Sabin and Francis
[2008] FMCAfam 1411
•23 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SABIN & FRANCIS | [2008] FMCAfam 1411 |
| FAMILY LAW – Children aged 13 & 11 – best interests – weight to be given to views of children – whether children have been coached – family violence – presumption of equal shared parental responsibility – whether presumption rebutted – assessment of level of insight into responsibilities of being a parent. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Relationship K (1994) FLC 92-461 Francis & Sabin [2008] FMCAfam 1410 |
| Applicant: | MS SABIN |
| Respondent: | MR FRANCIS |
| File Number: | ADC 515 of 2008 |
| Judgment of: | Brown FM |
| Hearing dates: | 9 & 10 December 2008 |
| Date of Last Submission: | 10 December 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 23 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | In person |
| Counsel for the Independent Children’s Lawyer | Mr Bowler |
| Solicitors for the Independent Children’s Lawyer | Legal Services Commission |
ORDERS
That all existing orders be discharged.
That the mother have sole parental responsibility for the children [D] born in 1995 and [K] born in 1997.
That the children live with the mother.
That the children spend time with the father as follows:-
(a)during school terms on every third weekend from 10am on Saturday to 6pm on Sunday with such time to commence on the first weekend of each school term;
(b)during the April, July and September/October school holidays from 5pm on the second Friday to 5pm on the following Tuesday;
(c)during the Christmas school holidays from 5pm on the first Friday to 5pm on the following Tuesday and during the same period in each alternate weekend thereafter;
(d)
from 2pm on the 25th December 2008 to 6pm on the
26th December 2008 and during the same period in each alternate year thereafter provided that the children shall live with the mother from 2pm on the 24th December 2008 to 2pm on the
25th December 2008 and during the same period in each alternate year thereafter;
(e)
from 2pm on the 24th December 2009 to 2pm on the
25th December 2009 and during the same period in each alternate year thereafter provided that the children shall live with the mother from 2pm on the 25th December 2009 to 2pm on the
26th December 2009 and during the same period in each alternate year thereafter;
(f)from 10am to 6pm on Father’s Day in each year provided that if Mother’s Day falls during a period when the children are spending time with the father then that time shall be suspended from 10am to 6pm on Mother’s Day;
(g)from 10am to 6pm on Easter Sunday each year;
(h)on the child [D]’s birthday from 10am to 6pm and on the child [K]’s birthday if a non-school day from 10am to 6pm and if and if a school day from 4pm to 7pm;
(i)that all handovers occur at the Children’s Contact Service at [H] provided that if that service is not available then handovers occur with the mother delivering the children to the father’s home at the commencement of time spent and the father delivering the children to the mother’s home at the conclusion of the time spent.
That the time the children spend with the father is accordance with these orders be subject at all times to the wishes of the child [D] and be subject to the wishes of the child [K] once that child attains the age of twelve (12) years.
That the children have telephone communication with the father between 6.30pm and 7.30pm each Wednesday.
That the parties utilise a communication book to exchange information relevant to the welfare of the children, with such book to be exchanged at contact handovers.
That the parties keep each other advised of their current email address and they do email each other with respect to issues relating to the welfare of the children only.
That the appointment of the Independent Children’s Lawyer be discharged.
That all applications be removed from the Acting Pending List.
IT IS NOTED that publication of this judgment under the pseudonym Sabin & Francis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 515 of 2008
| MS SABIN |
Applicant
And
| MR FRANCIS |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Francis “the father” and Ms Sabin “the mother” are the parents of [D] born in 1995 and [K] born in 1997. These proceedings are concerned with final arrangements for the care of these two children.
The parties have been separated for many years. They each acknowledge their relationship with one another is very poor and destined to remain so. They communicate with difficulty, if at all.
There have been other proceedings, between the parties, regarding where [D] and [K] should live and how often they should see their father.
On 16 September 2005, it was ordered that the child should live with their mother and see their father on alternate weekends, during term times; overnight on Wednesday in the other week, during term times; and for half of each school holiday period, as well as on several nominated special occasions.
It is the mother’s position that [D] and [K] have become increasingly resistant to spending time with their father because of his aggressive attitude towards both them and their mother. It is her case that this attitude, on the part of the girls, became more pronounced following an incident between [D] and her father, in November of 2007, when [D] was assaulted by Mr Francis.
It is the father’s position that Ms Sabin has gone to significant lengths, over many years, to undermine his strong and loving relationship with [D] and [K] and has manipulated the girls against him, either to satisfy her own emotional needs or for some other malign purpose.
To this end, it is his case that the mother has opportunistically seized on the incident, which occurred between him and [D], in November of 2007, and blown it out of all proper proportion. He asserts that he was properly disciplining [D], at the time, for some earlier serious misbehaviour on her part. If he reacted improperly, in the heat of the moment, he says he has apologised to [D] for it and made his peace with her.
As such, he denies there is any significant rift between him and either [D] or [K], as a result of what happened. Rather, in the period since, he suggests the mother has coached or manipulated the children to voice a dissent against him, which belongs to the mother rather than to either one of the children.
It is against this background that the mother seeks a significant reduction in the amount of time, which the father spends with the two children. She proposes one short weekend in three, during school terms; and blocks of four days at a time, in school holidays. In addition, it is her case that the children, particularly [D] are now old enough to decide when and if they should see their father.
For his part, the father submits that the only way the children can be protected from the mother’s negative attitude towards him and can continue to have a meaningful level of paternal relationship is if the time they spend with him is dramatically increased at this juncture. He proposes that [D] and [K] should live with each of their parents, on a week about basis, during school terms and for half of each school holiday.
From Ms Sabin’s point of view, this will be diametrically opposed to what [D] and [K] want and has the potential to drive a deeper wedge between the children and their father. It is her case that Mr Francis needs to give the children some space and respond more sensitively and thoughtfully to their needs. She acknowledges that the children love their father but fears that if they are compelled to do something, against their wishes, it will result in [D] and [K] becoming completely alienated from their father.
From Mr Francis’ point of view, if the court does what Ms Sabin proposes, this will see the children lost to him, perhaps forever. He fears that they will fall completely under their mother’s influence and she will continue to “brain wash” them against him, without any opportunity for him to undo her work through positive periods of interaction between him and [D] and [K].
The parties have a fundamentally different view about the nature of their relationship, both before and after their separation. It is the mother’s case that, during the years of the parties’ relationship and afterwards, the father was verbally abusive, violent and domineering towards her and has continued this behaviour towards the children.
As such, it is her case that the children need to be protected from their father and their wishes, in this regard, need to be respected by the court.
The father denies he is a violent and abusive person. He asserts that the mother has never been able to produce any independent corroboration or proof of his alleged misbehaviour towards her, particularly in the form of a medical report or a police statement.
As such, he says her allegations against him are concocted and to the contrary it is she who has been violent and abusive towards him in the past. Behaviour most recently and obviously manifested by her concerted campaign to alienate [D] and [K] from him.
The parties have acted on their own behalf in these proceedings. It is my assessment that the degree of conflict between them is extreme, extending as it has over very many years. As this brief introduction shows, their positions are polarised in the extreme and currently neither can see little, if any, good in the other. As such, the dispute between them can be regarded as intractable in nature.
That being so, in order to protect the children from the worst excesses of their parents’ poor relationship and in order to ensure that their views might be properly represented to the court, I ordered that [D] and [K] be represented independently of their parents in these proceedings.
Two of the relevant criteria, for the appointment of an independent children’s lawyer, in proceedings such as these, are an intractable level of conflict between the parents concerned; and cases where a child of mature years is apparently expressing a strong view, which if implemented, may have significant implications for the level of relationship which that child has with one or other of his or her parents.[1]
[1] See Re K (1994) FLC 92-461
The children’s representative, in this case, is Mr Stephen, an experienced family lawyer, who has regularly represented children in this court in the past. He has briefed a barrister, Mr Bowler, to appear on his behalf in these proceedings and so safeguard the best interests of [D] and [K].
The law requires Mr Stephen and Mr Bowler to formulate a position, based on the evidence available to them, which they think will be in the children’s best interests. Mr Bowler supports the position advocated by the mother.
Mr Bowler does not think it would be in either [D] or [K]’s best interests if the time they spend with their father is extended. Rather it is his view that, in order to protect the children and ensure that they have some level of relationship with their father in their maturity, the time needs to be reduced.
In holding this view, Mr Bowler has been strongly influenced by the evidence of two psychologists, Mr Trevaskis and Mr Vidot, who have previously interviewed both [D] and [K], in respect of what their views are regarding spending time with their father in particular and their attitude towards him generally.
Besides being psychologists, both Mr Vidot and Mr Trevaskis are experienced family consultants, who regularly provide expert reports to the court regarding the best interests of children, very often in situations of high conflict and dispute between their parents.
Mr Vidot saw the children more recently, in October of this year. He believes the children’s views are clear and maturely held and neither child has been improperly or unduly influenced by their mother. Both [D] and [K] have told Mr Vidot that their preference is to spend less rather than more time with their father.
Mr Vidot has proffered the expert opinion that, if either child feels her opinion has been repudiated by the court or the parents’ concerned in this case, it is likely to have significant consequences for their (the children’s) long term emotional wellbeing.
Mr Vidot feels that such an outcome will have significant consequences for the children’s level of self confidence and self esteem, which in turn will impact negatively on the level and type of relationship, which both [D] and [K] will have with their father, perhaps indefinitely.
Regrettably, Mr Vidot formed a negative opinion of Mr Francis, particularly regarding his level of insight into responsible parenting. It was his view that Mr Francis completely lack insight into the consequences of his behaviour and the psychological effects it had on both children, particularly [D]. Mr Vidot described the father as being inflexible and uncompromising in respect of his attitude towards both the mother and the children.
Mr Francis urges the court to be cautious about Mr Vidot’s report, which he (Mr Francis) categorises as a “snapshot” taken over a very brief period of time. In such circumstances, he says it is impossible for either Mr Vidot himself or the court to rule out the possibility that the children were merely doing their mother’s bidding, to Mr Vidot, and repeating to him what she had told them to say.
This is the central evidentiary issue in this case. Mr Vidot did not find any evidence that the children had been manipulated. Rather, he thought the children’s emotional affect, one of sadness, during interview with him, was congruent with how they described their unhappy experiences of spending time with their father.
It is Mr Francis’ case that, if the children were sad, it was only because they were crestfallen at being required to lie to Mr Vidot and effectively slander their good relationship with their father. In support of his position, he points to the fact that Mr Vidot concedes that, at the end of the children’s interview with Mr Vidot, they each spontaneously hugged their father.
Ms Sabin believes that the children have frankly and fearlessly expressed their own views to Mr Vidot and his report is an accurate representation of [D] and [K]’s views. As such, Ms Sabin contends that Mr Vidot has “hit the nail on the head” so far as his recommendations concerning the children.
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine what the care arrangements for their children should be, it is the best interests of the children concerned which are paramount.
Background
Mr Francis began this current round of proceedings with a contravention application filed on 11 February 2008. He alleged that the mother had failed to provide [D] and [K] to spend time with him from 14 January 2008 onwards, in clear contravention of the orders of 16 September 2005. His application was made returnable on 3 March 2008.
In his affidavit, in support of the contravention application, Mr Francis claimed that Ms Sabin had said to him that neither child wanted to spend time with their father because of an incident which had occurred between him and [D] around six weeks earlier.
Mr Francis deposed that Ms Sabin had telephoned him, on 11 January 2008 and abused him about the incident, which was the first he had heard about its alleged significance, so far as the children were concerned.
Mr Francis deposed that he was sceptical about any assertion, on the mother’s part, that the children did not want to spend time with him, as both [D] and [K] had earlier spent an extended period of time with him over the Christmas period. It was his view that it was only much later that Ms Sabin had learnt about what he categorised as a minor incident between him and [D], via [K], which had caused her (Ms Sabin) to over react.
In his affidavit, he acknowledged that he had attended at the mother’s home on 8 February 2008 to remonstrate with her about her conduct. An ugly altercation occurred. It is the father’s case that the mother jostled and abused him. As has been the father’s previous practice, he tape recorded what the mother said to him.
Given this background and the ages of the children concerned, on 3 March 2008, I ordered that both parties and the children concerned should attend a family dispute resolution conference, pursuant to section 11F of the Family Law Act. I hoped that such an intervention would possibly allow the existing orders to be put back on track and, if necessary, the father could make his peace with [D] in a controlled setting.
The family consultant concerned, Dr Savage recommended that the father and children should attend a process of mediation/counselling together. She thought that one of the programs offered by Centrecare might be appropriate.
Dr Savage also thought it advisable, in the short term, that the time the children spent with their father should be reduced. With some reluctance, Mr Francis was prepared to agree with this recommendation.
Accordingly, on 23 April 2008 I ordered that the two children concerned should spend time with their father, on alternate weekends from 9:00am Saturday to 6:00pm the following Sunday. I also ordered that the two children and Mr Francis should attend the process of counselling recommended by Dr Savage.
Given the unfortunate altercation between the parties, which had occurred outside the mother’s home, I also ordered that the parties should enrol at the [H] Children’s Contact Centre so that the children could be exchanged between the parties in a controlled and neutral setting.
Unfortunately, the extensive process of counselling envisaged by
Dr Savage did not take place. Mr Francis attended one appointment with the children. I am satisfied that he was not prepared to persevere because he did not believe that it was either warranted or likely to be helpful to him.
The matter returned to court. Mr Francis was insistent that his contravention application be dealt with. Up to this stage, Ms Sabin had not filed any application on her own behalf. In particular, she had not sought that the earlier orders be significantly altered.
As has been the case throughout, neither party had access to a solicitor. My impression of the father is that he is suspicious of any therapeutic approach to resolving the issues in this case. My impression of the mother was and remains that she is emotionally vulnerable and wearied by what she sees as the father’s unreasonable and dogmatic insistence that she be brought to task for her failure to follow court orders.
This was the background to the contravention proceedings, which were heard on 16 July 2008. The hearing was unsatisfactory in many ways. Its major draw back was that I was not provided with any independent assessment of either child’s emotional state and more importantly what their views were in respect of what was patently a severely compromised parenting relationship between Mr Francis and Ms Sabin.
I suspected that both parties might be incapable of providing a reliable and objective account of what the children’s views were but rather viewed these matters through the distorting prism created by their marked hostility for the other parent.
My findings in respect of the contravention have been transcribed.[2] Neither party provided their evidence in a particularly clear or coherent way. It was regrettable, in the extreme, that former partners were required to cross examine each other, in the formal circumstances provided by the court setting. Regrettably, this cross examination frequently devolved into a circular and self defeating rote of argument between them.
[2] See Francis & Sabin [2008] FMCAfam 1410
It was clear to me, at the time, that there had been an incident between [D] and her father. Ms Sabin herself had no personal knowledge of it and it was also obvious that she had not learned about the incident until some significant time later.
In the intervening period, both children had apparently gone to spend time with their father without demure. In these circumstances, I determined that the mother could have been more proactive about taking steps to reinstate the children’s relationship with their father than she had been from mid-January onwards. I also found that her behaviour, on 8 February 2008, had not been without reproach.
For those reasons, I found the contravention established and placed the mother on a recognisance to be of good behaviour for a period of six months, with the condition that she obey all orders of the court regarding arrangements for the care of the two children concerned.
However, the contravention proceedings did not get to what was the real nub of the case – what really happened between the children and their father in November and what were the children’s true views about their father and their relationship with him.
Accordingly, on 16 July 2008, I directed that each party file an application in which they formally set out how the existing orders should be modified to best serve the interests of the children concerned.
I also ordered that Mr Trevaskis, an experienced family dispute consultant, prepare a short family report to address the wishes of [D] and [K] and particularly whether there should be a return to the orders made September 2005, so far as the time the children spent with their father was concerned and indeed whether an order should be made to make up the time the father had lost spending with the children, as a result of what had occurred since January 2008 onwards.
Given my uncertainty about how the children were coping and my apprehension about the extreme level of conflict between Mr Francis and Ms Sabin, readily apparent to me from their interaction with one another in the court setting, I was unwilling to automatically reinstate the earlier “contact” provisions, until I had had some independent assessment of the children.
Mr Trevaskis saw [D] and [K] on 21 August 2008. [D] indicated some level of resentment that her mother was “being taken to court for something I did… when Dad was at the door he was told by me that I didn’t want to go … I feel bad that Dad’s trying to get Mum into trouble.”.
[K] reported to Mr Trevaskis that her parents fought with one another and [D] fought with her father. She said that she found this frightening. More importantly, she said to Mr Trevaskis that she had told her father she was scared of his behaviour. Both children reported that if they complained to their father about his behaviour, he told them that their mother was poisoning them against him.
Mr Trevaskis was concerned at the possibility that the children may have been inappropriately influenced by their mother as a result of the tenor of their criticisms of their father. However, this initial impression was dispelled and overall it was Mr Trevaskis’ view that the children were anxious to get their views across to him and both were “angry and frustrated” about their father’s behaviour.
In the earlier reasons for judgment, I set out my findings in resect of the alleged “kicking” incident between Mr Francis and [D]. It was
Mr Francis’ evidence that he had at worst “nudged [D] up the bum”, with his foot, as a result of her rude and disrespectful behaviour.
It was his case that [D] had soon come to terms with the incident and the two had later laughed and joked about it. In support of his position Mr Francis pointed to the fact that it was only some weeks later that [K] apparently recounted the incident to Ms Sabin.
Mr Trevaskis reported [D] describing the incident to him as follows:
“[D] described the alleged kicking incident. She reported that her father had been “yelling” at [K], she had gone to “look after” [K], had been ordered away, had refused to leave her sister, had been then grabbed by the arms and kicked. She acknowledged having given her father “the finger”. From [D]’s description the “kick” itself seems unlikely to have been particularly hard. From [D]’s perspective, however, this incident has a great deal of significance. She reported that “he said I wasn’t hurt – I was in my room crying for three hours!” Although she reported that her arms had hurt, it is clear that the greatest hurt was emotional. She was clearly shocked. She also feels a great sense of injustice, in that she had been trying to protect and comfort her sister from what she saw as unfair treatment. Most significantly she appears to feel that this is an example of both girls being discounted by their father.”[3]
[3] See Mr Trevaskis’ report dated 22 August 2008 on page 3
I have no reason to discount Mr Trevaskis’ account of the incident. In my view, it is likely to remain highly significant to both children, particularly [D]. Unfortunately, in the period since it occurred,
Mr Francis has not taken advantage of any opportunity to make his peace with [D].
Rather, he has remained focussed on the legal proceedings in this case and his desire to penalise Ms Sabin through them. The children are aware of this and, to a large degree, have become enmeshed in the proceedings between their parents, of which they are well aware.
In his report, Mr Trevaskis wrote as follows:
This emerged as a consistent theme for both girls. They both feel forced to see their father as a matter of principle, regardless of their feelings. Both see their father as being determined to get his own way, and for them the cost is their feelings and comfort. Both reported, for example, that when they are at their father’s place “he spends most of the time with his girlfriend anyway” ([D]). Both see their father as determined to paint their mother as trying to turn them against him: “Dad’s said it, his friends have said it – they haven’t even met mum! It’s so not true” ([D]).
Curiously, although both girls feel quite discounted by their father, they take it for granted that their father loves them “’cause we’re his kids” ([K]). [D] said “I know he loves us – he says it”, [K] adding “but it’s hard to believe … he has a bad way of showing it”. Asked why they believed their father acted as he does [D] said “I don’t really know. Mum says dad loves us and wants to see us”. Although [K] believes, at least at an intellectual level, that her father loves them, she also believes “he just wants to get us away from mum”.
Another consistent theme for both girls was their emotional comfort, and their sense of home. For both, their source of comfort, security and nurturing is their mother: “We just have a closer relationship with her. She’s a mum. She’s the parent. She looks after us, buys us stuff” ([D]); “she’s always nice” ([K]). While both girls had difficulty finding fault with their mother, neither presented as idealising her, or taking her side per se. By contrast, their father’s parenting was seen as limited to “he feeds us … he washes our clothes” ([K]). Summarising, [D] identified their mother as the one who meets their parenting needs, [K] adding “Dad’s just the guy who’s supposed to take care of us”. It was noted that the statements made by the girls on this topic were presented as factual statements of their views. They were not presented with apparent rancour.”[4]
[4] ibid at pages 4-5
Mr Trevaskis rejected any suggestion that Ms Sabin had deliberately attempted to influence the girls against their father or undermine their relationship with him. In this regard, he noted that although [D] and [K] were strongly critical of their father, they did not demonise him. As such, Mr Trevaskis hoped that the relationship the children had with their father could be repaired.
In Mr Trevaskis’ view, the kicking incident had taken on major significance for the two children, something which was understandable given their early adolescence. Mr Trevaskis did not think that
Mr Francis had handled the matter well. I think this is clearly the case. As such, Mr Trevaskis thought there was some validity in [K]’s concern that she might be treated in the same way, when she was [D]’s age.
As a result of these impressions, Mr Trevaskis recommended as follows:
For the girls to have a meaningful relationship with their father it is imperative that the parents do whatever they can to decrease the conflict between them. It is also imperative that Mr Francis find ways to demonstrate his love for the girls in a way which is not conditional on their, or their mother’s, behaviour.
If these things are not achieved, it is predictable that, probably within a fairly short time frame, the girls will either want to further decrease their contact with their father, or discontinue it altogether. It follows, then, that 60 hours make up time is not assessed as being in their best interests at this time.
[D] is an early adolescent. It is appropriate that she have some limited decision making capacity and some control over her life. Although [K] is 11, her maturity is such that the same will very soon apply to her, if it does not already.”[5]
[5] ibid at page 7
Mr Trevaskis’ report was released to the parties in mid-August. Again, I was hopeful that this report might lead to some therapeutic response, leading to the repair of the relationship between the children and their father. However, it became clear to me that Mr Francis did not accept any of Mr Trevaskis’ recommendations and believed his report was fundamentally flawed.
It was also the position that Ms Sabin believed that she had no alternative but to apply to the court to have the children’s time with their father reduced. It was her case that both children were expressing a strong view to this effect.
This was the background to the parties competing applications being fixed for final hearing on 9 and 10 December 2008. It was also at this stage that I made the order that [D] and [K] be independently represented.
I also ordered that a full family assessment be prepared in this matter. Ultimately, it was decided it was prudent that this report be prepared by a consultant other than Mr Trevaskis, given his strong opinion about the views of the children concerned.
The Evidence
I am now better placed to make an assessment of each of the parties concerned than I was earlier, given that I have seen them both, at close hand, throughout both the contravention proceedings and now through the final hearing of the case concerning the final disposition of the children’s issues. Again it was regrettable that the process resulted in Mr Francis being able to cross examine Ms Sabin.
Ms Sabin seemed to me to be a highly vulnerable person, particularly so far as her involvement with Mr Francis was concerned. I do not doubt that, when pushed, she is capable of standing up to him but by and large she would far rather avoid conflict with him than confront it head on.
She was highly distressed during her evidence, constantly twisting a pencil held in her hands. She shrunk away from looking at Mr Francis directly. It was necessary for the proceedings to be adjourned, at one stage, when she was in the witness box, because she was highly distressed and visibly shaking. I do not think her distress was feigned. She presented as a weary person, who was emotionally exhausted by many years of conflict with Mr Francis.
From her point of view, it would be far easier if [D] and [K] spent time with their father, pursuant to court orders, without incident. If this occurred, she would not be drawn into a further round of conflict with Mr Francis, which she certainly does not relish and would prefer to avoid.
[D] and [K] must be aware of their mother’s distress. They must also be aware of what causes it – the father’s domineering attitude towards her, which was amply displayed by his determined cross examination of her. In such circumstances, I can understand why the children would be protective of their mother.
I found Ms Sabin to be a truthful and insightful witness. As such, I accept that she has never directly tried to influence either [D] or [K] against their father. Accordingly, it seems to me to be more likely than not, that the children have formed their own views of their father, as a result of their own personal experience of him, both to themselves and their mother.
Ms Sabin acknowledged that both children loved their father and it would be her preference that the children have an appropriate relationship with him, provided they can be safe and it is what both [D] and [K] would prefer.
As I noted in the earlier reasons for judgment, it is significant that, since the reinstatement of time between the father and their children, in April of 2008, she has ensured that the orders have been followed. As such, I do not think that Ms Sabin is the dishonest and manipulative person whom Mr Francis describes.
It is difficult, at so many years removed now, to accurately assess what was the nature of the parties’ relationship, during the period they cohabited. Ms Sabin has deposed that she suffered depression in the period following the parties’ separation and, as a result, underwent two and a half years of intensive psycho-therapy to come to terms with what she believes was an abusive relationship with Mr Francis. From her perspective, this is the truth of her relationship with him.
I accept Mr Bowler’s submission that Ms Sabin is likely to have a high level of insight into the consequences of exposure to conflict, for children, as a result of the course of therapy, which she has undergone. I accept that this is the case. I found Ms Sabin to be thoughtful and considered, rather than manipulative and dishonest.
Mr Francis accepts no level of responsibility for the parties’ unfortunate relationship with one another. It is his case and emphatic view that Ms Sabin alone is responsible for all the problems. He is resistant and suspicious of any process of therapy, involving either himself or the two children concerned.
Mr Francis is a forceful and emotionally labile person. I do not doubt his love for [D] and [K] but throughout these proceedings, he has focussed on what he perceives to be his rights and what he sees as the egregious failings of the mother. He can see no fault in his own behaviour. He presents as inflexible, domineering and blinkered. My assessment is that he has little insight into the emotional needs of either [D] or [K], particularly as they enter the challenging zone of puberty and adolescence.
The parenting approaches of the parties are likely to be quite different. Ms Sabin is likely to be a tender parent and perhaps a more permissive one. Mr Francis is likely to be more authoritarian in his approach. This of itself is not likely to be helpful to the parties in developing an empathetic and cooperative approach to parenting the children concerned.
It also became readily apparent to me that Mr Francis holds much bitterness towards Ms Sabin, about the circumstances of their separation. It is his case that Ms Sabin essentially abducted the children and moved them interstate, without his consent. Thereafter, he moved to South Australia from Queensland, against his wishes, so that he could maintain his relationship with the children.
He also raised directly, both with Ms Sabin in cross examination and with the court, his view that Ms Sabin became involved in a same sex relationship around the time of the parties’ separation and remains in this relationship to the present time. The fathers professed objection to this relationship was the fact that the mother had not been frank about it with the children. However, my assessment is that, at a deeper emotional level, he objects to it.
Ms Sabin acknowledges she has lived with another woman for many years. She describes this person as a close personal friend but asserts that the two are not involved in a sexual relationship. The mother’s personal life is none of my business and I am disinterested in it, apart from any implications it may have for the wellbeing of the children.
In this regard, I am concerned that Mr Francis may be fixated with the issue and, as a result, is liable to discuss it with the two children concerned. In this regard, it is noteworthy that [K] told Mr Vidot that she thought her father had a “strange obsession” about her mother being in a lesbian relationship. She indicated that the way in which her father raised this issue, with her, made her feel uncomfortable.
I do not think that Mr Francis is a dishonest person. Rather his inflexible attitude and almost pathological dislike of Ms Sabin prevent him from having a reliable or satisfactorily objective view of what is going on around him in his family. Ms Sabin is likely to be a more reliable witness in this regard and to be far more attuned to the emotional needs of [D] and [K].
Besides the affidavit material, which he had personally deposed,
Mr Francis relied on two affidavits sworn by his girlfriend Ms C and Ms E respectively. Neither Ms Sabin nor Mr Bowler required either Ms E or Ms C to attend at court for cross examination.
Ms E is a work colleague of Mr Francis. She is positive about
Mr Francis’ parenting skills and the cleanliness of his home. She is not well disposed towards Ms Sabin and was present when there was an unpleasant altercation between the parties on 7 March 2008. In her affidavit, Ms E concedes that she did not hear most of the conversation between the parties at the time, but could hear Ms Sabin stating that she was “not a lesbian”.
Similarly Ms C, for obvious reasons, is closely aligned with
Mr Francis. She also has deposed as to another altercation between the parties on 8 February 2008. This apparently was the incident which
Mr Francis tape recorded and which was played in court during the contravention proceedings.
As I have already indicated, I do not think that this incident is to
Ms Sabin’s credit. However, the relationship between the parties is a complicated one and Mr Francis is more than capable of being provocative. In this context, I did not find the evidence of either Ms C or Ms E to be particularly helpful.
The only other witness involved in the case was Mr Vidot. Mr Vidot has been a psychologist for several years. He has been a member of the Australian Psychological Society for around ten years. He has been a family therapist since 1996.
A major component of Mr Vidot’s work is preparing family assessments for this court and the Family Court. He has been a family report writer since 2001 and has prepared at least fifty family reports.
Currently, he is employed as a Family Consultant by the Federal Magistrates Court in Darwin. As a result, he has extensive experience of interviewing children and ascertaining their views, as well as assessing the nature of their parental relationships.
Mr Vidot had a significant advantage, over me, in this case. He was able to see the children interacting with each of their parents and was able to hear each of them speaking with their own voices. Accordingly, his opinion and evidence must be given a high level of regard by the court.
All family reports must be considered a “snapshot” in time, which is taken in somewhat artificial and stilted circumstances. Mr Vidot readily conceded the inherent limitations of the report writing process. However, in my assessment, he approached his task with sensitivity and insight. He was well aware of the emotional maelstrom likely to be surrounding the children and Mr Francis’ position that [D] and [K] had been significantly influenced by their mother against him.
Mr Vidot closely considered the question of such influence and rejected it as being a reasonable possibility. He described both [D] and [K] as articulate and mature children. Given Mr Vidot’s assessment, the ages of the children concerned and their personal exposure to the parental issues in this case, I believe it is highly unlikely that either [D] or [K] were parroting what their mother told them to say to Mr Vidot and that either child should be regarded as the mother’s cats paw.
It seems far more likely to me that the children readily seized upon an opportunity to tell an independent person what their views and feelings were, knowing full well that these views would be formally conveyed back to the person who was making some significant decisions regarding their care.
I can see nothing untoward or sinister in how Mr Vidot described the children’s presentation to him. They were sad because they were saddened by their father’s behaviour towards them and their mother, who is their most significant source of emotional support.
I cannot know why the children hugged their father at the conclusion of their interview with Mr Vidot but believe it to be inherently unlikely that they did so because they wished to convey, in some secret way, to their father the unreliability of what they had earlier said to Mr Vidot.
I found Mr Vidot’s report to be thorough and well considered. As such, I accept his recommendations. His report is more likely than not to contain an accurate report of what the views of [D] and [K] are.
a) Ms Sabin
Ms Sabin reported that [D] is in Year 9 at [S] High School and [K] is in Year 6 at [G] Primary School. Both children are doing well at school.
[D] has been identified as a student with higher intellectual abilities. She received five A’s in her most recent report. She has also been identified as a student with great aptitude for art. She is currently doing figure skating, on Wednesday afternoons, which she enjoys.
[K] is learning the piano at present. Ms Sabin pays for the lessons, which cost her $20.00 per week. She is currently receiving $20.00 per week by way of child support from Mr Francis.
Ms Sabin specifically refutes any suggestion that she has been motivated in any way whatsoever in these proceedings by considerations of child support. To the contrary, she has said that she is willing to enter into a child support agreement, with Mr Francis, on the basis that child support will remain the same as present, whatever is the outcome of these proceedings.
I accept Ms Sabin’s evidence in this regard. From her point of view, she would far rather have a less stressful relationship with Mr Francis than receive more financial assistance from him. It seems to me to be more likely than not that Ms Sabin has shouldered more of the financial responsibility for providing for the two children concerned than Mr Francis.
In addition, it seems clear that both children are progressing well at school and have many friends. This confirms my view that Ms Sabin is an insightful parent, who is highly responsive to the emotional needs of the children. It is to her credit that they are progressing so well at school. Ms Sabin deposed that she considered her relationship with both children to be “very good”. This seems to me to be undoubtedly the case.
Ms Sabin deposed that it was her view that both [D] and [K] wanted their father’s love and approval, but were afraid of him. She conceded that her relationship with Mr Francis was very poor and both children were well aware of this fact. However, Ms Sabin did not consider that the children had come to share her view of their father through some process of emotional transference.
As previously indicated, Ms Sabin has undergone an extensive process of psychological counselling. As a result, I do not think that it can be said that she has been following her own agenda in these proceedings. I accept her evidence that she has always “tried to be fair” so far as the children’s relationship with their father is concerned. I accept her evidence that she has been encouraging of the children to try and repair their relationship with their father.
Her advice to Mr Francis, in order how this outcome might be achieved, was insightful. She said that Mr Francis needed to show the children that he “liked them [and would not] hurt their feelings.” She also pointed out that it would be likely to be helpful if he desisted from insisting to them that she was a lesbian.
It was Ms Sabin’s view that [D] would be more prepared to maintain some level of relationship with her father, if she was able to see him as she wished. In Ms Sabin’s view, it would not be good for [D] if she felt her views had been dismissed. If this occurred, she thought it likely that [D] would rebel.
Ms Sabin described [K] as a quieter child than [D] and one who did not like confrontation. It was Ms Sabin’s impression that [K] spent significant portions of the time, allocated for her to be with her father, playing with the children next door. This does not seem to me to be an unlikely scenario.
b) Mr Francis
Mr Francis was extensively cross examined by Mr Bowler. He was not able to recall the name of either [D] or [K]’s class teacher. He said he had a poor memory for names. This may be so and it may be unfair that Mr Francis was put on the spot in this way but I did not gain the impression that Mr Francis had been extensively involved in the children’s education in recent times.
This was an extremely sad case, in many ways. Mr Francis presented at times as being bewildered by what had happened in his relationship with the children. He said that he could not “make head or tails” of the mother’s attitude towards him. He had obvious difficulties in coming to terms with the contents of both Mr Trevaskis and Mr Vidot’s reports. As such, he could only surmise that either the writers or the children had been “got at” in some way.
Mr Francis conceded that he was very upset when he read Mr Vidot’s family report and felt compelled to question the children about what they had said to Mr Vidot. Mr Francis apparently asked the children when he had last yelled at them. His motivation for asking this question was that he wanted to know “why the girls had lied”.
Mr Francis concedes that he was emotional at the time of this conversation and was crying. [D] apparently told her father that she considered his behaviour to be “emotional blackmail”.
Mr Francis revealed this conversation during his cross examination by Mr Bowler. In my view, it does not put him in a good light, so far as his level of sensitivity to the children’s emotional needs is concerned. However, although it might reveal his lack of insight, the conversation also confirmed my view that he is an essentially truthful person.
It is Mr Francis’ case that [D] has grossly exaggerated what occurred between her and him in December of 2007. He reiterated his description of his action as a ‘nudge” to [D]’s bottom and asserted that the incident did not occur, when he was angry. I do not think that this is likely to be the case. Certainly, so far as both [D] and [K] are concerned, the incident is one of major importance. It represents a severe setback so far as [D]’s relationship with her father is concerned and has resulted in [K] becoming frightened of her father.
I am concerned that Mr Francis continues to downplay the significance of the incident and blame [D] for it. I acknowledge that [D]’s behaviour was not without fault and it is understandable that Mr Francis himself would have been angry and concerned at the risk occasioned to [K] by her playing in the road.
However, in the heat of the moment, it is my view that Mr Francis did not respond appropriately to the incident and it continues to reverberate emotionally for both of the children. Unfortunately, Mr Francis has not taken advantage of any of the opportunities offered to him to attempt to repair his relationship with the children, particularly [D].
It is I think noteworthy that Mr Francis deposed that he found [D] difficult to get of her room, when she was in his care. This may be typical behaviour of a teenage child, who is more interested in the attractions of her computer, but may also be indicative of some level of dysfunction in her level of relationship with her father. It is also noteworthy that Mr Francis concedes that he told [D] to tell her mother that she “ought to follow the court orders”.
c) The family report and the evidence of Mr Vidot
After speaking with the children, it was Mr Vidot’s impression that they felt much more “at home” at their mother’s home, where their level of comfort, relaxation and confidence was much greater than at their father’s home. This accords with the mother’s view and, in my opinion, is likely to be true.
It is also of significance that [D] reported to Mr Vidot that she preferred to be exchanged between her parents at the contact centre. No doubt the expression of this sentiment is reflective of the high level of conflict, between the parties, to which both children have been exposed.
[D] was described by Mr Vidot as a child who was “eager” to have her say. It was her preference to see her father every third weekend and to have some level of flexibility about these arrangements. She indicated to Mr Vidot that she was irritated and angry at what she perceived to be her father’s insensitivity and indicated that the two had argued constantly since late 2007.
[K] was also described by Mr Vidot as being “definite” about wanting to spend less time with her father. She supported this decision by her assertion that her father made her feel uncomfortable by “always yelling” at [D]. Both children expressed a preference to see their father, during school holidays, in blocks of four days.
In his assessment, Mr Vidot reported as follows:
In light of what appears to be genuine reporting from the girls about their father, it is hard to countenance any increase in their time with him, along the lines of his August proposal. He advanced a significant increase in time. It would be hard because of the evident interweaving of tensions that have arisen over time – the girls individually and together against the father, and those between the father and mother in their differing reactions to the girls’ wishes for change. These tensions would have the very likely potential of increasing markedly were there to be an increase along the lines proposed by the father. The father’s apparently confrontational role would most probably intensify, given the history between him and his daughters.”[6]
[6] See Mr Vidot’s Family Report at paragraph 37
Accordingly, Mr Vidot was not in favour of their being any increase in the amount of time the children currently spend with his father. The tenor of his report was that he was concerned about the potential for the children’s paternal relationship to be diminished, particularly if other strategies were not adopted to aid in its repair, because it was clear to him that both children still wished to spend regular time with their father. However, with some reluctance, Mr Vidot reached the view that these strategies would not be particularly helpful in this case.
Mr Vidot reached this view because of his assessment of Mr Francis’ essentially negative view of Ms Sabin and the children’s discomfort at being exposed to “their father’s belief system about their mother”. In addition, it was Mr Vidot’s view that Mr Francis was unlikely to be willing to avail himself of any counselling with the children concerned.
Mr Vidot was not inclined to discount [D] and [K]’s accounts of feeling uncomfortable and tense in their father’s presence. Like me, Mr Vidot was of the view that Mr Francis had downplayed the level of aggression in the “nudging” incident.
Overall, Mr Vidot perceived that the children had adopted their stance, in respect of their father, because of a need to protect themselves from undue exposure to his verbal aggression and negativity towards their mother. In such circumstances, he thought their proposals were understandable and reasonable ones.
Mr Vidot’s assessment of Mr Francis was that he lacked insight into the affects of his behaviour on the two children concerned. As previously indicated, he thought the children’s subdued presentation, during interview with him, when they described their experiences of their father was congruent with the experiences they described. Certainly, Mr Vidot rejected any suggestion that what the children were describing was a “beat up”, so far as the actual incidence were concerned.
Mr Vidot thought it would be unhelpful to the children if they were compelled to adhere to a regime of time with their father, which was contrary to their wishes. He considered that this might make [D] resentful and was likely to intensify her feelings of negativity about her father and may potentially have consequences for her level of self confidence.
At fourteen years of age, Mr Vidot considered that [D] was of an age and maturity where it was appropriate for her to determine when she would see her father. In Mr Vidot’s view, allowing [D] to determine when she would spend time with her father was likely to be the best mechanism to ensure that the two maintained some level of relationship with one another.
[K] was described by Mr Vidot as being “fairly mature”. He thought that she to, in the next year or so, would be capable of determining whether she wished to spend time with her father and should be given this opportunity, in the difficult circumstances which prevail in this case. Mr Vidot was not in favour of a different regime applying to the two children, given the closeness of the relationship between the two siblings.
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [D] and [K]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, including grandparents and half-siblings [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)]. In this case, neither party raises any issues to do with neglect, abuse or family violence.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In assessing the various considerations arising under section 60CC (2) & (3) the court is required to assess the degree of participation of the parents concerned in the lives of their children both before and after separation.
This assessment includes how much time and communication each parent has had with the children; the degree of their involvement in long-term decision making; and their fulfilment of financial obligations towards the children [section 60CC (4) & (4A)].
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives. These considerations emphasise the benefits for children of effective co-parenting and the obligations on parents to facilitate it.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[7]
[7] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
Given the significance to family violence, which the mother places in the case, it is appropriate to consider its significance in the legal context. It is clear from the structure of the Family Law Act that the court must closely examine allegations of family violence, bearing in mind the serious consequences exposure to such violence may have for any children concerned.
Family violence is defined as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety” [section 4].
Accordingly, it is not necessary to demonstrate an actual injury on the part of a person complaining of family violence. Behaviour which cause fear or apprehension to a member of a person’s family is sufficient to constituted family violence.
Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force, on the other of a child’s parents, are not appropriate psychological role models for children. For obvious reasons, it is also potentially psychologically damaging for a child to be exposed to violence, involving his or her parents.[8]
[8] See In the marriage of Patsalou (1994) 18 Fam LR 426
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned.[9] Obviously the latter behaviour is the more damaging, so far as children are concerned.
[9] See JG & BG 18 Fam LR 255 at 261
Again these are factors, which the court must bear in mind, in examining issues of family violence, in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to children.
The fundamental task for the court is to assess prospective dangers for the children concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
Finally, as can be seen from the definition quoted above, family violence, in the context of Family Law proceedings, has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
Determining [D] and [K]’s best interests – section 60CC
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect the children concerned from harm as a result of exposure to abuse, neglect and family violence; and the benefits of them having a meaningful relationship with both parents.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [Goode & Goode (2006) FLC 93-286 at 80,901].
In the circumstances of this case, I consider that it is appropriate that the court give some pre-eminence to the need to protect [D] and [K] from the corrosive emotional consequences of being exposed to family violence. I accept that both children are apprehensive about their father as a result of what occurred in November of 2007, between [D] and Mr Francis. In my view, this episode constituted family violence, within the definition provided by the applicable legislation.
In my view, it would be counterproductive to the best interests of the children, to increase the extent of time which they spend with their father in the hope that this of itself may lead to some repair in their paternal relationships, which in turn will lead to these relationships becoming more meaningful.
It is my assessment that, at this stage, there is a very real risk that the father’s conduct, up to this point, will result in the children losing their relationship with their father, particularly if they feel their views have been disregarded. Essentially, it is likely to be counterproductive to the children having any level of relationship with their father, meaningful or otherwise, if they feel they have been dragooned into spending more time with him.
The additional considerations
a) The children’s views
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[10]
[10] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[11]
[11] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[12]
[12] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
[D] is almost fourteen years of age. [K] is eleven. I accept they are intelligent and thoughtful children, who are mature for their respective ages. Ordinarily, regardless of the extraordinary level of parental conflict to which they have been exposed, their views would be highly influential in the outcome of any case concerning them.
In this particular case, I am satisfied that neither child has been subjected to any undue influence from their mother. Rather, both children, for understandable and human reasons, have decided on an outcome which suits them each emotionally and which accords with their own preference. As such, significant weight needs to be given to the preferences of [D] and [K] in this case. In my view, it is one of the most influential factors in it.
b) The nature of the children’s relationship with each of their parents and significant others.
I am satisfied that the children’s most significant relationship is with their mother, who provides them with the vast majority of their emotional sustenance. I accept Ms Sabin’s evidence that the two children concerned are very close to her.
The children also have a loving relationship with their father but currently this relationship is compromised because of the children’s apprehension about him. I accept Mr Vidot’s evidence that the children’s relationship with Mr Francis is fraught with all manner of difficulty.
In my view, this must mean that any attempt to repair the relationship must be handled with caution. Certainly, I think it highly unlikely that any great restorative consequences will come about by compelling [D] and [K] to spend more time with their father. To the contrary, I think such attempts are likely to be counter productive.
[D] and [K] enjoy a close relationship with one another. It seems likely they draw emotional sustenance from one another. As such, it seems inappropriate that the court attempt to derive different care regimes for the two children.
c)The willingness and the abilities to encourage a close and continuing relationship between the children and the other parent
The poor relationship between the parties and the mutual mistrust they have for one another make this a problematic case. This state of affairs is unlikely ever to change.
It is Mr Francis’ case that Ms Sabin has actively sought to undermine his previously good relationship with the two children concerned. I do not accept that this is the case. To the contrary, in my view, in difficult circumstances, Ms Sabin has done her best to support the children’s relationship with their father.
True it is that these proceedings began with the father’s contravention application. It is also the case that I found that the mother had not been as proactive as she might have been in resolving the difficult issues which arose between the parties in January of 2008. However, since April of this year, she has ensured that the children regularly visit their father. This is to her credit.
On the other hand, it is my impression that Mr Francis holds an entirely negative view of Ms Sabin, a view which he has great difficulty in concealing from [D] and [K]. As such, in my view, his attitude towards the mother is the factor which most readily explains the current parlous nature of his relationship with the children.
Mr Francis can see no good whatsoever in the mother and questions her every action. As such, he is incapable of supporting the children’s relationship with their mother. The same is not true so far as Ms Sabin is concerned.
d)The likely affect on the children of any changes in their circumstances
This is not a major consideration in this case. Although the mother wishes to reduce the time the children spend with the father, at this stage, there is no suggestion that either child will stop seeing their father for any indefinite period.
e)The practical difficulties and expense of the children spending time and communicating with each of their parents
This is not a case which throws up significant practical considerations to do with the children spending time with each of their parents. Both parties live in suburban Adelaide, separated by a drive of about 35 minutes. Up to this stage, both [D] and [K] have been able to see their father regularly. The difficulties which exist in this case are not of a practical nature.
f)The capacity of the parties to provide for the children’s emotional and educational needs and
h)The attitude that each party has demonstrated to the responsibilities of being a parent
These criteria are so closely linked that it is convenient to consider them together. For the reasons already provided, I accept that
Ms Sabin has shown herself to be an adept parent in providing for both the emotional and intellectual needs of [D] and [K]. Both children are doing extremely well at school and, apart from some level of difficulty in their relationship with their father, are emotionally well adjusted children.
On the other hand, I agree with Mr Bowler’s assessment that the father has a compromised level of understanding of the children’s emotional needs. I accept Mr Vidot’s opinion that both children are frightened of their father because of his yelling at them and derogatory attitude towards their mother. These behaviours, on the father’s part, are likely to compromise the children’s emotional wellbeing and are not the attributes of a competent parent.
I accept that Mr Francis is interested in the children’s education and wishes both children to do well at school. However, it seems to me that Ms Sabin has borne more of the responsibility of seeing to the children’s educational needs than Mr Francis has done. She has encouraged both the children to pursue various artistic endeavours. This is to her credit.
g)The children’s maturity, sex, lifestyle and background
[D] will be fourteen in January. She is a mature and intelligent child. She is of an age where it is appropriate that her views be consulted and her wishes respected. [K] is younger, being just over eleven years of age. She too, is a mature and intelligent child. I agree with Mr Vidot’s assessment that, fairly shortly, she too will be of an age where she is entitled to be in charge of her destiny, to some degree.
h)Aboriginality
This is not a consideration.
j)Family violence
k)Any family violence order
Mr Francis vehemently refutes any suggestion that he is an inherently violent person. He disputes the mother’s allegation that he was violent towards her during the parties’ relationship. I do not propose to resolve this issue, in the context of the current proceedings, given the significant period which has elapsed since the parties finally separated. However, in my view, it is clearly the case that the parties’ relationship with one another was and is a volatile and unhappy one.
There also remains the issue of family violence towards [D], arising out of the incident of November 2007. What [D] did was wrong and provocative, but in my assessment, Mr Francis exceeded the proper disciplinary response appropriate.
I agree with Mr Vidot’s assessment that Mr Francis has sought to downplay the significance of this incident, which continues to reverberate for both [D] and [K]. The so-called “nudge to the bum” was behaviour which caused [D] to be apprehensive about her safety. In the context of this case, I think her reaction is objectively reasonable.
l)Whether it would be preferable to make the order that would be the least likely to institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The parties’ relationship with one another is poor. In the past,
Mr Francis has shown a propensity to bring proceedings against
Ms Sabin and a reluctance to explore other potential therapeutic avenues to improve his relationship with the two children concerned. These are not hopeful indicators for the avoidance of future litigation between the parties.
However, I am confident that, if I accede to Mr Francis’ proposals, inevitably there will be further proceedings between the parties. [D] and [K] are likely to be highly resistant to such an outcome and
Mr Francis himself is likely to want to take proceedings to enforce what he perceives are his “rights”.
To my mind, in order to spare the children concerned further exposure to the corrosive consequences of further litigation between their parents, it is appropriate to adopt the proposals of Mr Bowler that the children’s time with their father be reduced and subject to their wishes.
For reasons already advanced, I am satisfied that this is likely to be the best mechanism to ensure that the children’s relationship with their father is preserved, in the short to medium term and also to be the one least likely to lead to the institution of more proceedings between the parties.
Conclusions
Pursuant to section 61DA(2) & (4) I am satisfied that it would not be in the best interests of either [D] or [K] that their parents have equal shared parental responsibility for them. I am satisfied that there are reasonable grounds which cause me to believe that Mr Francis has engaged in family violence against [D] in particular.
However, at a more fundamental level, it is my view that the parties’ parenting relationship is so poor and dysfunctional and the two children concerned are so emotionally aligned with their mother that it would simply not be in the best interests of [D] and [K] for such an outcome to occur. The parties acknowledge that they communicate poorly and when they do, there is always the potential for serious conflict to erupt between them.
Having considered the various section 60CC factors, I have come to the conclusion that [D] and [K] should continue to live predominantly with their mother. The most significant factors leading to this conclusion are the close and loving relationship between the children and their mother; her aptitude as a parent; and it is the outcome which accords with the preferences of [D] and [K].
The children love their father. Regrettably, for complex reasons, they are somewhat apprehensive and ambivalent about him. I acknowledge that the children need to have a meaningful relationship with their father. It would be sad if they lost the opportunity to have a relationship, with him, in their maturity because they were forced to spend time with him now. In my view, the week about arrangement, which Mr Francis seeks will not result in the repair of the children’s relationship with him. To the contrary, it is likely to lead to more division between the children and their father.
Accordingly, it seems to me that the best means of the children maintaining some level of meaningful relationship with their father is if the time is reduced along the lines proposed by Mr Bowler, following the recommendations of Mr Vidot. Again, this is the outcome which accords with the views of the children concerned. I accept Mr Vidot’s evidence that it is likely to be potentially harmful to the children, particularly [D], if the court pays no attention to their views, after going through an extensive process of canvassing those views.
[D] is approaching her fourteenth birthday. She is a mature and intelligent child. In my view, she is of an age when she can determine when she spends time with her father. [K] is younger but is also an insightful child. I agree with Mr Vidot that, within a year or so, she to should be able to see her father when she wishes.
The level of conflict in the parties’ parenting relationship is high and endemic. The children are well aware of this conflict and do not like it. This to is another compelling reason why the children should live more with one of their parents than the other. In my view, the evidence is unequivocal that [D] and [K] are happier, more relaxed and more secure in their mother’s household.
It seems to me that the mother has been making most of the major decisions, concerning the children, for some time now. Fortunately, the children enjoy good health and these decisions have been in regards to educational issues in the main.
Given this state of affairs and the high level of conflict between the parties, Mr Bowler submits that it is appropriate that Ms Sabin have sole parental responsibility for the two children concerned. Sadly, I have come to the same conclusion.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
In this case, there are likely to be few major long term issues to do with the care of the two children concerned. However, given the previous care arrangements for [D] and [K] and what will occur as a result of these proceedings, I think that Ms Sabin should have sole parental responsibility for the two children concerned, particularly as she has discharged the vast majority of the parenting responsibility for the two children over the last few years.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 23 December 2008
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