Seiler and Vogler

[2014] FamCA 395

FAMILY COURT OF AUSTRALIA

SEILER & VOGLER [2014] FamCA 395

FAMILY LAW – CHILDREN – Interim Orders – children reluctant to spend time with mother – mother alleges father is not supportive of her relationship with the children – father maintains children are reacting to what they perceive to be the mother’s inability to support their relationship with the father – mother seeking supervised time on each alternate weekend while father seeks a further period of supervised time at a Contact Centre – father also seeks an order of “reunification therapy” – best interests of the children – meaningful relationship with both parents – parties and children to participate in therapy with a view to creating a healthy parent/child relationship with the mother – mother’s time with the children to be supervised by her partner.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518

APPLICANT: Ms Seiler

RESPONDENT: Mr Vogler

INDEPENDENT CHILDREN’S LAWYER: Alderman Redman Lawyers & Mediators

FILE NUMBER: ADC 3201 of 2009

DATE DELIVERED: 13 June 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 6 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: The Family Law Project

COUNSEL FOR THE RESPONDENT: Ms Hurley

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Alderman Redman Lawyers & Mediators

Orders

1. The parties shall arrange for themselves and the children J born … 2002 and L born … 2004 (“the children”) to attend upon Ms C, child psychologist, or such other therapist as the parties may agree, with the focus of such therapy to be as follows:-

   (a)       To create a healthy parent and child relationship with the mother;

   (b)To ameliorate any distress and/or anxiety occasioned by the children commencing to spend time with the mother;

   (c)To reinforce with the children:-

   (i)that neither of them is at risk of harm from the mother;

   (ii)that they are not at risk of being removed from the care of the father;

   (iii)that they will not be physically disciplined or be the subject of any inappropriate conduct by the mother; and

   (iv)to explain the import and effect of this order;

2. That the parties and the children together participate in such therapy on the basis that the said therapy shall be on such occasions and with such frequency as determined by the therapist PROVIDED that the said therapy shall be completed within a period of four (4) weeks commencing as and from 16 June 2014.

3. That the therapist referred to in these orders shall be given a copy of the reasons published this day and a copy of these orders.

4. That the father will do all things necessary to ensure that the children attend with him and the mother upon the said therapist and that he shall thereafter facilitate their attendance and involvement in all sessions.

5. That at the conclusion of the said therapy as provided for herein the children shall spend with the mother as follows:-

   (a)       Each Wednesday from the conclusion of school to 7.30pm;

   (b)       On each alternate Saturday from 10am to 5pm;

   (c)       Such further and other times as the parties may agree,

6. That for the first six (6) occasions, the time that the children spend with the mother shall be supervised by Mr R.

7. For the purpose of these orders, handover not from the children’s school shall be effected by the father bringing the children to the mother at the commencement of her time and the mother returning the children to the father at the conclusion of her time.

8. Save as provided for in these orders, the mother and the father are restrained and an injunction is granted restraining each of them from showing the children any documents relating to these proceedings, talking to the children about any contents of documents in these proceedings or from allowing anyone else to do so SAVE in the course of any counselling or therapy for the children and then only at the direction, or under the supervision of the agreed therapist.

9. The parties shall be restrained and an injunction is granted restraining each of them from taking the children to any psychologist, counsellor or therapist other than as provided for herein SAVE as may be the subject of agreement between the parties.

10. That the father shall be responsible for the entire cost of the said therapist.

11. That on or after 20 September 2014, the mother is at liberty to bring an Application in a Case seeking an increase in the time that the children shall spend with her but not otherwise.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seiler & Vogler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: ADC 3201 of 2009

Ms Seiler

Applicant

And

Mr Vogler

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. The matter was listed before me for a hearing in respect of interim orders arising from an Amended Initiating Application of the mother Ms Seiler filed 19 November 2013 and a Response to that application filed by the father Mr Vogler on 9 May 2013.  The focus of the proceedings relate to parenting issues in respect of J born in 2002 and L born in 2004 (“the children”).

2. The orders currently sought by each of the parties do not appear with any formality in an Application in a Case or a Response.

3. The proceedings have been frenetically pursued by each of the parties since the filing of the Initiating Application on 11 April 2013.  By way of a broad summary, the parties have been struggling with the apparent resistance of the children to spending any meaningful time with the mother.  On her case, their reluctance to see her can only be attributed to the father’s malicious influence and manipulative behaviour.  The father’s position is that he supports the children having a relationship with their mother but that they are reacting adversely to their perception that when the children were primarily in her care she did not support a relationship between the children and their father. Moreover, the father alleges that the mother’s behaviour is unpredictable, aggressive, emotionally labile and possibly overtly physical to the children.

4. By order of Registrar Paxton on 11 February 2014 the matter was listed before me for interim argument noting that a second period of supervised visits at the contact centre would have concluded in May 2014.

5. It is uncontroversial that at the conclusion of the most recent supervised periods there was not a satisfactory resolution to the children’s continued opposition and resistance to spending time with their mother.  In short, there was not a resumption of the relationship between the children and the mother which currently could best be described as fractured.

6. Accordingly, the orders sought by each of the parties were based upon a diminishing pool of remaining options.  That is not to suggest that there had developed a cooperative approach by the parties.  The mother as evidenced by submissions of her counsel, remains firmly convinced that the father is not supportive of the children having a relationship with her, whereas the father by his counsel’s submissions, now submits that the mother presents a risk to the children by reason of emotional abuse and the potential for family violence.

7. The orders sought by the mother are that she spends time with the children each Wednesday after school and then for a more extended period on either a Saturday or Sunday in each alternate weekend provided that such time is supervised.  The mother puts forward Ms A who is an acquaintance of the parties and someone who offers the mother support in the proceedings.  Ms A has filed an affidavit in support of the mother on 28 May 2014.

8. The orders sought by the father are set out at some length in paragraph 26 of his affidavit filed 23 May 2014.  The short summary is that there should be a further six supervised sessions at the contact centre, that the children continue to receive therapeutic support from a child psychologist Ms C, thereafter there should be eight sessions of “reunification therapy” and that before the matter returns to Court, the mother should continue with individual therapy in respect of her perceived mental health issues, Ms C should provide a report of the interaction between the mother and the children and possibly an addendum assessment report should be obtained from Ms B who published a family report dated 27 November 2013.

BACKGROUND

1. Short history:-

   … .1971        Date of birth of mother

   … 1973         Date of birth of father

   1999              Date of commencement of cohabitation

   … .7.2001     Date of marriage

   … .2002        Date of birth of J

   … .2004        Date of birth of L

   22.2.2009     Date of final separation

   30.11.2009Final orders made resolving property settlement and spouse maintenance

   … .11.2010Date of Divorce Order

2. Following separation, the parties reached an agreement that the children would remain primarily in her care but that they would spend two nights a week with him and half school holidays.

3. It seems that the parties then engaged in discussion wherein the father sought a significant increase in the time that the children would spend with him.

4. It is a reasonable assessment that whatever the relationship was between the parties following the resolution of property matters, there remained tension and conflict over the parenting arrangements for the children.

5. An incident occurred on 6 April 2013 at a handover of the children from the mother’s care to the father.  On this occasion the father did not attend but rather, the handover was effected with his wife Ms D.  Ms D alleges that during the handover she was assaulted by the mother.   The mother alleges that Ms D assaulted her.

6. Irrespective of who was the instigator, the altercation was clearly distressing for all but on the father’s case in particular the children reacted dramatically and were “crying, anxious and frightened”.

7. He alleges that the children were scared of the mother, that she would attend at the father’s home and take them by force and that they did not want to return to her care.

8. The children did not attend school and the father made it clear to the mother that he intended to bring proceedings that would significantly change the parenting arrangements.  In the interim, the children remained with the father and spent no time with the mother.  The father did propose that the children spend time with the mother supervised by an employee of “E Supervisors”.  He was prepared to facilitate the children seeing their mother but only on the basis that their time be the subject of strict supervision and that the mother agree not to attend the children’s school or to remove the children from his care.

9. The mother was not prepared to agree to the conditions as outlined by the father but did propose that the children and the parties attend upon Ms F, clinical psychologist, in order to ascertain the wishes and the perceptions of the children in respect of their relationship with their mother and to observe interaction and thereafter to report.  The report of Ms F was published 26 April 2013 and appears as “Annexure F” to the father’s affidavit filed 9 May 2013.

10. Ms F reports as follows:-

    [1][J] (age 11) and [L] (age 8) reported that they have been living with [the father] since the incident on 6 April 2013.  [J] stated that [the mother] wants them to spend more time with her but she is too scared to go back to her.  Prior to the incident both children were living with [the mother] and spending alternate weekends and alternate Thursday nights with [the father].  [J] said she wants more time with [the father] and would like to have four days with each parent to make it fair to both parents.  [L] stated that she wanted to live with [the father] for four days and with [the mother] for three days per week.

    [2][L] admitted she feels scared but said she is not as scared as [J].  [J] commented that [L] is usually easily scared.  [J] stated that she had been scared by [the mother] on a number of occasions but it is difficult to tell her this because she gets angry and says things like “you know how to play Dad’s game”.  She noted that she once rang the kids helpline to get advice about how to deal with her [dancing] issue…

    [3]In talking about the current living arrangements, [J] stated that it feels very comfortable because neither [the father] nor [Ms D] blames her and makes her feel guilty as [the mother] does.  She noted that [the father] is the one who tried to get them to a safe place after the incident.  [L] says that she feels very safe with [the father] and [Ms D].  [J] said that she feels safe with [the mother] sometimes, but gets scared because she is afraid of what [the mother] might do when she is very angry.  She recalled the April 6 incident and reported that [the mother] grabbed her “very hard” when she wanted to speak to [Ms D] and asked her why she wanted to speak to “that bitch”. …[J] stated that [the mother] had been very angry ever since [the father] and [Ms D] began living together.

    Both children made it clear that they loved [the mother] and want to spend time with her but believe it is too soon at the moment to do this.  [J] said “I just want to stay in a safe place for the moment” and when she wants to see [the mother] she wants another person to be present when she sees her so that she is safe.  When asked who that person might be she said she didn’t know.  Both children expressed concern about [the mother] possibly coming to their school and trying to take them away when school resumes next week…

11. By way of a summary, Ms F considered that the children “witnessed a very frightening incident which left them traumatised”.  And -

    [12]Both children were adamant that they loved [the mother] and want to see her, but feel that it is too soon to do this at the moment.  They would also like their first meeting with her to take place with someone mutual present.  Based on the children’s high level of anxiety and substance of their interview, I determined that it was not in their best interests to take part in an observed interaction at that time.  It is difficult to say how long the children will need before they feel able to meet with [the mother], but meeting halfway through the upcoming school holiday may be suitable, as a reasonable time would have elapsed from the incident and the children will be well established in their school routine which should help them focus on things other than the incident.

12. The matter came before Judge Simpson on 14 May 2013.  The parties had reached a consensus and an order was made by consent that provided during the period of the adjournment for the children to reside with the father and that the father would ensure the attendance of the children upon a general practitioner to assess and/or diagnose whether the children were suffering from “post-traumatic stress syndrome”.

13. The children were seen by Dr G on 23 May 2013 and a report was produced dated 28 May 2013 indicating that the children did not suffer from post-traumatic stress disorder.  The children were however reacting poorly to the inter-parental conflict between the parties.

14. It is unfortunate that the children were put through a process of psychological assessment by Dr G in circumstances where such an inquiry was not necessarily indicated and in any event, insufficient consideration was given as to whether the process would have the adverse effect of reinforcing a negative view of the mother.

15. The children underwent further assessment by Ms F on 20 June 2013 which resulted in a recommendation that the children spend time with the mother under supervision at a contact centre.  By this time the children had not seen their mother for two and a half months.

16. There remains a dispute between the parties as to why it took until 21 September 2013 for the first supervised occasion to occur.  By that stage the children had not seen their mother for five and a half months.  After the first visit further orders were made by Judge Simpson confirming the balance of the five supervised visits, that an observation report would be prepared after the fourth such visit and that thereafter the parties would attend upon Ms B for the purpose of a family assessment and a report to be prepared.

FIRST TRANCHE OF SUPERVISED TIME

1. The observations of the supervised time forms “Annexure A” to the affidavit of the father filed 11 December 2013.  The visits occurred on 21 September 2013, 5 and 19 October 2013 and 2 and 16 November 2013.

2. The first visit on 21 September 2013 suggests that the children were nervous and uncertain but ultimately were persuaded to see and spend time with their mother.  There were no adverse observations of the mother’s behaviour.  L saw her mother and then did not want to remain.  J remained with the mother for about 25 minutes before she terminated the visit.  The mother and J were observed to embrace and J was observed to say to her mother that “I love you too”.  At the conclusion of the visit the worker made the following observations:-

   [J] said it was better than she thought it would be.  [J] ran to [the father] who was waiting in the waiting room and hugged him.  [The father] hugged her back and asked if she was ok.  [J] nodded and told him she had some photos.  She showed him some of the photos and smiled.  [J] said she had told [the mother] that she wanted to live with him.  [The father] said did you? As long as you are true to your feelings we will support you.  [The father] said he was proud of her.

3. On 5 October 2013 the visit did not proceed.  The children did not wish to see their mother, but J told the worker that she had a “list of things I want Mum to bring and a letter to give to her”. 

4. On 19 October 2013 the visit did not proceed. The children did not wish to see the mother.

5. On 2 November 2013 the children were prepared to see the mother and did so for about 35 minutes.  Again, there was no observation of the mother acting inappropriately but the children were clearly on edge.  There were observations however of the children laughing with their mother whilst considering some photos that she had brought in depicting the children dancing.

6. On 16 November 2013 the children did agree to spend time with their mother.  The visit was relatively short and whilst again the mother’s demeanour and attitude seemed appropriate, the children were distressed.  J raised with the mother that she wanted to live with her father and the mother reassured the child that if that is what she really wanted then that could happen.  The conversation then turned to the family dog and it appeared that the children were missing their animals.  Ultimately, it became too hard for the children and the session was terminated.

7. When speaking to the father the following was observed:-

   [J] said that she was upset because [the mother] said she wouldn’t bring the dog to visit (at [the father’s] house) and that [the mother] had said the dog would need to get to know them again.  [The father] hugged [J] as she sat on his lap.  [The father] said “I am sure she will let you see the dog again”.  [J] said “not without her” and continued to cry…

FAMILY REPORT

1. The parties, their respective partners, extended family and the children were interviewed by Ms B on 20 November 2013.

2. As part of the assessment process, it was intended that there would be observed interaction between the children and the mother.  The children refused to participate in the observation.

3. Each of the parties recorded an adverse view of the other.  The mother considered that the father had been “incredibly controlling” and that the claims of the father and Ms D that suggested that she was aggressive and suffered mental illness were a fabrication designed to achieve an outcome namely, removing her from the lives of the children.

1. For their part, the father reported that “she had a history of self-harming behaviour and suicide attempts” and that they had an absolute concern about her current mental stability.  They spoke of their fear for the children and their risk of witnessing the mother self-harm in the future.  They added, the children finally felt safe now that they were free from their mother’s emotional manipulation and instability.

2. Unfortunately, the dispute has extended to family and friends.  The maternal family have had little to do with the children since April 2013.  The maternal grandparents considered that they hitherto had an excellent relationship with the children and that the current dispute has now denied the children that advantage.

3. Ms B recorded that both parties “raised counter-claims that the other parent had neglected the children’s basic needs”.

4. Each party further denies that they failed to support the children’s relationship with the other.  The father and Ms D purportedly continue to encourage the children’s relationship with their mother.

5. The children were each interviewed by Ms B.  It was recorded that J did not feel comfortable with her mother and that her mother was “just rude, just really mean and furious like she always is”.  J appeared to be significantly affected by the observations of the incident between the mother and Ms D in April 2016.  J made it clear that she did not like spending time with the mother at the contact centre and that she was upset with her mother for not bringing certain things that she had asked for.

6. She was also upset that her mother refused to give her the dogs.

7. When J was asked whether she would see her mother she responded that “there was no point for the family consultant to observe the interactions because her mother would “act different, be nice” which was not how she was normally”.

8. When L was interviewed, she said that she was worried about her mother coming into the office and that she felt scared of the mother.  When asked when she thought she would be able to see her mother, the following is recorded:-

   She then further explained she did not want to spend time with her mother in the near future, or with Ms [C’s] support, only when [J] wants to.

9. As at the date of the report the children had been receiving therapy from Ms C, child psychologist.  Following contact with Ms C, she reports:-

   The girls presentation are of being troubled (ie confused, saddened) by their recent experiences and worried about their future, in particular, the uncertainty of their future living arrangements.  My opinion of their emotional needs is that they require a predictable and sensitive care-giving environment, and clarity around the next steps for them (ie, what will be required of them with regards to their parenting arrangements/time with their mother).

10. Ms C seems to suggest that “reunification therapy” might be of some value but that was not a task she could undertake, it being inconsistent with her current therapeutic role.

11. Ms B stated the obvious namely:-

    It was hopeful that in time not only would the children’s relationship with their mother be repaired and strengthened but also their relationships with extended maternal family members.  It was the opinion of the family consultant that the children would benefit from long-term and meaningful connections with their maternal family, notwithstanding the claims before the Court raised by the father against these members of the family.

12. The recommendation was that the children remain living with their father and that there would be a further six more sessions at the contact centre together with their continued attendance upon Ms C and possibly on another therapist with an aim at reunification with their mother.

13. Following the report, the mother filed a further affidavit on 22 October 2013.  At annexure “VKS4” the mother annexes various letters and notes from the children to her.  To the extent that it is indicative of same, the notes appear to demonstrate a love and affection by the children towards their mother.  It is of course possible that the notes were simply a disingenuous exercise by the children, but I consider that to be unlikely. Those notes however should be contrasted with the note attached to “VSK14” of the affidavit which is a handwritten note by J given to the mother at a supervised contact visit on 4 October 2013.  The tenor of the note is quite different to the previous correspondence and suggests that the children have become inappropriately involved in the internecine dispute between the parties.  J clearly understands the concept of the mother needing to “give Dad something so we can live with Dad forever and that’s ok with you”.  Importantly, J set out a list of seven items that she wanted the mother to return to her.  The concern is that the note may be an indicator for the children of the extent to which those who are concerned with their care and wellbeing will react to their wishes notwithstanding that it may not ultimately be in their best interests.  The children may have become active participants in the proceedings.

SECOND TRANCHE OF SUPERVISED TIME

1. Dates for the scheduled observations were 22 February 2014, 8 and 22 March 2014, 19 April 2014 and 3 May 2014.

2. The children saw their mother on 22 February 2014.  Again, there were no adverse observation of the mother’s behaviour and it seemed as if the children had made up their minds that they were not going to engage with their mother.

3. The following observation is instructive:-

   [The mother] and the girls sat down and [the mother] engaged them in conversation about friends and birthdays.  [L] kicked [J] under the table and looked at her, mouthing, “what are you doing?”.  [J] got out a list and gave it to [the mother], asking her if she could bring these things next visit. [The mother] said she would try and see what she could do.  [L] said, “can I just say one thing?”  [The mother] said “of course”.  [L] said “I just want to live with Dad and come and see you here”.

4. Following that observation, L told her mother that she was going to go and she left the room.  At that point, J was observed to burst into tears putting her head on the table. There then followed an appropriate interaction between mother and J as the mother attempted to calm the child.

5. The conversation then turned to the dogs and ultimately J, in some distress, left the room.

6. On 8 March 2014, only J would engage with the mother.  J was given presents and said she really missed “H” and “K”, the dogs.

7. On 22 March 2014, both girls spent time with the mother and again there was no observation that suggested the mother had behaved inappropriately.  It appeared to be an emotional exchange but again ended with some level of distress.

8. On 19 April 2014, again only J was prepared to see her mother.  On this occasion the mother had surprised J by bringing the dogs.  J was keen to engage both with the dogs but also in conversation with the mother, there appeared to be an affectionate and pleasant exchange between them.

9. On 3 May 2014, the children refused to spend time with their mother.

CURRENT CIRCUMSTANCES

1. There appeared to be general agreement between the parties and the Independent Children’s Lawyer (“ICL”) that the children should be spending time with their mother.  The father’s position was that the visits should be supervised at a contact centre.

2. The mother remained opposed to such an approach on the basis that there had been two previous programs of supervised time and in a general sense they had been unsuccessful.

3. The ICL was not able to provide much assistance.  No enquiry had been made as to the availability of a further program of sessions, or indeed when that could occur.  Ms C was not prepared to undertake therapeutic intervention and no enquiry had been made as to the availability and the terms and conditions of engagement of another suitably qualified person to undertake that role if the Court considered it an appropriate way forward.

4. For his part, the father says that L is affected by the topic of supervised time with the mother:-

   Her shoulders droop and hunch forward, she lowers her head her voice becomes a whisper.  She becomes immediately withdrawn and she looks sad or depressed.  She starts to complain about having sore tummy and these complaints occur constantly until the supervised visits stop.  In the past [L] has complained of wanting to vomit and she has commenced dry-retching on the following occasions:-

   ·On one occasion in the days leading up to the supervised time between the mother and the children, [L] threatened to vomit in the car on the way to school and she began dry-retching; and

   ·On another occasion [L] began dry-retching while I was walking her and [J] into the supervised Contact Centre.  She had again been complaining of having a “sore tummy on this occasion”.

5. The reaction is extreme and even at the high watermark of the father’s case, is out of proportion to the mischief complained of.

6. The father further alleges that when he encourages the children to adopt a positive attitude towards their mother, their response is:-

   ·You don’t know what she is like…she is just nice in front of ladies at the Centre; or

   ·She makes us feel bad, she just looks at us and it’s mean; or

   ·She squeezes and pinches us; or

   ·I know she is very angry and if no-one is looking, she would be mean to us like she usually is.

7. The views expressed by the children should be seen against their initial attitude as expressed to Ms F soon after the incident on 6 April 2013, where J expressed a wish to reside with her father but to spend three nights with her mother.  At a time proximate to the distressing incident, the children were still expressing their clear love for their mother.

8. Against the backdrop of the history of the matter and notwithstanding the voluminous extent of affidavit material filed on behalf of each of the parties, it is difficult to find what it is that adequately, or at all, explains the opposition of the children to spending time with the mother.

9. It is a lack of their insight that along with the breakdown in the relationship between the children and their mother, is also an almost complete disassociation with the maternal family.

10. A further concern is that counsel for the ICL was not able to advise whether any consideration had been given as to whether reunification therapy, if available, would be likely to succeed or if it may have an adverse effect on the children by requiring them to interact yet again with another health professional.

THE LAW

1. In Goode & Goode (2006) FLC 93-286, the Full Court considered the appropriate legislative pathway when dealing with interim parenting applications:-

   [81]In making interim decisions a Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parties as to what constitutes the best interests of the child.  However, the legislative pathway must be followed.

   [82]In an interim case that would involve the following:-

   (a)Identifying the competing proposals of the parties;

   (b)Identifying the issues in dispute in the interim hearing;

   (c)Identifying any agreed or uncontested facts;

   (d)Considering the matters in Section 60CC that are relevant; and, if possible making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e )Deciding whether the presumption in Section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe that there has been abuse of the child or family violence, or in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)If the presumption does apply deciding whether it is rebutted because application would not be in the child’s best interests;

   (g)If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in Section 60CC or is impracticable;

   (h)If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in Section 65DAA (3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in Section 60CC or is impracticable;

   (i)If neither equal time, or substantial and significant time is considered to be in the best interests of the child, then making such order in the discretion of the Court that are in the best interests of the child, as a result of the considerations of one or more of the matters in Section 60CC;

   (j)If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in Section 60CC; and

   (k)Even if the Court may need to consider equal time or substantial and significant time, especially if one of the parties had sought it, or even if neither party has sought it, if the Court considers after affording procedural fairness to the parties, it to be in the best interests of the child.

2. There is no challenge to the proposition that each of the parties shall have equal shared parental responsibility.

3. Whilst the father only offers limited time and the subject of supervision by an external agency, the mother does not seek equal time nor even significant and substantial time, but rather limited time with such time being the subject of supervision by a friend or associate.

4. At this stage, neither the parties nor the Court considers that it would be in the best interests of the children for them to spend equal time or substantial and significant time with the mother.

5. The important consideration however is to have proper regard to the provisions of Section 60CC (2):-

   The primary considerations are:-

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

6. The consideration of the primary considerations in Section 60CC (2) is central to the determination of the current interim proceedings.

7. There remains between the parties substantial mistrust and inter-parental conflict.  I am not able to find whether there is veracity in the mother’s allegation that the father and his partner are not supportive of the children’s relationship with her and provide an environment in which the children understand that they have the ability to be oppositional towards their mother.  For his part, the father is of the view that the children’s relationship with their mother was fractured well prior to April 2013 and the children are simply making their wishes and views heard.

8. I do not consider that either party has demonstrated significant goodwill towards the other and the children are embroiled in the dispute.  I consider that the children are significantly aligned with their father and Ms D.

9. On an interim matter, I am not able to make a finding as to whether the history of the matter supports the contention that the mother is aggressive in her behaviour, or indeed that the father is manipulative and controlling.

10. I am able to find however that these children have been significantly damaged by the dispute and that their presentation now would appear to be out of all proportion to the mischief upon which it is allegedly based.

11. There is however a strong underlying relationship that needs to be supported.  The children remained in the mother’s primary care following the separation of the parties in 2009.  There were no Court proceedings until those instituted by the mother in April 2013. 

12. In Mazorski & Albright (2007) 37 FamLR 518 Brown J commented on the definition of “meaningful” and said:-

    What these definitions convey is that “meaningful” when used in the context of a meaningful relationship is synonymous with “significant” which in turn is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis of when considering the primary considerations and the applications of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective not a strictly quantitative one.  Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirement for time with children to be where possible and in their best interests, substantial and significant.

13. I am therefore obliged to consider what orders should be made that serve the best interests of the children.

14. There is always the potential for tension between the need to promote a meaningful relationship, but to protect the child from abuse or family violence.

15. I do not consider (and neither does the father) that even on the high water mark of his case, the actions of the mother would speak against the children having any relationship with her.

16. In this case however the interim proceedings do not provide any insight as to what is really behind the children’s oppositional conduct.  Of concern to the Court is that it is based upon a desire to manipulate the process in order to achieve a particular outcome namely, that the children would remain in the primary care of the father.

17. If that is the case, it would be an inappropriate manipulation of the proceedings and the process of attempted reunification.  It does however reflect upon the weight that I would give to the views of the children and in that regard I consider that I should be cautious in the weight that I give to the views expressed by the children.  Whilst it is asserted that they present with mature reflection on their predicament, I consider that their present views and the manner in which they are expressed are unreliable and lack insight, particularly the effect that the lack of relationship with their mother and consequently her extended family will have on them.

18. I have had careful regard to the provisions of Section 60CC both as to the primary and the additional considerations. I do not consider that further extensive periods of supervised time at a contact centre (if it can be arranged) will provide very much assistance. The children understand that if they don’t wish to see their mother then by simply indicating their position they are not obliged to engage with her. In any event, I consider that the proposal of further supervised structured time is really a default position.

19. Ms C, whilst she has a good relationship with the children, is not prepared to undertake reunification therapy.  I consider that such proposed therapy is ill-considered and lacks any empirical rigor in terms of whether it is more or less likely to succeed, or would run the risk of further alienating the children by their inculcation into the process.

20. All commentators agree that the children need to understand both the importance of maintaining a relationship with their mother, but also the ready acceptance by their father of that proposition.  It may require that the children see that their parents are engaging with each other to ensure that the importance of a relationship with the mother is paramount.

CONCLUSION

1. At the commencement of the proceedings, I advised counsel that it could well be a further 12 months before this matter could reach a final hearing.

2. If the time that the children spend with their mother remains either limited or non-existent then there is the real risk of a total breakdown in their relationship with her and an inability for it to be resurrected in all the circumstances.  The father does not suggest that there should be no relationship.  Indeed, on his case he says he supports a relationship.

1. The mother accepts that there has been a change in the relationship between the parties and the children and on her case concedes for the moment the children would remain in the primary care of the father, but that even on a final basis he should have a significant increase in time over that which was in place following separation.

2. I propose to make orders in terms of the mother’s application following the parties and the children attending upon either Ms C or such other suitably qualified practitioner as the parties may agree so that the children can have the orders and the circumstances explained to them, but against the background of what will hopefully be a unified approach by the parties in relation to a resumption of time with the mother.

3. The mother sought to have her time with the children supervised by Ms A.  There is no reason to suggest that Ms A would not be a suitable person, but unfortunately her affidavit of 28 May 2014 made reference to what she describes as “a disturbing experience with the father’s partner [Ms D] on 6 June 2013”.

4. Clearly, Ms A is a supporter of the mother and is likely to be a witness in the proceedings.  It is regrettable because otherwise she would be suitably qualified to assist in supervision.

5. On balance however, I consider that the mother’s partner Mr R to be a person who is able to assist in the process.  Whilst he is obviously the mother’s partner, he is a person about whom all parties agree is pleasant, respectful and had a good relationship with the children.

6. The time that is proposed for the children to spend with their mother is limited and they have proven themselves to be able to report any adverse action or experience in which they find themselves.

7. I make orders as appear at the commencement of these reasons.

I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 June 2014.

Associate: 

Date:  13 June 2014