
| Hearing date: | 16 May 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamilton |
| Solicitors for the Applicant: | D J Chapman Solicitors |
| Counsel for the Respondent: | Mr O'Sullivan |
| Solicitors for the Respondent: | Schofield Muir Solicitors |
| Counsel for the Children: | Mr Graham |
| Solicitors for the Children: | Legal Aid Commission of NSW |
ORDERS
All previous parenting orders concerning MICHAEL, born 21 June 1990 and JOHN, born 18 July 1997, (“the children”) are vacated.
The children shall live with the mother.
That pursuant to s.62F of the Family Law Act1975 (Cth) (“the Family Law Act”) the parties separately attend a minimum of 10 conferences with a counsellor or agency accredited under the Family Law Act, nominated by the Coordinator of Primary Dispute Resolution of the Federal Magistrates Court, for the purpose of discussing the welfare of the children and to endeavour to resolve parental conflict and post separation parenting issues, including methods used by the mother to discipline the children.
Pursuant to s.62F of the Family Law Act the father and the children attend a course of counselling with a counsellor nominated by the Coordinator of Primary Dispute Resolution of the Federal Magistrates Court to address relationship issues between the children and the father, and that the mother attend such counselling if requested by the counsellor.
The father attend a general parenting course and an anger management course approved by the Coordinator of Primary Dispute Resolution of the Federal Magistrates Court to enhance his practical parenting skills and to assist him to control his anger.
The father have contact with the children as follows:
a)by the sending of cards, letters and gifts at any time, and that the mother use her best endeavours to encourage the children to write to the father;
b)by telephone not less than once per week each Wednesday between 5.00pm and 6.00pm, to be initiated by the mother telephoning the father on a telephone number nominated by him from time to time, and then passing the telephone to the children, who shall thereafter be given reasonable privacy by the mother for the duration of each call;
c)subject to compliance by the father with orders 3, 4 and 5 (which compliance may be concurrent), for up to three hours per week at the Rainbow Children’s Contact Service at Hamilton, to be supervised by that Service, at a time and day each week to be arranged with that Service;
d)following the completion of three months contact pursuant to order 6(c), each Saturday between 9.00am and 5.00pm at the home of the paternal grandmother, subject to the provisos that:
i)the contact shall be supervised by the paternal grandmother; and
ii)prior to the commencement of the first period of contact pursuant to this order the paternal grandmother shall give a written undertaking to the mother that she will not denigrate the mother or any member of her family in the presence of the children;
e)following the completion of four month’s contact pursuant to order 6(d) from 5.00pm on Friday until 5.00pm on Sunday on alternate weekends.
The father provide to the mother written evidence of compliance with orders 3, 4 and 5.
The father be permitted to attend the children’s sporting activities, provided that he does not approach or speak to the children or the mother prior to the commencement of face to face contact pursuant to order 4(c), and that the mother give the father prior written notice of such sporting activities.
The mother give the father copies of the children’s school reports and newsletters regarding the children’s education.
Both parties be restrained from consuming alcohol to excess or self administering any illegal substances during periods when the children are in their care.
Both parties be restrained from denigrating each other in the presence of the children or knowingly permitted any other person to do so.
The mother be restrained from corporally punishing Michael and be further restrained from corporally punishing John except by the use of her open hand against his posterior.
Each party have liberty to apply for further parenting orders arising out of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM5474 of 2002
| BH |
Applicant
And
| KH |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
These proceedings are an application by the father for orders for contact with two children, MICHAEL and JOHN (not their real names) (“the children”).
I have proceeded on the basis that both children are the natural children of the applicant father, although some doubt was expressed by the father during the course of the trial. No tests have been conducted in order to verify parentage. The assumption I am making is that both children are the natural children of the applicant.
The application is opposed by the respondent mother, KH. The orders that were sought by the father in his application might be described as ordinary contact orders for children of this age. The mother conversely seeks orders that there be no contact between the children and the father.
Notwithstanding the orders sought in the application, at the conclusion of evidence and during submissions Mr O'Sullivan, for the father, made a substantial concession and submitted that contact with the father should be on the basis recommended by Ms Catherine Carter, a child and family counsellor, appointed to prepare a family report in accordance with the Family Law Rules.
A report had previously been prepared by a Mr Davis. The previous report was somewhat shorter and less comprehensive than Ms Carter's report. I took the view that the first report was effectively subsumed in the second. Ms Carter was cross-examined during the course of the trial today.
The parties themselves relied upon documents set out in a list of documents prepared by Mr Hamilton, who appeared for the respondent mother. Generally the parties relied upon a series of affidavits by themselves and affidavits by their respective mothers. Other incidental evidence was given by other family members on behalf of the respondent mother. All significant deponents were cross-examined during the course of the trial.
Turning to the relevant law, parenting orders arise in proceedings that result from part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). Subject to s.65E of the Family Law Act, in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle. Subject to that, s.60B sets out the objects of part VII and the principles which underlie those objects. The four principles are:
(i)children have a 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;
(ii)children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development;
(iii)parents share duties and responsibilities covering the care, welfare and development of their children; and
(iv)parents should agree about the future parenting of their children.
These are only principles, not prescriptive rules, and they are subject to the overriding requirement that the Court act on its perception of what is in the best interests of the particular children involved. Nevertheless, the principles are important and I encourage the parties and others in their family to think about them when dealing in the future with issues concerning the children.
Section 68F factors
In determining what is in the best interests of the particular children in this case I must have regard to the factors set out in s.68F of the Family Law Act.
The children’s wishes
The first of those is the children's wishes. We are dealing with two boys, Michael, who is now approaching 13 years of age, and the other, John, who is now approaching 6 years of age. I have evidence that Michael has expressed clear views that he does not wish to see his father. I also have evidence that John has also expressed some similar views, although they seem to be less clearly expressed. He appears to a large extent to take his lead from his older brother.
It is appropriate that I take into account the wishes of both children and give significant weight to the wishes of the older boy, Michael. However, the analysis does not stop with a simple acceptance of those wishes. I have to also consider how those wishes have come about. That leads me to a consideration of the nature of the children's relationships.
The nature of the children’s relationships with the parties and others
The marriage between the parties was turbulent and particularly turbulent towards the end when the parties separated in 1990. I have heard evidence of a high level of conflict between the parents and conflict which impact upon the children. The children have inevitably witnessed, both before separation and after separation when the children and the parents still spent some time together, a significant level of conflict.
The mother is the primary care-giver and the children appear to have a normal and loving relationship with her. The relationship between the children and the father appears always to have been rather more limited. The father engaged in play and outings with the children and appears to have been effective during the parties’ cohabitation in the performance of that role. However, the mother was the primary carer and certainly remains the dominant carer of the children.
There is compelling evidence that the relationship between the children and their father has been adversely affected by the conflict which has occurred between the mother and the father. I will deal later with issues of family violence, but at this point I consider it appropriate to note that I accept generally the mother's evidence of abuse that occurred during the course of cohabitation. I accept that the father must bear primary responsibility for the conflict that has occurred between him and his wife.
The father must, therefore, bear significant responsibility for the deterioration in the relationship not only between him and his wife but also between him and his children. If that relationship is to be restored the father has to accept that fact and come to terms with it.
However, there also, in my view, is compelling evidence that the relationship between the children and their father has been adversely affected by the ongoing hostility of the mother towards the father. The separation of the parents was traumatic. There were instances of physical abuse and verbal abuse. The mother blames the father for that and that is understandable.
However, the mother has wrongly sought to punish the father by failing to encourage and probably, although not overtly and consciously, discourage the children from having contact with their father. The mother needs to understand that except in rare circumstances children benefit from having a relationship with a male parent. The mother needs to distinguish between her own sense of grief and loss and her parental responsibility for the needs of the children.
The children, notwithstanding the father's shortcomings as a husband, will benefit from having a relationship with the applicant as a father, taking into account the evidence that has been presented of the normal relationship between the father and the children up to separation and the normal relationship of a father to his children that was demonstrated to Ms Carter.
Ms Carter had a limited opportunity to assess the family relationships and the evidence presented to me presents a broader picture. However, while the father has certainly demonstrated shortcomings he is not so bad a figure that his influence would be entirely negative. Provided that the father can come to terms with what has occurred in the past and show a more mature attitude to his parental responsibilities in the future the children will benefit from having an ongoing relationship with him.
The likely effect of any changes in the children's circumstances
The father has had the benefit of orders for contact on an interim basis previously. While some contact has occurred, in more recent times there has been no contact and the contact that has occurred has been intermittent and problematical. The children have not wanted to go on contact and the mother has made little effort to encourage contact. For contact to be effective, the relationship between the father and his children will need to be restored and care will need to be taken so that more harm is not done during the restoration of that relationship.
Ms Carter has dealt with this issue at some length in her report and has proposed a graduated regime of the restoration of contact that would be preceded by counselling both for the father and the children and also the mother. Ms Carter gave evidence that certainly the parties, and probably also the children, need to have the benefit of some therapeutic intervention in order to prepare them for the contact that would follow.
In the absence of that therapeutic intervention, in my view, the restoration of contact would be too dramatic a change in the children's circumstances and could be severely detrimental to them. With therapeutic intervention the reintroduction of contact could, in my view, be managed and the children could gain the benefit from that restored role from the father.
I have heard from Mr Hamilton of the risks that would be posed by permitting future contact between the father and the children. He referred to a number of cases, in particular the case of M & N (2000) FLC ¶93-059, a decision of His Honour Mullane J which points to the dangers of permitting a parent to have continuing contact with children in circumstances where that parent will have a negative influence on the children. That is a risk.
It is important that any contact that occurs between the father and the children should not be an opportunity for the father to engage in or permit ongoing abuse, certainly of the children, but also of the mother. There must not be a continuation of the emotional tug of war that has occurred between these parents over the children. Both parents have to act in the best interests of the children and not use them as proxies for the conflict between them.
The practical difficulties and expenses associated with contact
This is not, in my view, a significant consideration given that the parents live relatively close together.
The capacity of the parents to meet the children's needs
Residence in this case is not in issue. There is plenty of evidence of the mother's capacity to meet both the physical and emotional needs of the children. The father has demonstrated a more limited capacity. He has shown that in the past he has played a role of a playmate and friend of the children and has provided some of their physical needs.
However, I have some concern that the practical parenting skills of the father are at this point inadequate and that he needs to undergo some education to further develop those practical parenting skills. That should be canvassed in the orders.
The children's maturity, sex, background and other characteristics
We are dealing with two boys, one of them a teenager and he is approaching a sensitive stage in his life. In those circumstances, the parents have to pay particular attention to his needs when they are making decisions affecting his welfare. I am not told of any special characteristics, for example, of race or ethnicity relevant to these children.
The need to protect the children from physical or psychological harm caused by abuse, ill-treatment, violence or other behaviour
I reiterate that I generally accept the mother's evidence of past abuse. The father has been the abusive party and he needs to come to terms with that. The father has shown an immature attitude to his relationship with the mother and her relatives. I accept Mr Graham's submission that there are issues of anger management that the father needs to deal with. While it is not apparent that the father has been physically abusive to the children in the past he has certainly been physically abusive to the mother. Until the father deals with those issues and comes to terms with the need to cope with anger management there is some risk to the children. There is a further risk, that the children will take their lead from him. Michael has already shown behavioural problems. Accordingly, that risk needs to be dealt with.
In terms of psychological harm, I am concerned at the mother's attitude, and to some extent the attitude of others in her family, in so vigorously opposing contact between the children and their father. This can also be a form of psychological abuse. While the mother and her family may not have consciously and overtly tried to prevent the children from wanting to go on contact with the father, there has certainly been denigration by both parents of the other parent in the presence of the children and other family members have been involved. That is to be deplored. That kind of denigration in the presence of the children can constitute a form of psychological abuse.
It tells the children that they are expected to be partisan players in the continuing conflict between the parents. It forces the children to take sides. It prevents the children from expressing their real wishes and needs to the particular parents. I heard several times from the mother that she knows what the boys want. In my view, the boys have been telling the mother what they think she wants to hear. The mother does not accept that but, in my view, she needs to accept that the boys have felt unable to express their real wishes because of their view of the role they are expected to play in the ongoing conflict between the parents. That abuse needs to stop and it needs to stop now.
The attitude to the children and of the responsibilities of parenthood demonstrated by each of the children's parents
To a large extent I have already covered this issue in the observations I have made on the other factors. Generally, the mother has shown the responsible attitude as a parent but she has shown a significant weakness on the issue of contact with the father. The father has shown an immature attitude and has demonstrated an abusive history in his dealings with the mother. He has also shown, in my view, an immature attitude to the issue of contact. He has until now seen it more as his right as a father rather than as a right enjoyed by the children. The parents have responsibilities. It is the children who have rights.
Family violence involving the children and any members of the children's family and family violence orders
There have been, it seems, several apprehended violence orders made in the past protecting at least the mother. I have already accepted that there has been family violence and abusive behaviour by the father.
I do not see an unacceptable risk of physical violence by the father against the children, although I adopt a cautionary attitude in the absence of the counselling that will be ordered.
On the mother's side, there is evidence that the mother has used corporal punishment on the boys with a strap. This particularly has been used on the younger boy but there is to be some evidence that it may have also been used on the older boy, at least in the past. The mother has played down that issue and has given evidence that the strap was used more as a threat.
On the other hand, Ms Carter was concerned about it and under cross-examination suggested that her report ought to be made available to the Department of Community Services. In my view, the orders that the Court should make can deal adequately with the issues both of psychological abuse and physical abuse. I will make orders restraining the mother from using corporal punishment against the older boy, Michael, as, in my view, he has reached an age where it is inappropriate to use corporal punishment.
I will also make an order restraining the mother from using corporal punishment against John other than the use of the open hand on the posterior. I take the view that the orders that the Court will make, including those orders, can deal adequately with the issues of violence and abuse that arise from the family reports and that the introduction of the Department of Community Services, limited to those issues arising from the report, would probably not be as productive as those orders.
If there are further issues arising in relation to these children and if the orders that the Court makes are unsuccessful or are flouted then there will be a serious issue of whether the Department should then be involved. Of course, I cannot and should not seek to prevent anyone from making a report to the Department if they felt the circumstances required it. The State has its own responsibilities in terms of child welfare and protection.
Whether it would be preferable to make an order which will be least likely to lead to the institution of further proceedings in relation to the children
One is pessimistic in these circumstances about the effectiveness of any orders in preventing further litigation. It sometimes seems that in protracted family law disputes the orders that the Court makes only lead to further litigation.
If I were to accede to the mother's request that there be no contact, I do not believe that the father would give up his attempts to have contact and there would be further litigation. The father, through his counsel, has wisely given up his attempt to have unsupervised contact at an early stage, which would certainly have led to further litigation.
There is certainly a risk that any orders for contact will not be respected or be in some way disputed which would probably lead to further litigation, but that risk needs to be put in proper context and weighed against the benefits that otherwise flow to the children from a proper and graduated restoration of contact.
There are no other facts or circumstances that I think it necessary to take into account.
Generally, we are dealing here with a situation of lengthy, serious and protracted dispute between parents that has adversely impacted on two boys. Both parents have been at fault and both need to be assisted to better understand their parental responsibilities and promote a restoration of a proper relationship between the boys and their parents.
While the father has shown real limitations in his understanding and performance of his parental role he is not so bad a father that he should be denied all future contact with his children. He needs to be assisted to restore and perform that role and the other members of the family at least should not get in the way.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 June 2003
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