S & R
[2005] FMCAfam 252
•24 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & R | [2005] FMCAfam 252 |
| FAMILY LAW – Children – contact – father had not had contact with children aged 12, 9 and 8 for 18 months – children oppose contact – balance of benefit of forced contact with detriment of no contact – right of child to contact with each parent – contact to occur only in accordance with children’s wishes – father permitted to send correspondence on significant events – mother required to keep any correspondence received until each child turns 18. |
| Family Law Act 1975(Cth), ss.60B; 65E; 68F |
| B and B Family Law Reform Act 1995 (1997) 21 FamLR 676 M & M (1998) 166 CLR 69 Marriage of P A and J A Litchfield(1987) 11 FamLR 435 M & M [1973] 2 All ER 81 |
| Applicant: | JS |
| Respondent: | SR |
| File Number: | PAM3040 of 2001 |
| Judgment of: | Emmett FM |
| Hearing dates: | 14 & 15 December 2004 19 May 2005 |
| Date of Last Submission: | 19 May 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 24 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Foster |
| Solicitors for the Applicant: | Philip Wilkins & Associates, Mr Wilkins |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Dignan & Hanrahan, Mr Duncombe |
| Counsel for the Children’s Representative: | Mr Macpherson |
| Solicitors for the Children: | Legal Aid Penrith, Ms Crawford |
ORDERS
All other orders are hereby discharged.
The children MR, HR and ER (“the Children”) are to reside with the Respondent Mother.
The Respondent Mother is solely responsible for the day to day care welfare and development of the Children.
The Applicant Father have contact with the Children only in accordance with their wishes and as otherwise agreed between the parties.
The Applicant Father is to keep the Respondent Mother informed at all times of his contact details, including a telephone number.
The Respondent Mother is to facilitate any telephone contact with the Applicant Father requested by any of the Children at the telephone number nominated by the Applicant Father as soon as practicable after any request is made.
The Respondent Mother is to keep the Applicant Father informed at all times of contact details for the Children, such details to include a telephone number at the discretion of the Respondent Mother.
That the Applicant Father may send parcels and letters to the Children to the contact details nominated by the Respondent Mother on the following occasions and at no other time without the prior consent of the Respondent Mother or unless in response to correspondence initiated by any child:
(a)Each child’s birthday
(b)Christmas and New Year
(c)Fathers Day (September)
(d)Rakhi (13 April)
(e)Devali (mid November)
The Respondent Mother is to use her best endeavours to ensure that the Children acknowledge in writing to the Applicant Father the receipt by them of any parcel or letter addressed to them in accordance with Order 8 herein.
The Respondent Mother is to keep any parcel or letter addressed to any child not sought to be kept by that child until that child turns 18 at which time they are to be provided to that child.
The Respondent Mother is to forward copies of all school reports received in respect of each child and may delete contact details, including the name, of the school.
The Applicant Father is restrained from entering any school attended by the Children whenever any of the Children are in attendance.
The Respondent Mother is to notify the Applicant Father as soon as practicable of any medical condition of any child that requires hospitalisation.
The Respondent Mother is not to denigrate the Applicant Father or any member of his family to any of the Children.
The matter is otherwise removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM3040/2001
| JS |
Applicant
And
| SR |
Respondent
REASONS FOR JUDGMENT
The Proceeding
The Applicant Father seeks orders in an Amended Application, filed 15 December 2003, for contact with the children of the parties, MR, HR and ER (“the Children”).
The Applicant Father relies on his Affidavit sworn 30 November 2004.
The Respondent Mother seeks orders in an Amended Response, filed 6 December 2004, for, inter alia, the dismissal of the Applicant Father’s Application for contact other than at such times and in such manner as desired by the Children.
The Respondent Mother relies on her Affidavit sworn 2 December 2004 and that of her husband GR sworn 22 November 2004.
A Separate Representative was appointed to represent the interests of the Children and a Family Report was prepared by a court appointed counsellor, Ms Vardenega (“the Court Counsellor”) on 29 November 2004.
Both parties, GR and the Court Counsellor were all cross examined by each other party and the Separate Representative. I am satisfied each party attempted to give the most reliable evidence they could from their perspective.
The facts
It is common ground that the Applicant Father has had no contact with the Children since 8 December 2003, except for the interviews conducted by the Court Counsellor for the purposes of the preparation of a Family Report on 22 November 2004. The contact until that date is disputed between the parties.
The parties married in India on 24 August 1986 and separated in May 2000 and divorced on 22 October 2001 although the parties lived under the same roof until July 2001.
The Respondent Mother asserts that she was the primary carer for the Children at all times during her relationship with the Applicant Father. The Applicant Father asserts that in 1995 his mother came to Australia to assist with the Children at which time the Respondent Mother returned to work.
The Respondent Mother cites a history with the Applicant Father of verbal denigration that would occasionally degenerate into physical abuse such as pulling her hair and slapping. The Respondent Mother states that her marriage to the Applicant Father was arranged by her family and that she was forced by her family to return to India to marry the Applicant Father.
On 29 September 2002 Apprehended Domestic Violence Orders (“ADV orders”) were made in respect of the Applicant Father for a period of 2 years arising out of an incident on 21 April 2002 where the Applicant Father attended the premises of the Respondent Mother to deliver the Children home and smashed a window to gain entry into the premises.
The Applicant Father states the purpose of the entry was to obtain jumper leads and that he was accompanied by the Respondent Mother’s father and brother. However, I note the evidence of the Respondent Mother that she has been estranged from her family since separation. Accordingly, I am not satisfied that the presence of the Respondent Mother’s father and brother would have provided the Respondent Mother with any comfort or support in the circumstances.
The Respondent Mother paints a more violent and aggressive episode in which the Applicant Father had forced his way into the house, pushed her around, left and then attempted to regain entry by smashing the side bedroom window. GR gave evidence that he arrived home and found the Applicant Father on the premises and the Applicant Father said to him:
“I will break your legs”
and then began abusing the Respondent Mother.
I make no finding as to the exact circumstances of the episode, save that it involved the smashing of a window by the Applicant Father on the premises of the Respondent Mother and her husband, without their consent, in circumstances that resulted in ADV orders against the Applicant Father being made by the Local Court for a period of 2 years.
The Applicant Father stated that thereafter he had contact with the Children at least 8 times during 2003.
The Respondent Mother stated that the Children had contact on only 3 or 4 occasions after the incident on 21 April 2002. She stated that the Children would return concerned and distressed at the conclusion of these contact periods and would be difficult to settle down in terms of their behaviour following such contact periods.
The Respondent Mother stated that the Children said to her that they did not want to see their father and complained that:
“Dad drinks beer in the car when he is driving.”
The Respondent Mother states that since contact ceased in December 2003, the Children have become more settled and their academic performance has increased significantly. The Respondent Mother states that she has regularly raised with the Children whether they would like to see their father and that they have consistently said that they wished to have no contact and she was not prepared to force contact against their wishes.
During the marriage the Applicant Father spent significant time away from the Respondent Mother in Alice Springs hospital in order to complete his qualifications in Australia as a medical practitioner. The Applicant Father acknowledges that between 1987 and 1990 the Respondent Mother worked and supported both parties whilst the Applicant Father underwent his training.
It is common ground that the Applicant Father spent significant periods away from the Respondent Mother and the Children generally for the purposes of study or work.
The Applicant Father stated that after MR was born he was “forced” to leave Alice Springs and return to Sydney to assist the Respondent Mother. It is revealing that the Applicant used the word “forced” to describe his return to the Respondent Mother. One might have thought he would be anxious for any opportunity to return to his wife and new son. The Respondent Mother stated that the Applicant Father spent little time interacting with the Children and exhibited little interest in them during the period of the marriage. The Applicant Father’s use of the word “force” would seem to be consistent with that attitude.
In October/November 2003 the Respondent Mother commenced cohabitation with GR whom she subsequently married.
However, on 8 July 2003 the Respondent Mother obtained an order from the Local Court at Campbelltown changing the Children’s surname from S to R following the adoption of that surname by herself at around that time. The order was made by the Local Court ex parte where service had not been effected upon the Applicant Father providing him with any opportunity to oppose the making of such an order.
The Respondent Mother stated that when she told the Children she was intending to change her surname to R that the Children said that they also wished to have their surnames changed to R. She agreed in cross examination that she did not seek to persuade the Children from that course.
It is of great concern that the Respondent Mother would take such a significant step prior to the commencement of her cohabitation with GR and without serving the Applicant Father with her application for a change of name in respect of the Children thereby ensuring notice to him of her application. Such a step is reflective of an attitude in the Respondent Mother that does not recognise a benefit to the Children in sharing with pride the name of their natural father.
Sadly this attitude is at the heart of the dispute between the parties and has resulted in the Children aligning themselves completely and absolutely with the new life of their mother and GR with no room for recognition of any benefit by the Respondent Mother or the Children in having contact with the Applicant Father.
The Court Counsellor confirms a disturbing lack of awareness by the Respondent Mother in recognising any damaging effect on the Children of their:
“polarised disdain of their father and their need to vehemently reject him.”
This lack of awareness was also apparent in the Respondent Mother during her evidence in the witness box. She was very much of the view that the Children had nothing to gain by maintaining a relationship with the Applicant Father and she had little interest in fostering contact following, at least, the incident on 21 April 2002.
The Court Counsellor stated that the Respondent Mother’s assessment that the Children would be unsettled by contact with their father:
“suggests that the Children are suffering considerable internal turmoil in respect of feeling a need to align themselves with their mother and their antipathy towards their father”.
The Court Counsellor further identified in the Children an inability to identify any positive memories of the Applicant Father and stated that such inability was “atypical”. She expressed concern that in the long term:
“the lack of attention to this deeply rooted antagonism may be detrimental to their emotional development”.
The Family Report went on to recommend professional assistance for the Children through the Keeping Contact program provided by Unifam.
Orders were made on 15 December 2004 at the conclusion of Day 2 of the hearing, that, between that date and the continued hearing of the matter on 19 May 2005, the Respondent Mother be required to contact Unifam to make an appointment for the Children and to ensure that the Children attend, enrol, participate and complete any course of Counselling advised or directed by Unifam. Both parties were also ordered to attend any counselling appointment organised by Unifam.
The evidence before me today has been that the Respondent Mother and GR attended 2 or 3 appointments as did the Children. However, the highest that the Respondent Mother would place the benefit of such counselling was that it was “a little bit helpful”.
The Respondent Mother stated that the Children did not wish to participate in a school holiday program suggested by Unifam and that whilst she had hoped that the counselling would produce in the Children a more positive attitude towards contact with their father this in fact was not the result.
The Separate Representative confirmed the Children’s steadfast attitude in resisting any contact with their father in interviews with the Children on 7 April 2005.
Prior to the Unifam counselling the Court Counsellor stated on 15 December 2004 that she was of the view that the gap between the Children and the Applicant Father is:
“just too wide for them to bridge”.
It would appear that the counselling that has occurred was not able to make any:
“mental shift in the Children’s attitude to their father”
that it was hoped may be achieved.
Indeed the Court Counsellor stated in evidence today that endeavouring to bridge the gap between the Applicant Father and the Children by forcing contact was like exposing the Children to a minefield that they had no ability to navigate.
The Court Counsellor expressed the view that she did not know how healthy it would be for the Children to have any contact that was forced and she was at a loss to see how such contact could work in the best interests of the Children. Her view was the same in respect of each of the Children.
The Court Counsellor stated that, whatever may have been the impetus, the level of hostility standing in the way of contact now makes it difficult to make contact even operational.
If the Respondent Mother’s antipathy to promoting contact was resolved, the Court Counsellor suggested supervised contact at a contact centre fortnightly for 2 hours may be a possibility, although this could plainly not go on indefinitely. However, even with an enlightened attitude of the Respondent Mother the Court Counsellor remained pessimistic of the effectiveness of that course as an option. She stated that the Children were likely to attend the contact centre and sit in opposite corners to the Applicant Father plainly continuing to reject their father as they had in their interview with her.
In evidence on the 15 December 2004, the Court Counsellor referred to the damage that this kind of emotional baggage can have on the long term development of the Children, including the possibility of depression, anxiety, taking this baggage into their adulthood and having history repeat itself.
However, despite the existence of the possibility of that damage the Court Counsellor expressed today (19 May 2005) the firm opinion that she was still unable to recommend contact.
The law
In considering those matters identified in s.60B of the Family Law Act I have particular regard to s.60B(2)(b) which states that children have a right of contact on a regular basis with, inter alia, both their parents. That principle is expressly made subject to the child’s best interest and is to be read as directed to effectuating the object of Part VII of the Family Law Act as identified in s.60B(1).
The Full Court of the Family Court of Australia in B and B Family Law Reform Act 1995 (1997) 21 FamLR 676 at 727, in discussing s.60B(2) noted:
“It cannot be regarded as an exhaustive list of principles which underlie the object in s.60B(1) or the child’s best interest. There are a number of other matters which may in particular cases be equally or more important but which are not expressly contained in subsection (2), such as the wishes of the children (my emphasis) and their right to be protected from abuse.”
Their Honours referred to the passage in M & M (1998) 166 CLR 69 at 76 where the High Court in a joint judgment stated:
“The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents.”
The Full Court in B and B sought to temper the passage referred to above as follows:
“But it is equally recognised that there may be cases where the best interests of the children require that contact with one and on some occasions both parents be curtailed or even terminated. If the facts dictate that such an outcome is the appropriate one in the child’s best interests there is nothing in s.60B which suggests or requires any different outcome.”
The Full Court in B and B states that it is now well accepted that in “most cases” meaningful contact by children with their parents is important to their welfare both in the short and long term. The question in the case before me today is whether or not it fits with “most cases”. The strength of the antagonism expressed by the Children towards the Applicant Father and the strength of their expressed wishes for no contact would seem to remove this case from the category of “most cases”.
In the Marriage of P A and J A Litchfield (1987) 11 FamLR 435, Mullane J dismissed a husbands application for contact with his 10 year old daughter where he was satisfied that the stress caused to the child by contact occurring outweighed any general or theoretical advantage of contact. In coming to that conclusion his Honour had regard to the principle identified by Wrangham J, with whom Latey and Dunn JJ agreed, in M & M [1973] 2 All ER 81 at 85 and 88 where his Honour stated:
“Where the parents have separated and one has care of the child, access by the other often results in some upset to the child. These upsets are usually (my emphasis) minor and superficial. They are heavily outweighed by the long term advantages to the child of keeping in touch with the parent concerned so they do not become strangers…Not that a parent has any proprietorial right to access but that save in exceptional circumstances (my emphasis) to deprive a parent of access is to deprive a child of an important contribution to his emotional and material growing up in the long term.”
In applying those principles Mullane J in Marriage of Litchfield concluded:
“the welfare of the child is paramount and if access is against the interests of the welfare of the child it should not be ordered; regardless of how unfair or cruel it might be to the parent seeking it.”
Section 60B is subject to and to some extent overlaps with s.65E of the Family Law Act which states as follows:
In deciding whether to make a particular parenting order in relation a child a court must regard the best interests of the children as the paramount consideration.
In determining what is in the child’s best interests s.68F(1) provides that the Court must consider the matters set out in s.68F(2).
I now turn to consider the factors pursuant to s.68F(2) of the Family Law Act in determining what orders should be made in the best interests of the children, having regard to the evidence before me.
(a) Any wishes expressed by the Children
The Children expressed firm views to the Court Counsellor that they did not wish to have any contact whatsoever with the Applicant Father. MR said he did not want to see his father, could not recall what he looked like even though it was only 18 months since he had last seen him and did not recall what they discussed. He told the Court Counsellor that his father occasionally brought his grandmother with him on contact visits and on one occasion his grandmother told him to:
“hit his new dad cause he’s bad”.
MR otherwise referred to GR as “dad”.
MR pulled away from the Applicant Father when he touched him on the shoulder during the interview. The Applicant Father denied this in cross examination. I do not find the Applicant Father’s evidence to be dishonest, rather it is demonstrable of the lack of insight and perception he has with respect to the Children’s attitude towards him.
HR was generally critical of the Applicant Father and said that GR was now her “dad”. She said she loved her mother the most and that she is “kind” and “beautiful”.
ER said he could not remember the Applicant Father but that he now has a “good dad”. He drew a picture of his family including his siblings, mother and GR walking along the beach holding hands.
None of the Children would accept the gifts offered at the interview by the Applicant Father and, according to the Court Counsellor, responded to him in a:
“curt dismissive monosyllabic way and avoided eye contact”.
None responded when the Applicant Father said goodbye until prompted by the Court Counsellor when they gave:
“an offhand wave and an abruptly said goodbye to him”.
Both HR and ER referred to the Applicant Father hurting their mother, pulling her hair and making her cry. MR raised this conduct with the Applicant Father who responded by telling the Children that their mother was a liar.
The Respondent Mother denies criticising the Applicant Father’s behaviour to the Children and that each had witnessed such conduct themselves. However, the Court Counsellor suggested that some of the descriptions provided by the Children about the Applicant Father being “lazy” are unlikely to have occurred to the Children unprompted as they are not the usual descriptors of that conduct by children of the ages of these Children.
The Court Counsellor concluded that the actions of the Respondent Mother as reflected in her “highly critical stance” towards the Applicant Father make it improbable that the Children would express any desire to have contact with the Applicant Father without feeling disloyal to the Respondent Mother.
The Respondent Mother was adamant in cross examination that she was not opposed to the Children having contact with the Applicant Father if they expressed such a wish but that to date they were steadfast in their wish not to have contact and she would not force contact on them in those circumstances.
The Applicant Father submits that the Children have been alienated from him by the Respondent Mother and that he had had close relationships with them and participated in their lives prior to separation.
Indeed the Applicant Father annexes to his Affidavit evidence drawings he says were done for him by MR in 2002 and 2003. The Respondent Mother claims that MR denied to her that the drawings were his. The Applicant Father had contact with the Children following separation in 2001 and until the ADV orders in September 2002. The drawings appear to be very childlike and it is quite possible that MR does not now recollect drawing them. In any event, in considering what orders to make I have accepted that the drawings were done by MR and reflect a love felt by MR towards his father at that time. However, I am not satisfied that they represent MR’s current feelings towards the Applicant Father.
In cross examination by the Separate Representative, when asked if he had any explanation as to why the Children would express the views they expressed to the Court Counsellor about contact, the Applicant Father said he was disappointed about what he was told by the Court Counsellor. When asked if he may have contributed to the way the Children feel about him, he answered:
“Not sure, could be”.
When asked why, he said it was because he had had no contact for more than a year and that it was the fault of the Respondent Mother and GR. However, he agreed that as a matter of practicality it was unlikely that the Children would react differently in contact from the behaviour in the interview with the Court Counsellor. He did not disagree that the Children appeared not to wish to have any contact with him.
Accordingly, I find that at present each of the Children has expressed a strong and unequivocal desire not to have any contact with the Applicant Father against their wishes.
(b) The nature of the relationship of the Children with each of the Children’s parents
Each of the Children remain hostile and antagonistic towards the Applicant Father.
Of great concern is the Court Counsellor’s conclusion that:
“the children are suffering considerable internal turmoil in respect of feeling a need to align themselves with their mother and their antipathy towards their father and inability to identify any positive memories of him are atypical”.
Of greater concern is that there appears to have been no amelioration by the Children in their antipathy following the counselling that occurred during the adjourned period.
Despite the concerns, the Court Counsellor was unable to submit that any contact other than that at the instigation of the Children, including telephone contact, would be in the best interests of the Children having regard to the degree of alienation between the Children and the Applicant Father. The Court Counsellor said in evidence that to force contact would be akin to pushing the Children into a minefield that they were otherwise incapable of navigating.
That view was echoed in the submissions of the Separate Representative.
Accordingly, I find that, at present, there is nothing healthy or functional about the relationship between each of the Children and the Applicant Father.
The alignment of the Children with their mother and GR is complete.
I have seen both the Respondent Mother and GR in the witness box. I accept the evidence of both in relation to their description of the family life they share with the Children. I find that the relationship that the Children have with each is loving, supportive, stable and functional.
(c) The likely effect of any change in the Children’s circumstances, including the likely effect on each child of any separation from either parent
Whilst concern has been expressed by the Court Counsellor as to the possible long term damage to the Children’s ultimate emotional welfare and development in the event they have no relationship or contact with the Applicant Father, the Court Counsellor has also expressed concern at the likelihood of damage to the Children’s present stability and family unit if contact is forced on the Children with their present attitude towards the Applicant Father.
To that end the Court Counsellor suggested in the Family Report the counselling through Unifam that has now occurred without success.
I cannot ignore the great benefit that presently exists for the Children in the secure family environment they share with their mother and GR. I accept that each of the Children is studious, obedient, responsible, respectful, loyal and loving with each member of their present family unit.
I accept the evidence of the Respondent Mother and GR of the pride they feel in sharing GR’s name and their desire to jealously guard their family unit to the extent of not wishing to have it known amongst their friends that GR is not their biological father. I do not, however, accept that it was an appropriate course of conduct on the part of the Respondent Mother. Nevertheless it has now been almost 2 years that she and the Children have used the surname R to represent to the world their familial relationship with GR, thereby making any forced re-entry of the Applicant Father into the Children’s lives even more difficult.
However, the Applicant Father cannot absolve himself of all responsibility for the Children’s poor memories of him. I accept the evidence of the Respondent Mother that their marriage was littered with episodes of violence and humiliation and that MR, at least, was witness to some of those episodes.
I further accept that MR was certainly of an age to recall his experiences with the Applicant Father prior to the parties separation and one cannot ignore the possibility that he may have contributed unwittingly to some of HR’s and ER’s critical “memories” of the Applicant Father and their present attitude.
Accordingly, I find that on balance the Children are more likely to suffer damage by the intrusion and disruption to their present family unit by forcing contact with the Applicant Father upon them whilst their antipathy towards their father remains at its present level.
It is to be hoped that in time the Children may wish to commence contact and that any damage occurring as a result of no contact will be minimised where the Children know that their father remains available to them should they choose to initiate contact in the future. Any such damage may be further minimised particularly where the Children can be secure in their confidence that any such desire for contact would be supported and facilitated by their mother and GR in accordance with their wishes.
(d) The practical difficulty and expense of the Children having contact
Not relevant.
(e) The capacity of each parent to provide for the needs of the Children, including emotional and intellectual needs
Sadly, it is the conclusion of the Court Counsellor that the Applicant Father is presently not capable of providing for the emotional needs of the Children. It is also the submission of the Separate Representative. In cross examination the Applicant Father appeared not to comprehend the difficulties faced by the Children in him seeking to force contact upon them and by appearing with no prior warning at their school. He does not yet accept that his behaviour may be responsible in any large part for the Children’s present attitude towards him.
Accordingly, I am not satisfied of any capacity in the Applicant Father at present to provide for the emotional needs of the Children.
Having regard to the part played by the Respondent Mother in the alienation of the Children from the Applicant Father, I remain concerned about the Respondent Mother’s rejection of the Applicant Father as having anything at all beneficial to offer the Children. However, I accept her evidence today (19 May 2005) that should the Children wish to have contact she will support and facilitate their wish. Otherwise I am satisfied that she and GR provide for the needs of the children, including emotional and intellectual.
(f) The maturity, sex and background of the Children
Not relevant as there is no issue raised by either party.
(g) The need to protect the Children from physical or psychological harm
Neither party has sufficient insight into the consequences of their behaviour in relation to any psychological harm that may result in the children from their conduct to each other.
I note the Family Report where the Court Counsellor recounted the confrontation by MR of the Applicant Father seeking an explanation in respect of his conduct towards the Respondent Mother.
The Applicant Father’s response to MR was that the Respondent Mother was a “liar”. The Applicant Father confirmed in cross examination that he used those words.
Knowing the hostility of the Children towards him, it is extraordinarily lacking in insight and sensitivity of the Applicant Father to seek to attack the Respondent Mother to the Children, particularly where it is the Children’s perception of his attacks on their mother that are largely responsible for their alienation and hostility towards him.
The Respondent Mother on the other hand accepted without challenge to the Children their wish to change their surname to that of GR before the Respondent Mother had even established a long term relationship with GR. Otherwise see generally comments above.
(h) The attitude of each parent to the Children and the responsibilities of parenthood
See above.
Any family violence involving the Children or a member of the Children’s family
Both the Respondent Mother and the Children raise allegations of violence by the Applicant Father towards the Respondent Mother, including episodes in the presence of the Children. These have been referred to in the evidence above. The Applicant Father denies the incidents in the terms alleged however acknowledges that ADV orders have been entered against him in the past.
(j) Any family violence order applying to the Children or member of the Children’s family
See above.
(k) 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 Children
Not relevant.
(l) Any other factor or circumstance that the Court considers relevant
It is of note that the Applicant Father did not seek to lead evidence from his new wife. It is plainly evidence that would have been relevant and of assistance in the Court’s deliberations were contact to occur. However, the absence of such evidence is not at the heart of my determination as to whether or not contact should occur.
Findings
The Separate Representative submitted that in accordance with the evidence, particularly that of the Court Counsellor, there should be no physical or telephone contact unless sought by the Children. However, the Separate Representative submitted that the Applicant Father should be permitted to send letters and parcels to the Children on significant occasions, that the Children should at all times have access to the Applicant Father’s contact details, that the Children should be facilitated by the Respondent Mother in initiating any telephone contact if so desired, that the Respondent Mother should forward copies of the Children’s school reports and notify the Applicant Father of any medical condition of any of the Children requiring hospitalisation.
It is difficult to see how forced contact of any nature is in the best interests of the Children where their alienation from the Applicant Father is so entrenched. The Court Counsellor opines that the high level of hostility of the Children towards their father and their complete rejection of him is “atypical”.
I find, in accordance with the Court Counsellor’s evidence, that the Children’s hostility towards and rejection of their father as “atypical”. Further, I find that the circumstances of the present relationship between the Applicant Father and the Children which are “atypical”, namely, the level of the entrenched hostility and rejection and the Children’s vehement resistance to any form of contact, even following counselling, are “exceptional” (See in the Marriage of Litchfield) and therefore not typical of “most cases” (See B and B). This attitude of the Children was confirmed by the Separate Representative in interviews held with the Children on 11 April 2005.
I find that, in those circumstances, forced contact is likely to involve trauma and distress for the Children on every occasion with no evidence of any ability of the Applicant Father to be able to address such distress and trauma in any constructive way.
In accordance with the authorities referred to above, one must balance the damage of that stress and trauma to the Children in participating in contact against their wishes with any benefit of forcing contact, namely avoiding the possibility of the long term damage to the Children if there is no contact, as referred to by the Court Counsellor.
It would be hoped that any long term damage to the Children from a failure to have contact would be minimised where the Children know:
a)that their father is available to them and they have access to him at any time;
b)that by sending them parcels on significant events they remain in his thoughts;
c)that they are supported by the Respondent Mother and GR should they seek contact with the Applicant Father;
d)that their father fought to have contact with them;
e)that the minimal nature of the contact is pursuant to court orders not sought by their father.
There is little, if any, evidence before me that if contact was to be forced it would in any way operate in the best interests of the Children in the short term, at least.
I am satisfied that the Children are likely to continue to reject their father and only resent him all the more for forcing contact upon them knowing it is against their expressed wishes. Where that consequence is likely, then forcing contact is highly unlikely to be constructive or conducive to the forging of any healthy relationship between the Children and the Applicant Father.
I have had regard to the right of the Children to have contact with the Applicant Father as identified in s.60B(2)(b).
There is no evidence before me to suggest that any further counselling, where counselling has been tried and failed, is likely to shift the Children’s attitude to the Applicant Father.
I find that forcing contact upon the Children in light of the vehemence of their opposition to such contact (and confirmed by both the Court Counsellor and the Separate Representative) is likely to inflict upon the Children a degree of stress and trauma that outweighs any benefit of contact against the Children’s wishes, including the possibility of long term damage to the Children through lack of contact.
At this point, time and respect for the Children’s wishes would seem to be the only friends to the resurrection and establishment of any relationship between the Children and the Applicant Father.
Accordingly, having regard to all the evidence before me and the submissions by all parties, both written and oral, I find on balance that it is in the best interests of each of the Children to have contact, including telephone contact, with the Applicant Father in accordance only with their expressed wishes.
However, I am satisfied that the Applicant Father ought to be permitted to send parcels and letters to the Children on significant occasions, unless the Children otherwise initiate such correspondence. The Respondent Mother is to ensure that the Children acknowledge in writing to the Applicant Father the receipt of any such parcel or letter.
To ensure that the Children are aware as adults of efforts made by the Applicant Father to correspond with them and be available to them, I am of the view that it would be desirable for the Respondent Mother to be required to keep any parcels and letters sent to the Children by the Applicant Father on significant events until that child is 18 years old. As each child turns 18 parcels and letters sent to that Child from the Applicant Father should be given to them for their keeping. Of course, should any of the Children wish to retain or have access to them earlier they may.
In time it would be hoped that the children are able to develop a pride in the heritage they have from both their parents and know that each has sought to love them to the best of their ability.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 24 May 2005
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