Simmonds and Bray

[2012] FamCA 77

FAMILY COURT OF AUSTRALIA

SIMMONDS & BRAY [2012] FamCA 77

FAMILY LAW - CHILDREN – parental responsibility – with whom children shall live and spend time – mother withdrew from proceedings – variation of prior final parenting orders - children have a meaningful relationship with father – children have not spent time with the mother over the last two years – where children’s relationships with mother have deteriorated markedly – father’s allegations of violent behaviour by the mother towards him – children reported to the Family Consultant their exposure to family violence in the care of the mother in the past – need to protect the children against the risk of both physical and psychological harm in the mother’s care – children opposed to spending time or having any form of communication with the mother - weight accorded to children’s views – pressure applied on children to participate in parental conflict - no orders made about when and how the children should spend time and communicate with the mother – presumption of equal shared parental responsibility rebutted - orders varied allocating sole parental responsibility to father

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Allesch v Maunz (2000) 203 CLR 172
Goode & Goode (2006) FLC 93-286
Marsden v Winch (2009) 42 Fam LR 1
MRR v GR (2010) 240 CLR 461
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363
Taylor v Taylor (1979) 143 CLR 1

APPLICANT: Mr Simmonds

RESPONDENT: Ms Bray

FILE NUMBER: NCC 1764 of 2011

DATE DELIVERED: 29 February 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 6 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Harpers Legal

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. All former parenting orders relating to the children M, born … September 1999, and T, born … July 2001, (“the children”) are discharged.

2. The father shall have sole parental responsibility for the children.

3. The children shall live with the father.

4. Pursuant to s 68B of the Family Law Act1975 (Cth) the mother is restrained from entering upon or approaching within 100 metres of:

   (a)       The father’s residence; and

   (b)       Any school attended by either child.

5. The father shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.

6. Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

7. Each party is restrained from permitting the children to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively, and shall take all reasonable steps to ensure that the parties are respectively called only those names by the children.

8. The father shall notify the mother of any medical emergency, illness or injury suffered by the children whilst in his care warranting treatment by a third party, and the father shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the children.

9. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

10. The father shall deliver the children to the Family Consultant within 7 days of these orders, whereupon the Family Consultant shall explain these orders to the children.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

12. Any and all outstanding applications are dismissed.

Notations

(A)No orders are made providing for the children to spend time or communicate with the mother, which is not intended to indicate that they will never do so, but rather such decisions shall be made by the father as an incident of his sole parental responsibility for the children.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmonds & Bray 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 NEWCASTLE

FILE NUMBER: NCC 1764 of 2011

Mr Simmonds

Applicant

And

Ms Bray

Respondent

REASONS FOR JUDGMENT

Introduction

1. The bitterness between the parties to these proceedings is so acute that the respondent mother has not been permitted by either the applicant father or the children to participate in the children’s lives for the past two years. The father wanted the Court to vary past parenting orders in a way that would then permit the children to dictate the continuing exclusion of the mother from their lives, and his proposal was supported by the Family Consultant.

2. The chaos in the mother’s life appears to have sapped her of confidence and enthusiasm. She was unable to muster the effort to participate in the litigation. The trial therefore proceeded on an undefended basis.

3. Although the evidence of the father and Family Consultant was unchallenged, the amended orders proposed by the father were unattractive. Nonetheless, the undoubted corrosion of the children’s relationships with the mother necessitated changes to the parenting orders last made in June 2006.

Short backround

1. The parties previously engaged in litigation concerning their two children between 2004 and 2006.

2. In December 2005, interim parenting orders were made changing the children’s residence from the mother to the father.[1]

   [1] Family Consultant Assessment, page 2

3. Final parenting orders were made by the Court following a trial on 23 June 2006.[2] The orders were comprehensive and prescribed that:

   [2] Father’s affidavit, par 4

   a)The parties have “joint responsibility” for the long-term care, welfare and development of the children (Order 2);

   b)The children would live with the father when not living with the mother (Order 5);

   c)The children would live with the mother:

   i)Each alternate weekend and for parts of school holiday periods until January 2007 (Order 6), and thereafter, each alternate week (Order 7(a)), subject to the child representative certifying in writing that the mother had complied with other orders requiring her submission to therapy, completion of a “Parents in Contact” course, and avoidance of denigration of the father and other family members (Orders 7(a)(i), 14, 15, 18). In the absence of compliance with the stipulated conditions the children’s residence with the mother remained restricted to each alternate weekend (Order 7(a)(ii));

   ii)As from April 2007, one half of each school holiday period (Order 8);

iii)As from December 2007, and each alternate year thereafter, several days over Christmas (Orders 9 and 10); and

iv)Each Mother’s Day weekend (Order 13(b)).

d)The children would communicate with the non-residential parent by telephone each Tuesday and Thursday evenings and on their birthdays (Orders 12 and 13(a)), free from interference (Order 23).

1. Perhaps in recognition that the orders relating to the children’s residence with the mother were somewhat complicated, the Court granted leave to the parties and child representative to re-list the matter before the Court on one month’s notice if further orders were needed to regulate that issue (Order 7a(iii)). Despite the problems which subsequently arose, neither party nor the child representative availed themselves of that liberty.

2. The children began living with the mother each alternate weekend in accordance with the orders,[3] but implementation of the orders did not occur without incident.

   [3] Father’s affidavit, par 21

3. As the residential transition date in January 2007 approached, at which point the parenting regime was intended to transform to a weekly rotation between households, the father made inquiries about the mother’s fulfilment of the conditions precedent to enable such transition. The child representative confirmed in writing in early February 2007 that he could not certify the mother’s compliance with the conditions.[4]

   [4] Father’s affidavit, par 14

4. In those circumstances, the father believed the children would continue to live with the mother only each alternate weekend and each alternate Christmas.[5] While I accept the father’s belief was genuine, it was nonetheless wrong. Despite the mother’s failure to fulfil the conditions, the orders still provided for the children to live with her for one half of each school holiday period after April 2007 and each Mother’s Day weekend (Orders 8 and 13(b)).

   [5] Father’s affidavit, par 16

5. So far as the father is aware, the child representative has still not certified the mother’s compliance with the orders,[6] but that would now be impossible because the appointment of the child representative expired years ago on 23 February 2007 (Order 25).

   [6] Father’s affidavit, pars 17-18

6. The mother requested the father’s permission for extra time within which to fulfil the orders but he refused and mistakenly confined the children’s residential time with her to alternate weekends and some days over the Christmas periods.[7] That situation prevailed for several years until April 2010.[8] The father considers that he generously allowed the alternate weekend residence of the children with the mother to continue through school holiday periods,[9] whereas in fact the children ought have been living with the mother for half of each school holiday period in addition to each alternate weekend.

   [7] Father’s affidavit, pars 19, 26

   [8] Father’s affidavit, par 22

   [9] Father’s affidavit, par 23

7. The children continued to have telephone communication with the mother in accordance with the orders until April 2010.[10]

   [10] Father’s affidavit, par 25

8. There was a change to arrangements in April 2010, which was the last time the children lived or spent time with the mother.[11]

   [11] Family Consultant Assessment, page 2

9. On 24 April 2010 the children were returned to the father by the mother earlier than expected. The children were highly distressed by behaviour of the mother and her partner, which included threats of serious physical harm being occasioned to the father and threats of physical violence to at least the eldest child. The matter was reported to police, who subsequently applied to the Local Court of NSW for a family violence order for the protection of the children and the father. The application was later dismissed, but the father still ceased complying with the parenting orders because the children “refused to attend any contact weekends with the mother”.[12]

   [12] Father’s affidavit, pars 45-60

10. In May 2010 the father wrote to the mother explaining how the children did not wish to see or telephone her any more, but that if she insisted, he would only permit it to occur under professional supervision, at the mother’s expense, for two hours every second Sunday morning. The children, who were then aged only 10 and 8 years respectively, read and signed the letter at the father’s direction or invitation.[13]

    [13] Father’s affidavit, pars 63-64

11. Although the mother demanded the father’s compliance with the existing parenting orders,[14] the father refused, even though he was informed he could not unilaterally breach the orders.[15] The father knew he had to make a concerted effort to send the children to the mother,[16] but he still failed to do so.

    [14] Father’s affidavit, pars 66-68

    [15] Father’s affidavit, pars 70-71

    [16] Father’s affidavit, par 75

12. The mother made attempts to entreat the children back to her with gifts, but the father helped the children to write and send a letter to her directing her not to send any more presents and to leave them alone.[17] Attempts by the mother to continue the telephone communication were also rebuffed.[18]

    [17] Father’s affidavit, pars 86-92

    [18] Father’s affidavit, pars 93-95

13. The father considers he did everything in his power to encourage the children to live and communicate with the mother in accordance with the orders,[19] but by Christmas 2010 he decided he would no longer try.[20] Since then, he has not reminded the children of the need to spend time with the mother and the children have not requested it.[21]

    [19] Father’s affidavit, pars 96-97

    [20] Father’s affidavit, pars 98-104; Family Consultant Assessment, page 7

    [21] Father’s affidavit, pars 105-107

14. The children did not see or speak with the mother between December 2010 and June 2011.[22] The mother failed in an attempt to see the children at school in June 2011[23] and she then commenced contravention proceedings against the father, which she later discontinued.[24]

    [22] Father’s affidavit, par 109

    [23] Father’s affidavit, pars 137-138

    [24] Father’s affidavit, pars 155-160

15. The children are now aged 12 and 10 years respectively.[25] They continue to have no interaction of any sort with the mother.

    [25] Father’s affidavit, par 1

Proposal and primary evidence of the father

1. The father pressed for the orders set out within his Initiating Application filed on 17 October 2011, which orders were repeated in a document entitled “Proposed Minute of Orders Sought”, filed on 1 February 2012.

2. The father’s proposal entailed:

   a)Dismissal of prior parenting orders relating to the children (Order 1);

   b)Allocation of sole parental responsibility for the children to him (Order 2);

   c)The children living with him (Order 3); and

   d)The children spending time with the mother at and during the times desired by them (Order 4).

3. The father relied upon the evidence contained within:

   a)His affidavit filed on 23 November 2011;

   b)The Notice of Address for Service filed by the mother on 27 July 2011;

   c)The four affidavits of service sworn by his lawyer, Ms Rebecca Harper, filed on 23 November 2011, 1 December 2011, and 1 February 2012; and

   d)The affidavit affirmed by the Family Consultant, Ms D, on 18 October 2011.

4. In the absence of the mother, the father’s evidence was unchallenged.

5. The Family Consultant was not required for cross-examination by the father.

Absence of the mother

1. The mother previously filed contravention proceedings against the father.[26] In the context of those proceedings the mother filed a Notice of Address for Service on 27 July 2011 notifying her address on the mid north coast of NSW. Those proceedings were discontinued when the mother filed a Notice of Discontinuance on 24 August 2011.[27]

   [26] Father’s affidavit, par 155

   [27] Order 1 and Notation A made on 26 October 2011

2. Once the father commenced the current proceedings he relied upon the mother’s recent disclosure of her address for the purpose of her service with his documents.

3. Personal service upon the mother at her residential address was unsuccessfully attempted in early November 2011.[28] Those attempts were made by a sheriff’s officer who attended the mother’s address and spoke with a male occupant, who informed the officer that the mother was away in Sydney. Some days later he telephoned the home and was told by a man identifying himself as “[B]” that the mother was out and would be back later. Another personal attendance at the home resulted in the male occupant confirming the mother was not home, even though a car believed to be owned by the mother was parked at the property. The children previously reported to the Family Consultant that the mother’s partner’s name was “[B]”.[29]

   [28] Affidavit of Service filed 23 November 2011

   [29] Family Consultant Assessment page 5

4. I draw the inference from those circumstances that in November 2011 the mother was still resident at the same address as she was in July 2011.

5. On 23 November 2011 the Registrar ordered that the father was permitted to serve the mother by post.[30] Pursuant to those orders the father served the mother by post at the same address. Copies of the father’s affidavit filed on 9 November 2011, orders of the Court made on 23 November 2011, and an explanatory letter by his solicitor dated 25 November 2011 were all sent to the mother.[31] The father notified the Court he had already posted a sealed copy of his Initiating Application to the mother at the same address,[32] which he subsequently confirmed by filing another affidavit of service.[33]

   [30] Orders 1 and 10 made on 23 November 2011

   [31] Affidavits of Service filed on 1 December 2011 and 1 February 2012

   [32] Notation B made on 23 November 2011

   [33] Affidavit of Service filed on 1 February 2012

6. The father’s solicitor’s letter notified the mother that the father’s Application was listed for undefended hearing before the Court on 3 February 2012 and confirmed the nature of the parenting orders proposed by the father. The mother was therefore in no doubt about the new parenting regime sought by the father and when the case would be determined.

7. Despite that knowledge, the mother failed to file any Response, as the Court orders of 23 November 2011 made plain she could do.[34] Nor did she appear at Court on 3 February 2012 for the trial.

   [34] Order 8.1 made on 23 November 2011

8. In the circumstances, I am satisfied the mother was aware the proceedings were pending, cognisant of the outcome proposed by the father, and disinclined to participate. The trial therefore proceeded on an undefended basis. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

1. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

2. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

3. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

4. In order to thwart the prospect of endless litigation over children, principles evolved to permit the Court to dismiss subsequent parenting proceedings if there are no material changes in circumstances and no revelation of some previously unknown feature of material relevance since litigation was last finalised in respect of such children (see Rice v Asplund (1979) FLC 90-725 at 78,905; SPS v PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 at [48]).

5. The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by preliminary inquiry or by more comprehensive hearing (see Marsden v Winch at [46-47]; Miller v Harrington (2008) FLC 93-383 at [80-83]), but whichever stage the determination is made, application of the Rice v Asplund principle is merely a manifestation of the principle that the subject child’s best interests are the paramount consideration (see Marsden v Winch at [55]; Miller v Harrington at [101]).

6. In order to permit timely and unhurried evaluation of the evidence of changed circumstances adduced by the father, the hearing of the matter was adjourned from Friday 3 February until Monday 6 February 2012. As the following reasons reveal, circumstances have undoubtedly materially changed since orders were last made in respect of the children by the Court, which is the trigger for review of those orders. The relationship between the parties is now completely fractured and the relationships between the children and the mother have seriously deteriorated. Changes to the existing orders are therefore necessary.

Best interests of the children – primary considerations

1. The children clearly have meaningful relationships with the father, which must be maintained.

2. Conversely, their relationships with the mother have deteriorated markedly. Although seemingly overlooked by the father, a serious issue in the proceedings was whether the children would benefit from rejuvenation of their relationships with the mother. Having regard to the strongly expressed views of the children and the evidence of the Family Consultant, they are not likely to derive benefit from those relationships in the short term. However, the disadvantage they suffer in the longer term as a consequence of excision of the mother from their lives is a moot point.

3. The deterioration of the children’s relationships with the mother was said to have its genesis in the mother’s chaotic and unpredictable behaviour. Such conduct was the subject of extensive evidence by the father and comments made by the children to the Family Consultant.

4. The father alleged gross behaviour by the mother over a long period of time, including physical assaults, threats to stab him, and argumentative confrontations. Dozens of reports have been made to the police.[35]

   [35] Father’s affidavit, pars 27-44, 117-121

5. There have also been numerous unsavoury incidents involving the mother at the children’s school. As a consequence of incidents in August and September 2006 the mother was banned from attending the school until the end of 2007 and an apprehended violence order was taken out against the mother for the protection of the principal.[36] The children were also embarrassed by the mother’s intermittent attendances at their school throughout 2008, 2009 and 2010, which culminated in another ban being issued to the mother following an incident in June 2011.[37]

   [36] Father’s affidavit, pars 111-113

   [37] Father’s affidavit, pars 124-142

6. The children also each reported to the Family Consultant their exposure to family violence when in the care of the mother in the past.

7. The eldest child reported being scared of the mother, who would “swear and scream”. He said she had variously threatened to kill the father and all of them. In answer to an inquiry about what could be done to make him feel safe, the eldest child said the only thing would be to know he never had to see the mother again.[38] The youngest child similarly reported witnessing aggressive behaviour by the mother, which involved screaming, yelling, smashing chattels, a threat to kill the father, and a threat to kill all of them.[39]

   [38] Family Consultant Assessment pages 3-4

   [39] Family Consultant Assessment page 6

8. It is reasonably plain there is a need to protect both children against the risk of both physical and psychological harm caused through their exposure and subjection to abuse and family violence by or when in the care of the mother. That is an influential factor in the outcome of these proceedings.

Best interests of the children – additional considerations

1. The children are adamant they do not wish to spend time with the mother or have any form of communication with her.[40]

   [40] Family Consultant Assessment page 2

2. The eldest child presented to the Family Consultant as articulate and co-operative. He asserted he did not want to communicate with the mother in any way and would not spend time with her even if supervised in a contact centre.[41] He was alarmed by past events at his school involving the mother, which he described as “awful”.[42]

   [41] Family Consultant Assessment page 3

   [42] Family Consultant Assessment page 4

3. The youngest child presented to the Family Consultant as friendly and confident. She even referred to the mother by her first name. She similarly reported not wishing to see or interact with the mother because she did not feel safe around her. She said she would not spend time with the mother even if orders were made that she do so.[43]

   [43] Family Consultant Assessment pages 5-6

4. The Family Consultant considered the children’s experiences of the mother’s behaviour could rationally account for their strong views.[44] She also considered the youngest child’s views to be developmentally appropriate.[45] Despite their relatively young ages, the Family Consultant considered the children’s views should be accorded weight.[46] I repose weight in the opinion of the Family Consultant, who conferred personally with the children, and therefore accord weight to their expressed views.

   [44] Family Consultant Assessment pages 4-5

   [45] Family Consultant Assessment page 6

   [46] Family Consultant Assessment page 8

5. There is no doubt the father genuinely believes the children are advantaged by exclusion of the mother from their lives. He admitted his belief to the Family Consultant, which he justified by reference to the mother’s erratic behaviour.[47]

   [47] Family Consultant Assessment page 7

6. One is left to wonder, however,  how much the children’s expressed wishes not to see the mother are a predictable response to their perception of the father’s opinion that they are better off without her, rather than a reflection of their own independent views developed from their personal experiences with her.

7. There can be no doubt the father has neither the willingness nor ability to foster the children’s relationships with the mother. He candidly confessed that despite his very best efforts as a parent, he was simply unable to convince the children that it was beneficial for them to maintain their relationships with the mother and to persuade them to continue seeing her. He admitted that ultimately he decided it was all just too difficult and he would not even bother to try any more. One can only ruminate on how hard the father tried and the competency of his parenting skills, given his asserted inability to persuade two young children to love and cherish their other parent irrespective of her foibles.

8. The father’s connivance of the children to write letters to the mother informing her of their disinterest in her was either wicked or utterly insightless. Either explanation is an indictment of the father’s parenting capacity. Involvement of the children in that way must surely have indicated to them that the father expected their rejection of the mother.

9. The mother must have been emotionally crushed to realise how the children had been conscripted by the father to exclude her from their lives. It is relatively easy to appreciate how the mother, in the face of that knowledge, may have reacted histrionically, or alternatively, decided to completely withdraw from the proceedings with all optimism about her retention of relationships with her children destroyed. That does not, of course, excuse the mother’s lamentable conduct. Rather, it simply helps contextualise it.

10. Irrespective of the father’s strong views about the mother, it is apparently not his intention to erase all influence of the maternal family in the children’s lives. The father reported to the Family Consultant that the children retain strong relationships with extended members of the maternal family. It seems that the mother is also estranged from members of her own family of origin.[48]

    [48] Father’s affidavit, par 162; Family Consultant Assessment page 7

11. The proposed severance of the relationships between the children and the mother will merely formalise what has been occurring for the last two years, and what was gradually occurring for some years before that. The children will not be required to adapt to any changes in their lives. Discharge of the orders requiring the children to spend time with the mother is seemingly the course least likely to lead to the institution of further proceedings concerning the children.

Parenting orders

1. Although the current consent orders provide for the parties to have “joint responsibility” for the children’s long-term care, welfare and development the Family Consultant considered it is impossible for the parties to share parental responsibility for the children.[49] On the available evidence, that must surely be correct. If the mother cannot bring herself to participate in these proceedings, where the best interests of the children are central to a determination by the Court about their future, it is hardly likely she could rationally communicate with the father directly about issues of long-term importance to the children.

   [49] Family Consultant Assessment page 2

2. The children have lived continuously with the father since December 2005 and are closely aligned with him. Inevitably they must continue to live with him and he must be allocated sole parental responsibility for them.

3. The pivotal issue is whether and under what circumstances the children can spend time and communicate with the mother. Putting to one side any speculation about why it is so, the children’s relationships with the mother are undeniably corroded and the children are highly resistant to recovery of their relationships with the mother. Those features of the evidence are overwhelmingly influential.

4. The Family Consultant considered the mother was presently unable to meet the children’s needs. Her opinion was that if the children spend any further time with the mother it may have a “detrimental affect upon [their] psychological and emotional well-being”.[50] The Family Consultant’s opinion seems probably correct, assuming both the truth and accuracy of the entirety of the father’s evidence.

   [50] Family Consultant Assessment pages 5, 7

5. The Family Consultant recommended against compelling the children to spend time with the mother contrary to their expressed wishes and supported the father’s proposal to implement orders providing for the children to decide when they spend time with the mother.[51]

   [51] Family Consultant Assessment page 8

6. Having carefully considered the evidence and that opinion, I decline to make orders of that type.

7. I am persuaded it is appropriate to vary the existing orders and to refrain from making orders compelling the children to spend time and communicate with the mother contrary to their wishes, but I am satisfied it would be an error to frame the orders in such a way that obligates the children to decide when and for how long they spend time with the mother.

8. Far too much pressure has already been applied to the children to participate in the parental conflict. They should be relieved of that pressure, for whilst ever they remain burdened by that responsibility they will feel the need to continue rejecting the mother in order to deter the mother and satisfy the father. The father should make decisions about the nature of the children’s interaction with the mother as an incident of his sole parental responsibility for them. Consequently, no order is made about when and how the children spend time and communicate with the mother. That will be up to the father. Only time will tell whether he wisely administers that parental responsibility.

9. The orders expressly note that there is no injunction precluding the children from spending time and communicating with the mother.

10. When the children are older and more mature they will be able to make decisions for themselves about the adults with whom they associate. At that point in their lives they will also be able to reflect upon, and make their own decisions about, whether the loss of their relationships with the mother was really due to their own adverse experiences with her erratic behaviour, coercion by the father, or a subtle blend of both.

11. The orders restrain the mother from attending at or near their home with the father and their schools. The children remain apprehensive about the mother approaching them at school.[52] The difficulties that has caused in the past cannot be permitted to continue if the best interests of the children are to be served. Consistency dictates the same exclusion should apply to their home.

    [52] Father’s affidavit, par 143

12. The father is obliged by the orders to authorise the mother’s procurement of school reports for, and school photographs of, the children. Similarly, the father is obliged to notify the mother of any serious illness or injury suffered by the children so she may confer with treating practitioners. If the mother has no interaction with the children it may be of comfort to her to know of their medical and academic progress and to have recent photographs of them.

13. The father is restrained from denigrating the mother, or permitting the children to hear denigration of the mother. In the event that the father eventually relents and encourages the children to see the mother, the same type of restraint binds the mother.

14. Given that at least the youngest child sometimes refers to the mother by her first name rather than the term of endearment “Mum”, the orders require the parties to ensure that the children refer to each of them as “Mum” and “Dad”. Presumably the father would not like the children to address him by his first name and so he should ensure the children do not do so in respect of the mother. Such courtesy by the children is a matter of respect and ensures the primacy of both parents as adult influences in their lives.

15. The orders require the parties to keep each other appraised of their respective contact details. If there is a pang of regret about the passing of the mother from the children’s lives, or a spark of recognition that the mother should again be embraced as an important person in the children’s lives, the parties need to know how to contact one another.

16. Finally, the orders require the father to deliver the children to the Family Consultant in order that the orders may be explained to them by the Family Consultant.

17. As would be apparent from these reasons, I entertain considerable disquiet about the privations endured by the children in the years elapsed since orders were last made in June 2006. Neither party can be particularly proud of how they have handled the family disharmony. Both have compromised the emotional security of the children and seriously disturbed their progression to adulthood. All that can really be said is that the orders set out at the commencement of this judgment meet the best interests of the children on the available untested evidence.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 February 2012.

Associate: 

Date:  29 February 2012