Sellwood and Wallace
[2011] FMCAfam 1298
•24 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SELLWOOD & WALLACE | [2011] FMCAfam 1298 |
| FAMILY LAW – Parenting – two children aged 11 and 9 years – dispute as to the frequency of time they should spend with their father – parties live 80 kilometres apart – ordered children continue to live with their mother and spend the first, fourth, six and eighth weekends with their father as well as agreed holiday and special occasion time – mother found not to be supportive of the children’s relationship with their father – ordered the children undergo therapeutic counselling to assist them in their relationships with each of their parents. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MR SELLWOOD |
| Respondent: | MS WALLACE |
| File Number: | MLC 9441 of 2010 |
| Judgment of: | Bender FM |
| Hearing date: | 24 November 2011 |
| Date of Last Submission: | 24 November 2011 |
| Delivered at: | Bendigo |
| Delivered on: | 24 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Combes |
| Solicitors for the Applicant: | Garden & Green |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | In person |
ORDERS
The father and the mother have equal shared parental responsibility for the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”).
[X] and [Y] live with the mother.
The father shall spend time with and communicate with [X] and [Y] as follows:
(a)in each term on the first, fourth, sixth and eighth weekends from 5.30pm Friday until 5.00pm Sunday;
(b)for one half of all school term holidays by agreement and failing agreement the first half;
(c)from 5.30pm on Friday until 5.00pm on Sunday on the weekend of Father’s Day and the father’s time with [X] and [Y] be suspended from 5.30pm Friday until 5.00pm Sunday on the weekend of Mother’s Day;
(d)from 2.00pm on Easter Sunday until 5.00pm Easter Monday in each year that Easter does not fall during school term holidays;
(e)during the long summer vacation:
(i)from 4.00pm on Christmas Day 2011 and thereafter 3.00pm on Christmas Day for a period of two weeks;
(ii)from 5.30pm Friday until 5.00pm Sunday on the second last weekend of the long summer vacation.
Changeover shall occur with the father collecting [X] and [Y] from the mother’s residence at the commencement of his time and the mother collecting [X] and [Y] from the father’s residence at the conclusion thereof.
Notwithstanding order 4 herein, the mother on being given four days notice by text message shall collect [X] and [Y] from a place nominated by the father which is not greater than 80 kilometres from the mother’s residence.
The father and the mother do all things necessary to have [X] and [Y] attend upon a therapeutic counselor and continue to attend as directed by the counselor.
Each party shall advise the other of any serious illness or injury suffered by either of [X] and [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party is free to be fully involved in the school lives of [X] and [Y], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and [Y] or any of them, and from permitting any other person so to do.
IT IS NOTED that publication of this judgment under the pseudonym Sellwood & Wallace is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BENDIGO |
MLC 9441 of 2010
| MR SELLWOOD |
Applicant
And
| MS WALLACE |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
This very sad matter relates primarily to the frequency that the parties’ daughters, [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”), spend time with their father.
The father is seeking orders that [X] and [Y] spend each alternate weekend with him from 5.30 pm Friday until 5.00 pm Sunday. The mother seeks orders that this time occurs on each third weekend.
The father also seeks orders that [X] and [Y] attend upon a therapeutic counsellor to assist them in dealing with the difficulties the mother causes in their ability to have a meaningful relationship with their father.
To their credit, the parties have reached agreement in respect of the arrangements for school holidays and special occasions, as well as the changeover arrangements, given the parties live 80 kilometres apart. Those agreements will form part of my orders made this day.
Background
The father was born [in] 1968. He is 43 years of age. He is a [occupation omitted] by profession. He lives in [B], which is about 14 kilometres north of [S].
The mother was born [in] 1966. She is 45 years of age. She works part-time as a [occupations omitted]. She and the children live with her mother in [W], which is about 70 kilometres south of [S].
The mother has three older children from a previous relationship: [A], who was born [in] 1982; [B], who was born [in] 1994; and [C], who was born [in] 1996. My understanding is that [B] and [C] also live with the mother. None of the mother’s older children have any relationship with their fathers.
The parties commenced their relationship in 1998, and commenced living together either from November 2002, according to the father, or early 2003, according to the mother, when the mother, her older children, and [X] and [Y] moved to the property owned by the father.
The parties separated on 27 December 2007, when the father accused the mother of putting sugar in the petrol tanks of his motor bikes, an accusation vehemently denied by the mother. She and the children returned to live with the maternal grandmother in [W], where they continue to reside to this day.
After separation the father spent very, very limited time with [X] and [Y]. From mid-2008 to early 2009, the father moved to Western Australia for work. During this period, [X] and [Y] spent time with the paternal grandmother.
Upon his return from Western Australia, the father attempted to make arrangements to spend regular time with [X] and [Y], but the mother resisted any such attempts to do so, saying that [X] and [Y] were distressed after any time with their father.
Accordingly the father spent very limited time with the girls, and did not see them during this period for their birthdays, Christmas or Father’s Day. Nor did he spend any holiday time with them.
Having spent almost no time with [X] and [Y] in 2010, the father instituted these proceedings. On 24 November 2010, interim orders were made by consent which made provision for [X] and [Y] to spend time with their father from 5.30 pm Friday to 5.00 pm Sunday on
3 December 2010, 5.30 pm Friday to 5.00 pm Sunday on 18 February 2011 and for two five-day block periods over the 2010/2011 long summer vacation.
On 28 February 2011, further interim consent orders were made which provided for [X] and [Y] to spend the weekends of 18 March 2011 and 13 May 2011 with their father, as well as a week in the first term holidays.
Those orders also provided that a Family Report be prepared. Mr O, a Regulation 7 Family Consultant with this court, prepared a Family Report dated 18 April 2011. In that Report, Mr O noted at page 16, under the heading “Evaluation”, the following:
· Ms Wallace presented as determined that the girls not be forced to do more than they can manage. She was very much viewed as the gatekeeper of arrangements and otherwise a good and protective mother. She also presented as having no consideration that the girls spending time with Mr Sellwood could be of any value to them. The writer notes that Ms Wallace has never had to share the older children in this way. Her attitude seemed to be exclusive rather than inclusive of
Mr Sellwood. She argued that he has never been included in their lives and sees that their struggle emanates from this lack of participation in the past. Mr Sellwood disagreed.· Mr Sellwood was viewed as having the potential to be a good father if allowed. He seemed open to flexibility and simply at a loss as to what to do to stop the abuse of the girls.
· The girls seemed genuine in their distress. This seemed to stem from the impasse of the parents rather than any significant concern about Mr Sellwood.
· There seemed to be significant focus on the adult separation, especially by Ms Wallace who showed little or no willingness to be inclusive or encourage a connection.
· It is difficult to see how the parents would communicate on significant issues.
· Equal time would be too distressing for the girls and given the distance would not be particularly practical. It was not sought by Mr Sellwood. Time other than that as suggested by
Mr Sellwood would also be impractical. In essence
Mr Sellwood’s proposal seemed generally practical.· It appeared that the parents need assistance to get beyond their impasse and that Court Orders have provided structure but not addressed the impasse. This seemingly has put the children and parents in a difficult situation.
· If the family lived nearer to an exchange centre this might well assist. The nearest is almost two hours drive away for both.
· If the family lived in Melbourne, specialist family therapy might assist. This too is too far away to be considered.
· Mr Sellwood suggested counselling for the girls. This would possibly be the only way to seek information from the girls as it appeared that they will require a therapeutic relationship with someone before opening up.
· Therapeutic counselling for the parents would seem appropriate. The difficulty is in finding someone specialised enough and skilled enough to work through the issues they have presented.
· In essence there needs to be an attitudinal shift, especially by Ms Wallace, to support any therapeutic intervention for the girls and for the girls to be able to have a positive relationship with their father.
Under the heading “Recommendations” in this same Report, Mr O set out the following:
· The parents to attend a post separation parenting course.
· The girls to attend therapeutic counselling and such counselling to assist Ms Wallace and Mr Sellwood to understand the plight of the girls. [omitted] Family Care or a private practitioner of the parents choosing or [omitted] might be able to assist. Again, this would depend upon the skill base of the chosen practitioner.
· The writer suggested to the parents and respectfully suggests to the Court that a second report be Ordered for later in 2011 with the view that therapeutic counselling is provided to the girls and the parents and the parents attend a post separation parenting course. If this occurred the writer would undertake to see the girls and parents on two or three occasions between the time of the Order and the return date and to liaise with the therapeutic counsellor. The aim of this would be to assist in shifting the impasse. A short report would then be provided with clear recommendation for Final Orders if possible. If this is accepted than the writer respectfully suggests that the current Orders remain and there be consideration of some change to the exchange so as to avoid the impasse that occurs.
· Finally, the writer respectfully suggests that special occasion dates are determined for 2011, that Mr Sellwood be provided with the usual authority afforded a parent in respect to School and any professionals involved and suggests the consideration of an independent children’s representative who is based as close to the girls as possible.
When the matter next came before the court on 24 May 2011, the court made interim orders for [X] and [Y] to spend specified alternate weekend time with the father; one week in each of the second and third term holidays; for [X] and [Y] to undertake therapeutic counselling; and for an updated Family Report to be prepared.
Generally, [X] and [Y] have spent time with their father in accordance with the court orders made on 24 May 2011.
The Evidence
Given the limited nature of the outstanding areas of dispute between the parties, the parties only gave very brief viva voce evidence at the final hearing of the matter. Neither party filed updating affidavit material outlining how [X] and [Y]’s time with their father had gone post the 24 May 2011 orders.
The Father’s Evidence
It was the father’s evidence that his collection of [X] and [Y] from the mother’s home continues to be rather vexed, with [X] and [Y] at times being tearful and reluctant to depart from their mother.
It was his evidence that they settle very quickly after leaving their mother’s home.
It was the father’s evidence that [X] and [Y] play [sports omitted], and that in accordance with his commitment given in May 2011, he ensures that the girls attend all their extra-curricular and social activities when he has them in his care. He currently collects [X] and [Y] from [omitted] training on Friday night, and takes them to their [omitted] games on Saturday morning.
It was his evidence that he would continue to ensure the girls would participate in their extra-curricular and social activities if they were to continue to spend time with him on alternate weekends. He did, however, note that if there was a special family or like event, such as the recent 40th birthday of a close family friend, he would seek to have the flexibility to attend such events, even if it meant [X] and [Y] were to miss their commitments on these rare one-off occasions.
It was the father’s evidence that he did not advise the mother that he was taking [X] and [Y] to Melbourne for the 40th birthday referred to in the previous paragraph of this judgment, as he did not feel he had to tell her.
The father gave evidence that [X] and [Y] had only seen a therapeutic counsellor on two occasions since the 24 May 2011 orders, as the mother refused to take them to see that counsellor. He was of the strong view that it would be very much in [X] and [Y]’s best interests to have such counselling, especially given the mother’s complete lack of support to them having any relationship with him.
It is the father’s evidence that he believes that when [X] and [Y] are older and their views and wishes given much greater weight, that in the face of the mother’s overt opposition to them having a relationship with him, they will choose not to spend regular time with him.
Accordingly he seeks orders that [X] and [Y] spend as much time with him now as is possible, in order for their relationship to be consolidated and to form the base upon which it can survive into the girls’ adult years.
The Mother’s Evidence
It is the mother’s evidence that [X] and [Y] do not want to spend alternate weekends with their father, and that they become very distressed when required to do so, both prior to their departure and upon their return.
It is the mother’s evidence that [X] and [Y] should be able to enjoy their lives in their home environment, visiting friends, having sleepovers and just generally “hanging out”, without the interruption of having to spend every alternate weekend with their father.
It was the mother’s evidence that she did not believe [X] and [Y] required ongoing therapeutic counselling. However, on closer cross-examination, her resistance to orders for therapeutic counselling seemed as much about the inconvenience to her of getting [X] and [Y] to such counselling. She gave evidence that, when not working at [omitted], she [occupation omitted], and she would not be able to take [X] and [Y] to any counselling after school.
The mother was cross-examined about a document headed “The [P] Camp” that [X] had recently shown her father last weekend when spending time with him. It relates to a summer camp between
2 January 2012 and 9 January 2012, and is clearly in [P]. It was the mother’s evidence that [X] had brought the notice home from school, asking if she could go, as a close school friend who had gone to the camp last year was again attending and wanted [X] to come with her.
It was the mother’s evidence that as this camp occurs during the period [X] and [Y] would be with their father (the arrangements agreed between the parties allows for [X] and [Y] to spend two weeks with the father commencing 27 December each year to coincide with his holidays) she told [X]:
“It was fine by me, but she would have to ask her father because it would be during his time.”
When the mother was challenged as to what message this sent [X] in the context of the importance of her time with her father, it was the mother’s evidence:
“So it is okay if I say she can go during my time, but not for the father to do so.”
The mother was asked what she does to encourage [X] and [Y]’s relationship with their father, and what she does when they allegedly tell her they do not want to go with him. It was her evidence that she packs their bags, gets them ready and tells them they have to go, and that:
“sometimes in life we have to do things we do not want to.”
Mr O
As noted previously in this judgment, Mr O is a Regulation 7 Family Consultant with the Federal Magistrates Court. Subsequent to his Family Report of 18 April 2011, Mr O prepared an Updated Family Report dated 11 November 2011. Mr O also gave viva voce evidence at the hearing of this matter.
In his Updated Family Report, under the heading “Evaluation”, Mr O stated the following:
1.From discussion with Ms B, she viewed Ms Wallace as a gatekeeper and the one who can give permission for the girls to attend. She was seemingly supportive of
Mr Sellwood and his attempt to have a meaningful relationship with the girls and critical of Ms Wallace for a slow start to attendance with her and suggested that there may have been a passive frustration of the process. She also suggested that the girls may have been conditioned to operate in the way that they did as was seemingly concerned about the impact upon them if this is the case. She suggested that they may require ongoing counselling. Finally, Ms B commented upon Mr Sellwood’s level of patience and management of self throughout the journey of trying to secure a significant relationship with his daughters.
2.Again, Ms Wallace presented as determined that the girls not be forced to do more than they can manage. She was very much the gatekeeper of arrangements and otherwise is clearly a good and protective mother. She was also consistent in presenting a view that the girls being forced to spend time with Mr Sellwood would be of little value to them. The writer notes that Ms Wallace has never had to share the older children in this way. Her attitude seemed to be exclusive rather than inclusive of Mr Sellwood. She argued that he has never been included in their lives and sees that their struggle emanates from this lack of participation in the past. Mr Sellwood disagreed.
3.Again, Mr Sellwood was viewed as someone who has the potential to be a good father if allowed. He seemed open and flexible and remained at a loss as to what to do to assist in the parents settling on an agreed upon regime of two weekly or three weekly. However, he was steadfast in his proposal that the regime should be fortnightly. He clearly had trust in Ms Wallace being genuine in her desire to share the girls and see his involvement as of value.
4.This time the writer considered that the girls seemed strategic in their presentation. (This relates as an aside to the girls’ refusal to speak at to Mr O.) The writer was aware that they had spoken with Ms B but could not get them to speak at all with the writer. This was a situation never before experienced by the writer with other children. It may stem from the impasse of the parents. Again, the writer advised the girls that without information from them the Court could only rely on the information of the parents. They met with both parents in the room and remained mute. Clearly, they made a choice not to engage.
5.There seemed to be significant focus on the issue of two weekly or three weekly time spent. Ms Wallace showed little willingness to be inclusive or encourage an emotional connection between the girls and their father on the basis that they do not want this.
6.It is difficult to see how the parents would communicate on significant issues without the assistance of a third party. Separately they were pleasant and charming and
co-operative.7.Mr Sellwood’s proposal seemed generally practical. His reasoning about having limited availability to interact with the girls before they were of an age to restrict him seemed very plausible.
8.It appeared that the parents need assistance to get beyond their impasse and that Court Orders have provided structure but not addressed the impasse. This seemingly has left the children and parents in a difficult situation.
9.Again, if the family lived in Melbourne, specialist family therapy might assist. This too is too far away to be considered.
Under the heading “Recommendation”, Mr O noted:
The writer respectfully suggests that the parents require the support of a determination about usual time spent being fortnightly or three weekly. It is understood that all other aspects have the potential to be resolved.
In his viva voce evidence, Mr O was specifically asked if he had a view on two versus three-weekly visits between [X] and [Y] and their father. He indicated that he thought three-weekly visits would work, as the mother would agree and support the girls with such a regime, thus removing the burden of her disapproval from them.
It was his evidence that from a practical perspective, a fortnightly regime would also work, but he remained concerned that [X] and [Y] would be reactive to such a regime, as would be the mother.
Mr O described the mother’s presentation as passive. By way of explanation, he noted that whilst there was no overt aggression from the mother to the father, there was a clear resistance by her to [X] and [Y] being involved with their father in any way.
It was his evidence that it was very apparent the mother sees absolutely no value for [X] and [Y] in having a relationship with their father.
It was Mr O’s evidence that [X] and [Y] would be very aware of their mother’s negative views of their father, and of them having a relationship with him, and that while she may not overtly say to them that she does not want them to go with their father, they will have picked up that she in fact does not want them to go, and that she does not see any benefit in them so going.
Mr O suggested that an alternative approach to the parents’ impasse on the frequency of the weekend time that [X] and [Y] spend with their father would be to consider the number of visits to be taken each term by the girls, rather than whether it be two or three-weekly.
Finally, Mr O was of the strong view that therapeutic counselling for [X] and [Y] would be of benefit to them.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Section 61da of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Both parties agree that orders should be made for them to have equal shared parental responsibility for [X] and [Y]. Given the mother’s attitude to the father’s involvement in their lives, it will be vitally important that orders are made that confirm the father is and must be involved in his daughters’ lives, and I am absolutely satisfied that such an order is in their best interests.
Where the parents have equal joint parental responsibility for a child, section 65daa of the Act requires the court to consider the children spending equal time, or substantial and significant time, with each parent. Section 65daa(1) of the Act provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65daa (5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
There is no proposal by either party for equal time and that is appropriate in the circumstances of this matter. The question is, what arrangement would best allow [X] and [Y] to spend significant and substantial time with their father?
When determining what arrangements should be put in place for children, the Act quite clearly sets out that the orders the court must make be in the children’s best interests.
In order to determine what is in the children’s best interests, the court has to consider the matters set out in section 60cc(2) and (3) of the Act. Each of the matters set out in those subsections are to be considered and assessed in the context of each of the parties’ behaviours and proposals, and a decision then made as to which of those proposals, or such other proposal as the court may determine, will be in the best interests of the children.
Section 60 cc (2) of the Act sets out the primary considerations, which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[X] and [Y] have always lived in their mother’s primary care, and have a close and loving relationship with her, as they do with their siblings and maternal grandmother.
I am also satisfied that it is very much in [X] and [Y]’s best interests they are afforded the opportunity to have a meaningful relationship with their father. To date, I am satisfied the mother has prevented that relationship from developing between [X] and [Y] and their father, as she cannot see its’ importance or benefit for her daughters.
[X] and [Y] are now starting to develop a meaningful relationship with their father because of this court’s insistence that they spend time with him. This is all to the good, and any orders made must ensure that that relationship is allowed to continue to grow and to be consolidated.
I am also satisfied both parents will not pose a risk to the girls, either physically or psychologically. But with one very large rider, and that being the risk to [X] and [Y] if their burgeoning relationship with their father is put at risk by the mother because of her lack of appreciation of the importance of that relationship to both of the girls.
Mr O touched very briefly on the research that has been undertaken into the impact on children who do not have a relationship with both their parents. He mentioned that the research had identified possible negative outcomes for these children including the potential for early school leaving, depression and an inability to form satisfactory adult relationships. It may be of real benefit to the mother to obtain further information in relation to this research to perhaps help her realise the harm she could do to [X] and [Y] if her current views continue to hold sway.
Section 60(3) of the Act sets out the additional considerations to be taken into account, and each of those will be considered in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
We do not actually know what [X] and [Y]’s views are, as they refused point blank to speak to Mr O on the two occasions that they met with him. Whether that was as a result of interference from other parties, or whether, as Mr O posited, it might have been a gender issue as they spoke openly with Ms B, cannot be known.
The mother has indicated to the court that the girls tell her that they do not want to go to their father’s as often as they are currently required to.
The father gave evidence to the court that when they are out of the mother’s sphere of influence, [X] and [Y] have a great time with him and thoroughly enjoy their interaction with him.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
I have already commented that clearly [X] and [Y]’s primary relationship is with their mother, and that they have a growing relationship with their father.
[X] and [Y] would appear to also have positive interactions with the paternal extended family, including the paternal grandmother, other cousins, aunts, uncles and the like.
Similarly, their three elder siblings are very close to them, as is the maternal extended family, particularly, I am assuming, the maternal grandmother with whom they live.
All these relationships are vitally important to [X] and [Y], and must continue to be supported.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account
sub-section 60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
It is very apparent to this court that the mother struggles with facilitating [X] and [Y]’s relationship with their father. Mr O noted her to see absolutely no value to the girls in that relationship, and because of that, she has an enormous difficulty in fostering the relationship and convincing the girls of the positive benefits to them in spending time with their father. [X] and [Y] are very much aware of their mother’s views of their father. This is enormously sad for [X] and [Y].
Mr O describes the father in very positive terms, and comments on the potential he has to be a very good father to both of his daughters, if only allowed to do so. Any orders that are made by this court must enable him to be able to do just that.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Since the parties separated in 2007 [X] and [Y] have continued to reside primarily in the care of their mother.
Since the initial interim orders were made in these proceedings in late 2010, [X] and [Y] have spent consistent and regular time with their father.
Neither party’s proposal will involve a substantial change in [X] and [Y]’s circumstances in that both proposals provide for them to continue to live with their mother and spend consistent and regular time with their father.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties live, relatively speaking, fairly close to each other. They are less than an hour apart. I am satisfied there are no practical difficulties in orders being made for [X] and [Y] to spend regular time with their father.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that both parents have the capacity to provide for [X] and [Y]’s physical, intellectual and emotional needs. Again, however, I make the observation this is subject to the rider of the possible long-term negative impact on both girls if their relationship with their father is not encouraged and allowed to grow.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Mr O described the mother as being a very good mum. And she is. She looks after her children extraordinarily well, save and except for her inability to appreciate the importance to [X] and [Y] of their relationship with their father.
Similarly, whilst the mother has challenged the father’s commitment to the girls, I am satisfied that he is desperately wanting to be the best father he possibly can to his daughters, and, if afforded the opportunity to do so, will prove to be a positive influence and a responsible dad.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the context of this matter I think it is going to be very important to make an order that balances the tensions for [X] and [Y] against the needs and desires of both their parents.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
I have already noted that, to their credit, the parties have been able to agree on arrangements around holidays, special occasions and the like, and one can only hope that that level of cooperation can continue to grow and that the parties are able to put in place appropriate arrangements for [X] and [Y] into the future.
I was very concerned with the evidence I heard this morning in relation to neither party bothering to advise the other of any changes in arrangements for [X] and [Y]. Text messages are not hard to send. It is only appropriate, if [X] and [Y] are not going to be at [sport omitted], if they are going to be at their cousin’s first birthday, that a text message is sent saying “Pick them up from home, not [omitted]”.
Similarly, if the father is taking [X] and [Y] to Melbourne for the weekend, he should advise the mother.
There needs to be real consideration made by the both parties about how they are going to communicate in relation to their daughters, particularly given that both have indicated agreement to orders being made for shared parental responsibility. The parties are going to have to make decisions about where [X] and [Y] go to school, about medical treatment, about overseas travel and accordingly whatever might be the level of distrust and antipathy between them, they will need to work out a way to communicate between themselves as their daughters’ parents.
Conclusion
I started off my judgment by calling this a very sad case, and I actually think it is. I think there are a couple of sad little girls at the moment, because of the inability of their parents to reach agreement about the arrangements for them, and because of the mother’s inability to encourage and allow them to love their dad. The only people who ultimately will be damaged if there is not an adjustment to those views will be [X] and [Y]. I can only hope, for their sake, that there starts to be a real shift in attitude.
As noted, I am being asked, really, to only decide a couple of quite discrete issues. The major one is the frequency with which [X] and [Y] are to spend time with their father during school terms. The father is seeking orders that it be alternate weekends. The mother is seeking orders that it be every three weekends.
Mr O had real concerns as to the impact on the girls in the event orders were made for fortnightly time with their father. He also had real concerns about the impact on the girls if the orders were such that they were not able to spend appropriate regular time with their father.
He suggested that, rather than committing to either two weeks or three weeks, this court contemplate orders that would make provision for there being a set number of weekends in each term in which the girls were to spend time with their father, which would enable both parents’ views, on some level, to be accommodated.
I am of the view that in each school term it will be in [X] and [Y]’s best interests that they spend four weekends in each school term with their father. Accordingly, the orders I am intending to make will provide that they will spend the first, fourth, sixth and eighth weekends of each school term with their father.
In relation to therapeutic counselling for [X] and [Y], I am very concerned for the wellbeing of these two young girls. I believe that it is vitally important for them that they have an opportunity for someone to assist them traverse the difficulties they are currently experiencing in relation to the relationships that they have with their parents, and in particular with their father. Whilst I appreciate that taking them to such counselling creates some practical difficulties for the mother, my ultimate concern is for [X] and [Y], and I intend to make orders that they undergo therapeutic counselling.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 5 December 2011
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