RTP & GTP - [2006] FMCAfam 369

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RTP & GTP

[2006] FMCAfam 369

FAMILY LAW – Variation of contact – children’s wishes – where four years after separation there exists highly conflicted parental relationship – children weary of parental conflict – parents lack insight into the effect of their attitudes towards each other upon the children – role models – where family reporter not exposed to aspects of parental hostility – therapeutic intervention unlikely to improve the children’s situation – contact reduced.

Family Law Act 1975, ss.60, 62, 65, 68

B and B Family Law Reform Act (1997) FLC 92-755
R and R: children’s wishes (1997) FLC 92-755
H v W (2000) FLC 93-3000
Chung-Wright v Wright [2006] FamCA 387

Applicant:

RTP

Respondent:

GTP

File number:

PAM2228 of 2004

Judgment of:

Ryan FM

Hearing dates:

21 & 22 March 2006

Delivered at:

Parramatta

Delivered on:

20 July 2006

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

Order 3(a) made 1 December 2003 in the Family Court of Australia is discharged.
During school term the Respondent Father shall have weekend contact from after school Friday until the commencement of school Monday (or Tuesday if Monday is a public holiday). Contact pursuant to this order commences on the next occasion contact was due pursuant to Order 3(a) referred to above.
Orders 1 and 2 above are suspended until the court publishes its reasons on 20 July 2006.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Pursuant to the slip rule order 2 above is amended to include the word “alternate” is inserted before the word “weekend”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM228 of 2004

RTP

Applicant

And

GTP

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by GTP (“the mother”) to reduce RTP’s (“the father”) contact with their two sons from five to three nights each fortnight. The arrangement whereby the children spend nine nights each fortnight with their mother and five nights with their father has been in place since at least 1 December 2003. Although the mother gave many reasons for her application, during closing submissions she emphasised that she pursued this application because the children, particularly Joshua, have repeatedly requested this reduction.
The children are Joshua (not his real name) born in 1993 and Aaron (not his real name) born in 1996.
In anticipation of this hearing, pursuant to s.62(G)(2) I ordered a family report. On 7 March 2006 Julieanne Greenfield interviewed the parties and children and observed the children with their father. Because there is no issue about the children’s relationship with their mother, the family reporter decided seeing the children with their mother was unnecessary and therefore inappropriate. Given the children’s ages, I see no difficulty with her approach. It is unlikely that observations of the children with their mother would have contributed to the family reporter’s understanding of the families issues.
Each of the boys told the family reporter they want to reduce their fortnightly contact to three overnights. Interestingly, both boys also expressed a desire to spend more time with their father. The family reporter attempted to reconcile these seemingly inconsistent positions. At paragraph 38 of the family report[1] she writes, “Both boys crave a close relationship with their father. It is interesting and very instructive, that both boys said they wanted more time with their father at the same time as requesting a reduction of their overnight contact. What the boys want is more time alone with their father, without having to cope with the dynamics created by being with their step-mother, step-siblings and half sister, compounded by their mother’s tacit disapproval of this”. Ultimately, the family reporter recommended continuation of the current contact arrangements. She opines that the children’s wishes for reduced contact are influenced by a number of factors which mask their genuine desire for time with their father.
[1] Exhibit A
The father believes the mother’s application is motivated by spite and has little to do with the children’s best interests. Although expressed differently, he claims that the mother responded to his contravention applications and application to reduce child support by, “punish(ing) him by reducing his time with the children”. He described the children as, “the sharpest weapon she has. She knows it hurts”[2]. However, the father’s initial response to my suggestion of restructuring contact so that the children spent most of their weekends with him was interesting. The father rejected this possibility as Saturdays are generally taken up with the children’s sport and on Sundays he plays golf. Thus increasing the amount of time the children spend with him on weekends would not increase the time spent in his company. The obvious strategy that he may give up golf for a period or include the boys, so as to have quality time with them found no favour. In my view this simple vignette demonstrates the boy’s dilemma. These boys do not measure their relationship with their father by reference to the amount of time they spend with him. Rather they yearn for quality time. That is intimate interaction and a sense of being central in his life when they are together.
[2] Paragraph 13, family report
The context within which children describe their feelings and wishes is always important. My observations of the parties during this hearing and the contravention applications immediately preceding corroborated the family reporter’s opinion that this is a high conflict separation. With respect, the family reporter’s description of the parties’ circumstances is apt. She writes, “This is a high conflict case which has had high conflict dynamic for three and a half years. The impasse results from the high conflict interactional dynamics between the parents. It has more than likely been exacerbated by their being a third party, the father’s de-facto wife, as the two women reportedly have an intense mistrust of each other. Unfortunately, the children are the ones most severely affected, as they have been for four years in effect living in a “war zone” created by the parents, with ongoing skirmishes over one issue or another. Child support seems to have been particularly problematic”. It is clear from the children’s discussions with the family reporter that each child is acutely aware of their parents’ poor relationship and their mother and step-mother’s hatred of each other. In a situation where each of the parents dearly loves the children, each has the capacity to provide for the children’s physical and intellectual needs, where there are no risk factors, the real question in this case becomes do the children’s wishes reflect their own feelings? If they do, is there any reason associated with the children’s welfare which stands in the way of giving effect to their wishes?
On 30 June 2006 I made the orders identified at the start of these reasons. Because I was absent from the registry these orders were handed down on my behalf by Federal Magistrate Henderson. These are the reasons for those orders. I see on the face of the orders there is a slip, in that the orders suggest weekend contact occurs every weekend. As is plain from these reasons my intention is that weekend contact continue with the same frequency but that its duration is reduced. The orders are thus amended pursuant to the slip rule.

Background facts

The father was born in 1964.
The mother was born in 1965.
The parties commenced cohabitation upon their marriage in March 1986.
Final separation occurred in August 2002 at which time the mother and children left the family home.
By early 2003 the father had re-partnered with his present partner N.
On 1 December 2003 the parties’ entered into consent orders which comprehensively address parenting and property issues. These orders[3] have been registered in this court and thus the court has jurisdiction to determine the mother’s application. Simply put, by these orders, the parties have joint responsibility for making decisions concerning the children’s long term care, welfare and development and each has responsibility for day to day decisions whilst the children are in their care. The father gave way on his desire for equal shared residence and the orders provide that the children are in his care as follows:
a)From the conclusion of school Wednesday until the commencement of school Monday every second week.
b)Half of all school holidays.
c)On Father’s Day.
d)Alternating Christmas.
e)At specified times on each of the children’s birthdays.
f)Thrice weekly telephone contact.
[3] Annexure A mother’s response
In essence this case concerns whether during school term contact should commence on Wednesday or Friday evenings. I explained to the parties the court is not limited by their proposals. If another option better promotes the children’s best interests the court may take this route. One option I thought worth consideration is dividing the children’s time with their parents so that each has clear responsibility for specific activities. For example, that the children spend most of the school week with their mother and weekends with their father. By clearly delineating activities the children need no longer be victims of their parents appalling relationship and inability to communicate. As the family reporter explained both boys are suffering terribly because of their parents “war” and it is essential some respite is found before each child is irretrievably damaged. Neither parent supports my proposal. My reason for abandoning this suggestion is that I believe one or both party will actively sabotage any possibility it may succeed. Thus the respite I am seeking for these boys must be found using a different strategy.

Relevant law

Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68(F)(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
A substantial issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare. The Full Court of the Family Court considered this issue in R and R: Children's wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." Once a child's wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described thus: "There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests." In Chung-Wright v Wright [2006] FamCA 387 the Full Court held “The concept (that is intuitive synthesis) is equally applicable to the process employed in the determination of the best interests of children generally. There can be no mathematical calculation of the qualitative factors necessarily involved in the determination of what constitutes a child’s best interests. It is the combination of the different aspects of the evidence with the judge’s observation and assessment of the parties and their syntheses in the light of the submissions of the parties or their counsel and the appropriate consideration of the law which produces the determination of the judge.”

The mother’s circumstances

The mother lives with the children in Mulgoa. Each of the children has his own bedroom and the home adequately provides for their accommodation needs. Recently, the mother started full time work, accepting a twelve month contract as an administration officer. She works Monday to Friday from 8.15 am to 4.00 pm. In the mornings, the mother drops Joshua to the bus stop at about 7.50 am and then delivers Aaron to school. On those afternoons when the children are in her care, Aaron attends after school care until shortly after 4.00 pm. Joshua arrives home from school at about 4.00 pm and lets himself in. The mother and Aaron arrive home at about 4.20 pm. The only variation to this arrangement is on Fridays when the maternal grandmother is at the children’s home when they arrive from school. On these days Aaron comes straight home from school.
Since separation, the mother has had two significant relationships. Firstly, with MR. This relationship ended when MR returned to live overseas. Two years ago the mother commenced a relationship with her current partner G who lives in the eastern suburbs. The mother and G have no plans to reside together. The mother has no plans to move away from Mulgoa. The children and G enjoy a companionable and easygoing relationship.
Prior to their separation, the parties agreed the children would have a Catholic education and the boys attended a local Catholic Primary School. This is where Aaron still attends school. Joshua is in year 7 at SD Catholic College. Notwithstanding that the primary school is a feeder school for SD, the father is unhappy that Joshua started high school at SD. The father believes SD’s academic performance is below par and would prefer Joshua to attend a different, preferably non fee paying, school. Nonetheless, Joshua is settled and happy at SD and is performing well academically. The mother’s choice of SD was somewhat high handed. The mother allowed Joshua to choose from three high schools, apparently allowing him to choose without the father’s input. As the parties share joint parental responsibility for long term decisions concerning the children, the mother was obliged to discuss Joshua’s high school education with the father. Whilst I understand that attempting to agree on a high school would have been torturous, an attempt should have been made. I have no doubt the father would not have agreed with Joshua’s enrolment at SD and the probability is that the boys’ transition to high school would have become highly traumatic. With the mother and father consulting each other in relation to Joshua’s high school, inevitably Joshua would have become embroiled in yet another round of parental hostility – with Joshua at the centre.
The mother told the family reporter that she finds the father, “very intimidating” and “very aggressive” towards her. During the hearing the mother made the same complaint. When cross-examining the mother, the father was aggressive and domineering, frequently talking over the top of her. The mother responded with bravado and demonstrated that she too is aggressive and domineering. With respect to her complaints about the father’s behaviour, the mother showed a willingness to engage in battle using the same tactics towards the father which she regards as unacceptable when applied to her. The mother’s capacity to deal with the father about the children has deteriorated a long way from her stance in an email sent 16 May 2003 where she wrote, “I hope we can help each other when the need arises. The boys are more settled when they know you and I are talking”. Although the mother will attend a post separation parenting program, my assessment is that her capacity to discuss the children’s welfare with the father is now virtually non-existent. The prospect that the mother can talk with the father and resolve issues relating to their children in a constructive fashion is probably years of therapy away.

The father’s circumstances

The father resides with his partner S at Penrith. S has two children by her former partner. They are Marcus (not his real name) aged 13 and Katie (not her real name) aged 12. Marcus and Katie see their father fortnightly, but do not have overnight contact. The father and S have a daughter who is not quite 2 years old.
The father works at Lidcombe where he is employed in a senior management position. His standard work hours are Monday to Friday 8.45 am to 5.00 pm. On those days when the boys are in his care, the father leaves home at about 7.50 am and arrives home at about 5.30 pm. On other days he leaves at about 7.20 am and arrives home anywhere between 5.30 pm and 8.00 pm. On weekends when the boys are with him, the father rarely works. Occasionally he has a sales weekend and on the few occasions this has occurred the boys have accompanied him. The boys have enjoyed seeing their father in his work environment.
The boys and the father share an interest in drag races and football. Previously, the father coached Joshua’s rugby league team. The father is keen to encourage Joshua’s sport, whereas the mother says whether or not Joshua plays sport is up to him. Sadly, although good at it, Joshua appears to have stopped of playing football because it had become another parental flash point.
In the family report, Ms Greenfield describes the father, “Throughout the interview RTP spoke rapidly and with an authoritative but respectful manner. At times he wept throughout the interview. He made the observation, “Yes I am forceful and forthright. That’s what I do in my job. But I’m not aggressive”. Ms Greenfield appears to have accepted the fathers self assessment and in her analysis focuses more on the mother’s role in the families difficulties. Although the family reporter did not see the father behave in an aggressive fashion, I did. During the hearing the father’s stance and tone with the mother was most aggressive. His cross examination was not a conversational exploration of salient facts. Too often the father harangued the mother. He was not dissuaded by her occasional distress or her attempts to avoid answering difficult questions. The father revealed total determination to have his own way and demonstrated where necessary, verbal aggression is part of his armoury.

With respect to the father, his contravention application revealed his capacity for profoundly controlling behaviour. The father is entitled to telephone contact three times a week. In his contravention application filed late 2005 he went back to June 2004 and complained of each occasion that one or other of the boys were unavailable for telephone contact. By this I mean occasions when one boy was available but the other was not. It also included an occasion when Joshua was on a school camp at which the school banned student mobile phones. The father knew about the bans on mobile phones. Nonetheless, it was his case that the mother should have made prior arrangements with the school for an exemption from the mobile phone ban for Joshua. On another occasion he alleged the mother breached the orders when although he had telephone contact with Joshua, Aaron was late home from playing at his friends and therefore unavailable. What the father ignored is that annually the orders provide for approximately one hundred phone calls, thus over a two and a half year period the orders provided for approximately 250 phone calls between the father and the children. He has missed out on about 15-20 phone calls and sees this as a proper basis for attempting to contravene the mother.
The father complained that he did not receive information from the school about special events. However, he knew the mother authorised the school to provide him with information and it is on Wednesdays that most notes about school activities are sent home. Attached to the father’s affidavit is a letter from Mackinson & d’Apice, lawyers for the Catholic Education Office. It appears the level of conflict between the father and school has reached the point where the school thought it was necessary to consult their lawyers. This reinforces my view of the father as a formidable advocate for his own position. It detracts from that part of the family reporter’s opinion that the father is non aggressive. Apparently instructed on behalf of the Primary School, Mackinson d’Apice wrote, “Our client understands that the school has forwarded copies of the children’s reports and any other relevant documents to you”. Thus the father was aware from both the mother, school and the schools lawyers that information was sent home with the children and other documents sent to him at the same time as they were sent to the mother. Surprisingly the father complained that when he missed out on receiving notes, it was the mother’s responsibility to rectify the situation. With respect to the father he was quite able to make these arrangements himself. His complaint to the court about this smacks of using litigation to grind the mother into submission.
The family reporter agreed with the father’s proposition that ideally he should be involved in the children’s schooling. Her concurrence was subject to a proviso that his involvement does not become another source of conflict. Should the father’s involvement in the school become conflicted then the family reporter said his involvement becomes destructive. It appears the father’s conflicted relationship with the Primary School, stems from disagreement about his liability for a share of the children’s school fees. Whilst both parents have a great deal to offer educationally, I have real reservations about their ability to resist embroiling the children’s schools and thus the children, in their disputes. For many children school can become a sanctuary from hostile parental relationships. These children have an acute need for their schools to provide sanctuary. Unfortunately it appears parental hostility is spilling over into their school environment and these safe havens are in danger of being eroded.

Determining the children’s best interests

Joshua is in year 7 at SD College. He told the family reporter that he enjoys his new school, “Because most of his friends from primary school are there and he has made some new friends as well”. The parties agree that Joshua is academically bright and is performing well at school. Joshua told the family reporter that he regards mathematics and history as his strongest subjects. Joshua plans to attend university and has narrowed his career choices to being either a forensic scientist or a radio announcer. The later choice stems from a work experience opportunity the father provided.
Having attempted to establish rapport with Joshua by exploring factual matters, during which Joshua was quite forthright, the family reporter then attempted to discuss the matter at hand. Joshua changed his approach in a way the family reporter found both interesting and concerning. She writes, “Up until this point, when we were discussing subjects that did not have emotional content or include material about the family, Joshua was quite forthright. When we began discussing the family situation, Joshua became withdrawn and unable to cooperate with responses. I switched to using some projective material rather than, “interviewing” him. He was able to do only four sentence completions out of seventeen. In stark contrast his younger brother, who happily and quickly completed all seventeen sentences”. He in effect, “sabotaged” another projective instrument by assigning over ninety per cent of responses to the long questionnaire to a, “does not apply” category. This is not Joshua’s fault, and in no way is meant to be a criticism of him”.
The mother was surprised by the family reporter’s reference to Joshua sabotaging the interview process. In her oral testimony, the family reporter explained that by this she meant Joshua was defensive about putting his point of view across and in his own way refused to cooperate with her questions. Ms Greenfield perceived that Joshua is sufficiently intelligent that he saw beneath her projective techniques and realised that she was, in fact, asking him to discuss his position about various people in his family. Simply put, she believes he sought to protect himself from being seen by his parents to take sides. The projective technique referred to is the Bene Anthony Family Relationships test. In the first part of the test, the child makes little post boxes attributed to members of the child’s family. The child nominates who is in the family. One of the post boxes is allocated to a, “Mr Nobody”. Thus a child can attribute answers as applicable to, “Mr Nobody”. Using the Mr Nobody post office the child is, in effect, saying, “This question does not apply” or, “I do not want to answer this question”. Joshua put most of his answers in the Mr Nobody post box. When the family reporter challenged Joshua about this he was very firm that he was not going to cooperate.
With the projective technique component of the interview completed, the family reporter reverted to the interview style with which Joshua had previously been more cooperative. She writes, “Joshua did however have a view about the substantive issue of whether to reduce overnight contact. Joshua said that he does not wish to stay overnight at his father’s house, primarily because, ‘he does not really like’ his father’s partner. His reasons for this were that she swears occasionally. Also he believes that, ‘he does not really like’ his brother and him. He knows this because he has heard it from other people, although he cannot recall who the people are. Secondly, he, ‘do[es] not get good food for lunch’ for school on Thursday and Friday. Finally, he has to carry in his bag his school requisites for the next three days as there are no lockers at school. His bag is too heavy for him to manage. When I asked Joshua, ‘When you are with dad, do you feel that you are spending enough time with him?’ He replied, ‘not really’. Would you like to spend some time with dad without S and the kids? ‘Yes’, ‘Would that be with you alone or with you and Aaron? ‘Both’”.
Ms Greenfield explained that although both children were forthright in stating their wishes, she does not believe that their wishes should carry a great deal of weight. Because her reasons for qualifying the children’s wishes are applicable to both boys, I will discuss Aaron’s interview with the family reporter before returning to the family reporter’s concerns.
Ms Greenfield described Aaron as a, “smiling, confident child”. Aaron told her that he is good at handwriting and mathematics. When he leaves school Aaron would like to be a kindergarten teacher or perhaps a rugby league expert. Aaron has played rugby league for two years and is now in his third season. Regarding Aaron, the family reporter writes, “Aaron perceives his father as, ‘funny, playful and happy’. However, he said that his father is the, ‘sadder parent’ as, ‘he gets upset when we are not over there’. Sometimes he worries about his father because, ‘he misses us’. In the sentence completion task Aaron finished the sentence, ‘I wish that my father’ with ‘would spend more time with me’. Discussing this afterwards, Aaron explained that normally dad is with all the other kids and that he, ‘Aaron’ wants more time with just dad, Joshua and him together. He perceives his mother as fun to play with and helpful. In the sentence completion task he nominated her as the person he can best count on. Discussing this afterwards he elaborated, ‘she never tells anyone what I say’. When asked which parent he worries about most, he replied that it was his mother, because, ‘when we aren’t there she’s in the house alone’.
‘When I asked Aaron about his father’s partner, S, the following conversation ensued, ‘Aaron: She swears in front of us. Counsellor: When does she swear? Aaron: Like when she drops something on her foot. Counsellor: Does she swear at you guys when she’s mad at you? Aaron: She doesn’t really yell at me. She yells at her kids. Sometimes she’s mean to her kids and that. Most of the time she’s not mean to me. Counsellor: Do you like her? Aaron: Not really. In another part of the interview Aaron said, ‘I always hear S talk about mum. Sometimes she has said that mum is aggressive.
‘In relation to Aaron’s exposure to conflict, Joshua wrote the following sentence completions: Sometimes I feel worried about .. ‘people having fights’. The worst thing about divorce is .. ‘adults keep fighting’.
‘Aaron said that it had been ‘bad’ when his parents were ‘having fights on the phone and that’. This does not happen any more. He thinks his parents still fight, ‘a little’ but he does not hear it. However he overhears conversations about the conflict. I asked Aaron how his parents got along now and he replied, ‘Not well’.
Aaron wants to reduce his contact to three overnights per fortnight. “This is cos of homework. We get too much. I don’t like studying at dads. There are three birds and they keep squawking and that”.
“The court childcare worker had commented to me that in the hour or so the boys were in her care she found them disruptive to other children and ‘somewhat’ hostile. When Aaron was reprimanded for commandeering another child’s computer keyboard and erasing his work, he had gone over to the blackboard and written in letters that filled the board, ‘I rule’ and ‘He sucks’.
Observation in the playroom with their father indicated that the boys have a loving bond with him. They appear happy to be with him and responsive to him. He collaborated with them in set tasks, but at all times maintained control.
After the observation RTP told Joshua that he had laminated his bus pass and asked him how he might get it to him. The choices were that Joshua go with his father now and be dropped home later, that Joshua drop by the father’s house and collect it on his way home, or that Joshua accompanies his father to the car some blocks away from the court and be dropped back to the court by his father. This threw Joshua into total confusion. He changed his mind several times about what he should do. It appeared to me that he was trying to ascertain what his mother would like his response to be. Finally, he opted for picking it up from his father’s place on his way home.”
“Joshua, as the older child at the time of the separation (and possibly factors to do with his own temperament) is the most severely affected. He presents as withdrawn and emotionally constricted. His mother said that he had been to three counsellors over the years (for one visit only, I believe) and that he had refused to ‘open up’. This is an entirely reasonable response from Joshua, given the family dynamics and being confronted by a strange counsellor who he has not learned to trust. A truly therapeutic relationship with a counsellor takes time (many visits) to develop. There is no ‘quick fix’ for a child who has been subject to high conflict dynamics between his parents between his 8th and 12th year. If the conflict between the parents persists Joshua is at risk of either teenage depression or rebelliousness which could put him in unsafe situations …
Aaron’s temper (a fact which the child readily admitted to in interview) and his antisocial behaviour in the court childcare facility, indicate that he is harbouring a good deal of anger. While Joshua is, ‘internalising’ his distress, Aaron is ‘externalising’ his. Rather than make the boys, ‘the problem’ it is hoped that the parents can see that the conflict between them is the real problem. If they can deal with their own issues, they will see a dramatic improvement in the boy’s adjustment.
Both boys crave a close relationship with their father. It is interesting and very instructive, that both boys said they wanted more time with their father at the same time as both requesting a reduction of the overnight contact. What the boys want is more time alone with their father, without having to cope with the dynamics created by being with their step-mother, step-siblings and half sister, compounded by their mother’s tacit disapproval of this. Unfortunately, they will have to adjust to the reality that their father has a new family which entails multiple relationships and multiple responsibilities to service those relationships. Until the children’s mother comes to terms with this, the boys also will have difficulties with coming to terms with it. However, it is not unreasonable for the father to set aside some structured time to spend with his boys one on one. This could be achieved by RTP setting aside one day per fortnight exclusively for the boys. This is all the more urgent if he stops to consider that in three years time Joshua will be 15 years and 3 months old and will in all likelihood be refusing defined weekend contact. Thus this is a short term investment of time, which will reap long term benefits. RTP may encounter resistance from the rest of his family, but it could be put to them that on that day they will be spending special time with their mother, visiting her relatives, or whatever.
In relation to the issue of whether contact should be reduced by two nights per fortnight, there are several factors to consider. I am not satisfied that this issue is not underpinned by both parents’ ongoing battle over child support. I would like to be confident that both parents are in good faith and that their interests truly relate to what is best for the boys and that the driving force is not their possible ‘hidden agendas’. Leaving aside the issue of child support … I highlight the following: I believe that the mother wants to support the boys’ wishes, which are ostensibly to reduce the overnights spent at their father’s home. However, I do not think GTP gives herself enough credit for the way that their wishes for reduced overnights have been shaped by her in possibly subtle ways. I do give credit to JTP’s claim that he does not want to be simply a ‘Disneyland Dad’. However, to demonstrate this he needs to factor in some one on one time with the boys, even if that means resistance from his new family, as explained above. When he re-partnered approximately three and a half years ago, he had a pre-existing commitment to his two young sons. Because I regard it as doubtful that this family will engage the services of counsellors to assist in post-separation parenting issues, I have made a list of suggested activities (based on my understanding of the father and boys’ interests) that require time rather than money as the chief resource.
To further explore the issue of a reduction in contact, with an examination of the reasons for the boys’ wishes: Aaron nominated as his reason for wanting to reduce overnights is his strong wish to do his homework in a quiet place without the distraction of the three noisy caged birds, who live at his father and his partner’s house. I have no doubt this could be arranged. Aaron could come home from school, be given a snack and be provided with a quiet area in the house for an hour every second Wednesday and Thursday afternoon to complete his homework. He could possibly do his homework at his paternal grandmother’s house, which (the mother reported) is his first stop after school on Wednesday to Friday afternoons. (In any event GTP says that Aaron finishes his weekly homework before he goes on contact with his father.)
Joshua has given three reasons for his wish to reduce overnights. He says the main reason is that he does not like his father’s partner. This is because he has heard from other people (he forgets who) that she does not really like his brother and himself. Also, she used to swear a lot, but does now only occasionally. Secondly, he does not like the school lunches that are packed for Thursday and Friday. Finally, he does not like having to carry all the ‘stuff’ to school that he will need from Wednesday to the following Monday. The second and third issues are very easy to rectify. I suggest that the father regard this as a special situation and exercise some discretion, whether that be that the boys can buy their lunches on those days, make their own or whatever. Standing one’s ground on this issue and viewing the boys as spoilt will be counter productive. The father has been very clear that he is willing to drop Joshua home to collect anything he needs for school as the parents live in the same suburb and it is not inconvenient. The issue of the boys relationship with their step- mother is more problematic and needs sensitive handling by all parties. GTP needs to understand that there is nothing to be gained by alienating the boys from their step-mother. RTP’s partner needs to realise (if she does not so already) that the boys may appear spoilt, but they are also children who have been exposed to a difficult divorce and ongoing conflict, who have to manage their feelings about their father living with another family and with other children.
My assessment is that RTP has much to offer these boys (Joshua an adolescent and Aaron approaching adolescence) as a strong male role model who shares the boys interests in their school work and aspirations, in cars, bikes, wrestling and football. This relationship will be fostered optimally by the boys experiencing not only recreational time with him, but normal routine family life as well. I would like to see Joshua following the current contact schedule for the next two years, and in 2008 making his own decision about whether to reduce contact to every second weekend, in consultation with a counsellor, with whom he has established a therapeutic relationship. Hopefully this will avoid the matter having to return to court.”
In her oral evidence the family reporter emphasised her fear for both children. Without being melodramatic, she said “… children like this, when they get into their teen years, can start to use drugs, get involved in crime.” With such serious evidence in the family report and her oral testimony, the parties response to my question concerning therapy for the boys is depressing. Following release of the report neither party had done anything, including making enquiries, about possible counselling or therapy options. The mother said she is willing to participate in counselling if the parties each paid half. The father said he is willing to participate provided his child support is reduced by the amount he spent on counselling. Neither party appeared even mildly embarrassed by their responses.

To the extent counselling or therapy is seen by the family reporter as potentially offering the children respite from their parents hostility, I believe she is overly optimistic. These parties are obviously intelligent and are capable of understanding the gravamen of the family reporter’s opinion. It should have come as no surprise to either party to see that because of their hostile relationship, their children are in emotional crisis and suffering psychologically. The family reporter explained that no amount of therapy will assist either child without both parents co-operation. I have no difficulty accepting her evidence on this point and give it considerable weight. At the end of the hearing both parties expressed at best, half hearted support for counselling. Neither impressed me as doing anything more than mouthing platitudes in the hope doing so may progress their case. The sense I gained from both parties is that while each may briefly co-operate in counselling or therapy for the children, neither is even remotely interested in repairing the parental relationship. For reasons I cannot even begin to guess at, each of these parties appears comfortable to continue their war. Four years of battle usually wears out the most combative participants. In this case, tragically both parents seem ready for more. I place considerable weight upon my strong belief these parents will persist with their overtly hostile relationship. Quite simply, there is no end in sight. This hearing rarely touched on relevant issues. There was considerable attention given to how Aaron walked home and precisely when the father revealed to the children he had commenced an intimate relationship with his partner. Both parties focused on old adult relationship issues and relatively insignificant events which had little to do with the matter at hand. With respect to them, each of the parties indulged personal grievances and made little attempt to assist the court focus on their children’s situation. The manner in which each conducted the hearing was more telling than the evidence either adduced. As the hearing drew to its close the father at least agreed the parties behaviour had been appalling. In terms of the parties dealing with each other, I believe I observed their usual mode of communication. Unable to contain them selves in the courtroom, it seems likely the children have witnessed similar behaviour. I am of the belief it is highly likely the children are attuned to their parents’ hostile relationship and that too often they observe examples of it. This would explain Joshuas decision to pull out of football. It also explains Aaron telling his father he could not enter the mother’s garage when fixing his bicycle even though she told Aaron his father was welcome. This simple vignette reveals how anxious the possibility of contact between his parents makes this child. It seems this feeling is shared by both children.
I have no doubt that the children will continue to be embroiled in their dispute, which in turn will almost certainly continue to damage both children emotionally and psychologically. This is a finding to which I attach considerable weight.
The children have reached an age and stage of maturity which gives them the capacity to reflect on their own circumstances and makes sound decisions. For about four years, the existing contact arrangements have worked well in the sense the boys have had extensive contact with both parents. Examined from the perspective of the boys emotional and psychological well being, however, the arrangements have not succeeded. Both boys dearly love each parent and are dearly loved in return. However, for their own reasons each has come to a point where they seek change. There is little room for doubting that the children have searched for some common ground between their parents and found it lacking. The family reporter analysed the boys’ wishes and in effect decided their reasons were trivial and insufficient to justify change. While I agree with her that there are solutions to their concerns which do not involve reducing contact, none of the solutions resolve the problem the parties appalling relationship imposes on the children. Joshua’s school bag, Aaron’s homework, and noisy birds problem are readily solved in the manner outlined by the family reporter. When the family reporter focused on these matters as a key issue, I fear she missed the point. These trivial matters are simply the boys’ way of giving an enquiring adult reasons for reducing contact which the adult may find acceptable. Relevantly, reasons which are not critical of either parent but which give them respite from their parents hostility. In my view the family reporter’s analyses of the children’s wishes focuses too much on her view the reasons are insubstantial and her belief that the parties will change.
As I have earlier found, I have little faith in the parties’ willingness to genuinely engage therapy in order to improve communication and focus on their children’s well being. Because of the parties attitudes therapy has little to offer. This means it is unlikely either party will make the attitudinal changes needed in order to provide the boys with respite from their parents’ hostility. I do not accept the father is willing to spend more one on one time with his sons. His cross examination of the family reporter focussed extensively on the children’s relationship with their step siblings and half sister and he seemed to be trying to dissuade the family reporter from her recommendation that he changes his routine while the children are with him. The sense I was left with is that the father believes the children must accept his new family as theirs and that the best way to achieve this is for the children to immerse themselves in it. After about three years of trying this approach the father remains deaf to the children’s desire that they have more of his time. This is a common and extremely difficult dilemma to resolve and one which the father’s immersion strategy sometimes succeeds. However in this case it has not worked and seems unlikely to in the future.
Given the children’s ages and years of trying the nine day five day cycle I believe the children are in the best position to determine whether or not they can cope with its continuance. Although each has used child like formulations to describe why each seeks a reduction in contact, their reasons probably cover anger and emotional distress. As revealed by the family reporter Aaron is an angry child starting to take his anger out on others. Joshua is emotionally troubled and both are psychologically damaged. Although it weighs heavily on me, as I have no faith in therapeutic intervention to improve the children’s situation, I believe the court should respect the children’s wishes. Of the available scenarios it seems this one gives the children the greatest prospect of relief if only because it is what each child seeks.
Reducing contact means the children will not have the extra one on one time with their father each child seeks. For reasons given earlier, nor will maintaining contact. I agree with the family reporter that the father offers a sound male role model from which both children benefit and from which as they grow older both would enjoy and benefit. If by maintaining the existing arrangements I believed the father would give the boys more of his time, the mother’s application may have failed. However it seems to me that whether the children spend three or five days each fortnight with their father his influence on them will be similar. I doubt the reduction in time will have any material impact on the quality of their relationship or the children’s relationship with his family.
Reducing the children’s time with their father may increase the impact the mother has on them. Her attitudes to their father are unpleasant and there is a risk the children may increasingly adopt them. The family reporter seemed to interpret Joshua’s indecision at his father’s request that he collect his bus pass as proof the child is unduly influenced by his desire to please his mother in relation to his dealings with his father. In my view this incident, described in the family report, demonstrates the child’s discomfort with both parents rather than the strength of his mother’s influence. If the father had any sensitivity to the children’s discomfort when dealing with co parental issues, he would not have raised this first with Joshua. It would have been far simpler had he delivered the bus pass or first raised the issue with the mother. In the children’s discussions with the family reporter some of their criticisms of the father’s partner and home have a similar ring to their mother’s complaints. This suggests her influence vis a vis the father’s partner and home in particular has been negative and is likely to continue to be so. However one cannot ignore that she has facilitated years of contact and that although she has been primarily responsible for the children’s care their relationship with their father is strong. Although finely balanced, it seems likely their relationship is strong enough to survive her negativity. This is a factor to which I attach considerable weight.
By acceding to the children’s wishes it is my hope and belief they will feel they have more say in their family than either child has had to date and thus find emotional and psychological relief from a situation that has damaged both.
No parenting orders are final in the sense the court always retains jurisdiction in relation to children. It is my hope that by making orders which reflect the children’s wishes the prospect of future litigation is reduced. Had the court failed to make orders in accordance with the children’s wished the prospect of future litigation seems higher. This follows from my views that because the parties’ attitudes and behaviour are unlikely to improve and the children’s views are only likely to harden. As I indicated earlier this outcome weighs heavily on the court. These parties should have made the existing orders work. They live nearby to one another, are intelligent people, with intelligent children and both love their sons. It seems to me all that they needed to change to make these orders work is to protect the children from the appalling relationship. This has not occurred and it is my belief the children can no longer endure the strain this causes.
For these reasons I make the orders identified at the start of this judgment. I am satisfied they are in the children’s best interests.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 20 July 2006