T-P and T
[2001] FMCAfam 120
•11 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
T-P & T [2001] FMCA fam 120
FAMILY LAW – Children – contact – wishes – repeat applications for contact.
| Applicant: | T-P |
| Respondent: | T |
| File No: | ZP2887 of 2000 |
| Delivered on: | 11 July 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 10 & 11 July 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilson |
| Solicitors for the Applicant: | Neimanis & Co, Solicitors, 102 Queen Street, St Marys |
| The Respondent: | Mr T |
| The Childrens Representative: | Ms Wearne, Legal Aid Commission, DX 5 Sydney |
ORDERS
That for the purpose of contact the mother shall deliver the children to the father at Parklea Markets at the start of contact and the father shall return the children to the mother at the same place at the end of contact.
That the mother shall do all things necessary to forthwith authorise each school attended by the children to give the father duplicates:
2.1of each school report as it issues
2.2order forms for school photographs.
That Order 3 dated 20 December 1996 be varied so that hereafter the father shall have contact to the four children LT born 4 December 1984, CT born 30 April 1987, WT born 9 July 1992 and CMT born
9 November 1994 on the first Sunday of each month from 9.00 AM until 5.00 PM only.That in the event that L is unable to attend contact the mother may withhold the children from contact provided:
4.1make up contact is provided the next weekend
4.2order 4 continues in force and effect until C turns 16 years.
4.3after C turns 16 years the mother may withhold the two younger children from contact if C is unable to attend PROVIDED contact occurs the following weekend.
Order 4.3 continues in force and effect until W turns 14 years old.
That all outstanding applications are dismissed.
That the father pay one half of the children’s representatives costs assessed at $2475. These costs are to be paid within 6 months by equal monthly instalments. In the event that the father defaults in payment interest is payable thereafter on the balance outstanding in accordance with the Family Law Act and Rules.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA
ZP2887 of 2000
T-P
Applicant
And
T
Respondent
REASONS FOR JUDGMENT (Ex Tempore)
The application
This is an application by T-P which application was filed at Windsor Local Court on 1 September 2000. The orders sought by her were as follows:
1.That any relevant Rules or Regulations not complied with be dispensed with.
2.That the court consider this application along with attached affidavit of the applicant and make the following orders.
3.That the Orders granted by the Family Law Court of Australia at Sydney (SY10612/1995) on the 20/12/1996 be varied as follows:
(a)That the Respondent collect and deliver the children of the relationship to the applicant at Parklea Markets, Parklea when contact is to take place.
Those proceedings were transferred from Windsor Local Court to the Family Court and subsequently from the Family Court to the Federal Magistrates Court. At the commencement of the hearing yesterday the applicant sought to amend the orders sought by her. She was granted leave to make an oral application. Thus at trial she sought an order varying the orders made 20 December 1996 so that, in effect, she proposes contact would take place one Sunday a month between 9am and 5pm.
In response to the mother's application to confirm the existing arrangements for collection and return point for contact, the father on 14 November 2000, filed his response. He sought the following orders:
1.That any relevant Rules or Regulations not complied with be dispensed with.
2.That the respondent father be given contact with the children of the marriage, namely LT born 4 December 1984, CT born
30 April 1987, WT born 9 July 1992 and CT born 9 November 1994 as follows:
(a)Every alternate weekend, with the respondent to pick up the children at 8.00am Saturday and return them at 6.00pm Sunday.
(b)One hour with each child on their birthdays.
(c)One day at Easter from 8.00am to 6.00pm.
(d)One week during the Christmas school holiday break, with the respondent to pick up the children at 8.00am on the first day and return them at 6.00pm on the 7th day.
(e)The place of pick up and return of the children in relation to any contact period to be the front gate of the applicant mother’s residence.
(f)If the respondent father is unable to exercise contact with any of the children of the marriage due to them being ill, he is still to be given contact with all the other children who are not affected by illness at the time.
(g)The time of contact in respect of order 2(b) above, the day of contact in respect of order 2(c) above, and the dates of contact in respect of order 2(d) above, are to be organised between the parties at least 7 days prior to the contact taking place.
In essence, it is his proposal, firstly, that the contact changeover would take place at the mother's home. Secondly, that contact would be extended such that it became alternate weekends and school holiday contact of a type previously refused by Moss J.
The evidence
The mother relied on her affidavit filed 26 June 2001 and her oral testimony. Although I had made orders on 26 February 2001 for the father to file and serve an affidavit, he did not do so. The children's representative and mother's representative conceded that the father could, in the circumstances, give oral testimony and he did so. Otherwise, the evidence comprises an exhibit from the children's representative and the two family reports.
Credit
This is a matter in which it is necessary and proper to make a credit finding. It is my preference in proceedings of this type to avoid making credit findings because of the nature of the proceedings. However, I am satisfied that in these proceedings where there is a dispute on the facts as between the father and the mother I prefer the evidence given by the mother. The manner in which the father gave his evidence was unconvincing. He was glib in his denials of matters that he subsequently conceded under cross-examination. That he was prepared to give denials initially, for example, in relation to his kicking or pushing the chair at C and the nature and extent of his abuse of alcohol at the time of separation undermined his credibility. These are but two examples of a number that could be given where he gave clearly contradictory evidence.
I am satisfied that as a consequence of the unsatisfactory nature in the way the father approached important matters of fact that I should, where there is a factual controversy prefer the mothers evidence. So too when there is a conflict between the accounts the children have given to Ms Lynch, both during the course of the first consultations for the first report and the second set of consultations for the second report and the father's account of events, I prefer the children's accounts.
Relevant law
The law in relation to this matter can be summarised quite briefly. Contact orders and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to section 65E, in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings provides, in effect that children have a right of contact on a regular basis with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally it emphasises the desirability of contact, regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the child's best interests. In deciding the contact arrangements that will promote the best interests of a particular child the Court must consider the various matters set out in section 68(F)2. Its subsections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take in to account “ Any other fact or circumstance that the Court thinks is relevant.” This ensures that the infinite variety of children's circumstances can be addressed.
Not all of the section 68(F)2 factors are relevant, in my view, in this matter. I will address those factors that have been influential in my decision.
Determining the best interests of the children
The first matter to which I refer is section 68F2(a) of the Act, which relates to any wishes expressed by the children. There is a considerable body of law that guides the manner in which Courts must deal with the evaluation of children's wishes. See particularly H v W (1995) FLC 92-598 and R and R Children's Wishes (2000) FLC 93-000.
The Full Court in H and W ibid stressed the importance of judicial officers giving proper weight to children's wishes but did not say that they should not be departed from. Appropriate and careful consideration must be given to children's wishes. They should not be treated as a factor in the determination of the children's best interests without giving them further significance. When validly held wishes are departed from by the judicial officer is it apparent that good reason should be shown for doing so.
I am satisfied that the children have expressed a clear that they do not want to exercise overnight contact to their father. Having regard to their ages and life experiences their wishes must carry very considerable weight in the decision. It is a useful exercise to consider the contents of the first report by Court Counsellor Lynch as compared to the contents of her second report. There is a remarkable synchronicity between their concerns and feelings expressed in 1996 and now 5 years later in spite of the passage of time. It is clear that in spite of the time between the very difficult events that surrounded these children as at separation those events continue to influence their wishes.
The father submits that “contact has been working well, that he and the children operate as a team and that they are a happy family unit.”
The wishes expressed by the children and their rationale for their wishes does not suggest that the fathers account of events since separation vis-a-vis contact coincides with the children's views. L was 12 when Ms Lynch first saw her. During the joint observation session, Ms Lynch reported, as indeed was the case in these recent interviews, that L and her father failed to interact.
L's description of herself and her circumstances are consistent with an unhappy child who has very considerable disquiet as a consequence of her own experiences with the father. These experiences were emphasised by L as revolving around his use and abuse of alcohol, physical chastisement of her and the extended role that she seemed to have been required to take in relation to her siblings, both in terms of their care and the management of the home. When one compares the remarks the child was reporting on when she was 12 to the remarks she makes now in paragraph 18 as a 16 year old it is clear that her concerns and memories are still current and strong. I accept Ms Wearne's submissions that L's expression of preference to not have overnight contact is clearly founded on L's own experience of life with the father.
C was 9½ when she was first seen by Ms Lynch, she is now 14. Again, in the first report the inevitable conclusion one must draw is that at that time C was an unhappy child in her relationship with her father. Again, as was the situation with the second report, she failed to interact with him during the joint session.
C’s own history, as given to Ms Lynch, recounted experiences with the father of domestic violence, physical chastisement and the use and abuse of alcohol. Those matters remain concerns that C has now when one has regard to the contents of paragraph 21 of the recent report and the court counsellors oral testimony. C perceives that the father has rejected her and that he plays the children one against the other. C perceives that she is always, no matter which twosome was in the foursome is considered the child who comes last in the father's thinking. This has taken a significant toll on C's adjustment. I accept the counsellor's evidence that it has contributed to C's lack of self-esteem and the difficulty she is having moving through her adolescent years.
The younger two children were, indeed, very young, both at separation and when seen by Ms Lynch for her first report. W was 4 years and 3 months old and C was only 2. Both of the children were responsive and interacted happily with the father during the joint observation session. W, it would seem, was able to articulate some knowledge about the father's use of alcohol, but it was clear that she was not fearful of him. C similarly, while largely non verbal, was not fearful of the father. Those children now, in spite of some 5 years post separation experience of contact with the father, which he says have been happy contact periods wish contact arrangements to remain as they are. That is identified in paragraphs 22 and 23 of the current Family Report, and confirmed by the court counsellor in her oral testimony.
The children's wishes, as I have said, have been formed against a difficult parental separation and have been held onto by the elder two for 5 years of contact. Their views remain unchanged and the root causes for the formulation of those views remain clear to all. That the father cannot understand the reasons why the children hold their views again gives me considerable disquiet about his capacity to meet his children's emotional needs and the quality of his relationship with the children.
The father's perception of his relationship with his children in stark contrast to the children's perception of their relationship with him. I am satisfied that the father has a totally idealised notion of his relationship with his daughters. It does not reflect reality. The court understands his yearning for a relationship of the type that he described. It does not, in my view, however, reflect reality. When giving his evidence and being cross-examined about matters such as the chair incident, as a simple example, with C, he referred time and again to descriptions of these events as teething problems or other phrases with a similar import. Time and again, when matters were raised with him that were difficult, such as his prior use and abuse of alcohol, the first occasion overnight contact when members of his family came home drunk frightening the children and, issues relating to physical chastisement of the children he sought to minimise the significance of the incident.
The very long gap between contact during last year and then again this year; his correspondence to his daughters after he had decided to withdraw from contact saying that he would write to them but only if they wrote to him and making it clear to the children last year and, again this year that unless contact is on his terms, that is overnight contact, that he is going to withdraw from contact are all matters that have undermined the fathers relationship with the children. He has told them either by his own actions or directly that either by returning to New Zealand or do as he did last year, by stopping contact that he could withdraw from their lives. These are all events that, one way or the other, have infiltrated the children's thinking. When one considers the Family Report and the counsellors evidence these matters are all raised by the children as the children have attempted to explain their views about their contact with the father. Each of these matters, when the father ultimately addressed it was categorised as “the past is the past.” The past, of course, for the father is the most convenient place for it. It enables him to progress in his life without attempting personally to deal with the consequences of his own actions. These and all of the matters that I have identified are matters entirely created by the father. They have not been contributed to by any other adult or child.
So it is, of course, convenient for him to put those matters in the past and then ignore them. The children are not so fortunate. These matters loom large in their thinking and in the formulation and description they give to their relationship with their father. All the children have an ambivalent relationship with their father. None of the children feel safe with their father. It may be that their fears, in terms of the fathers capacity to provide a safe environment should objectively have less currency now than in the past. That, however, is not the children's perception. Their fear is current and real. The father does not have the capacity to meet the children's emotional needs if his response to their current fear is to simply say, “the past is the past”. In essence what he says to his children is “well, I've moved on from there and so too must you”. At some point in time Mr T is going to have to confront and deal with his children's perceptions of him and his children's understanding of the life that they had with him, both prior to separation and subsequent to separation.
Central to an effective parental child relationship is trust. Trust, of course, is something that is earned over time. Mr T has had all of these children's lives to establish a trusting relationship with them. He has not been able to do so. The decision he made last year to terminate contact after he withdrew his second application for overnight contact showed a cavalier disregard for these children's affection for him and their need for consistency from him. It may be that he made a sensible decision given the turmoil he felt at that time to stop contact. However, the manner in which he implemented the decision, telling the children, that if they didn't support his proposal for overnight contact then he would leave them was callous. It must have undermined to a very significant degree, such trust as the children had in their father, in his reliability and commitment to them. There are, of course, many ways a parent can have time out, if that is what is necessary for their emotional and psychological well-being. They can meet with the children, perhaps with the assistance of a third person, and explain why the parent needs some time to attend to their own emotional and psychological well-being. That is not what Mr T did. He confronted his children in a brutal way, which clearly was in response to their decision to not support his claim for overnight contact.
So it is not surprising that, by the time these children come to be seen again by Ms Lynch, they are not trusting of their relationship with the father. Although I am satisfied that Ms Lynch gave the children the opportunity to discuss their father in the most uncritical and objective of ways they chose to explore with her their distrust of their relationship with him. What is apparent is their anxiety about the quality of their relationship with the father. I am satisfied, having regard to the totality of the evidence, that the children have a poor and anxious relationship with Mr T. Their perception of their relationship with him is at odds with his perception of his relationship with them. Until such time as there is a coming together of beliefs by them as to the nature of their relationships, its strengths and its weaknesses these difficulties are likely to remain.
Indeed, for the older children, unless it is addressed sooner rather than later, the strengths such as they are in the father/elder daughter relationship will be perhaps irretrievably lost.
The next issue to which I must have regard is the effect of changes in the children's circumstances. This goes to the heart of the father's application. He proposes that the children's circumstances be changed so that they have overnight contact to him. This flies in the face of the Court's capacity to acknowledge in a meaningful way the children's wishes and to address in a cautious way the problematic nature of all four children's relationship with the father.
Of course, if overnight contact were ordered the children would have the opportunity to spend more time with their father and perhaps to enjoy activities that are more meaningful than some of the activities that daytime contact provides. That is a factor I take into account. However, the risks to the children, in terms of their emotional well-being associated with the changes proposed by the father as compared to the advantages that they could enjoy a wider suite of activities and immerse themselves more completely in his life outweigh, in my view, the advantages of it.
The mother's proposal, of course, also involves a change to the children's circumstances in that there would be a reduction in the time that the children will spend with their father, at least on the face of the orders. I accept the submission made by the child's representative in relation to the reality of the contact that has been exercised. During the last 18 months it is apparent that contact has been, as Ms Wearne said, "erratic and irregular." It stopped altogether in about January 2000 at the father's insistence. Because he did not tell the mother it was not to resume, she continued to attend for contact changeover for a period of some weeks before she and the children deduced that the father wasn’t coming any more.
He chose to resume contact in October 2000. The children and he then engaged in a stand-off about the method of transport for contact and so contact, in fact, did not resume until Easter 2001. Since then there have been changes made to contact regime as a consequence of C being unwell, L's work commitments and school holiday commitments, as well as the father once or twice not being able to attend because of his own commitments. It is apparent that contact was not exercised once every fortnight as Justice Moss had proposed. It is a much more erratic arrangement.
I accept the evidence given by the Court counsellor on this and, indeed, all matters as to the benefits to the children of a clear commitment by their father to contact with them. He has an intellectual and emotional commitment to that contact. However, he has not demonstrated, in fact, a continuing commitment to contact with the regularity and style that these children require. Contact that is fixed and limited will ensure that the children have expectations of seeing their father, which expectations are met. Thus there will not have to deal with the rejection that they have endured over the last, at least 18 months. That is in their interest.
An issue that arises is the collection and changeover point. This is a matter to which section 68F(2)(d) has particular application. Contact changeover has taken place at Parklea Markets for about the last four years. The father's proposal would change the collection and return point to the mother's home. I do not understand, having heard the father's case, why he presses this change on the Court. He has again, it seems, an emotional longing to be able to participate in contact hand-over at the children's home, I infer, because this is what he perceives as the normal arrangements. It ignores the families history, as the father, in my view, seeks in all aspects of his case to do.
The history is one of family violence and of abuse. As recently as some 12 months ago the mother received a series of phone calls from the father when she says, "He was affected by alcohol." As a consequence of my findings of credit it is apparent that I accept her evidence about these calls in preference to the father's denial. His alcohol abstinence is not for the years that he presses, it has greater currency than he would have the Court accept. Because there are changeover arrangements that have worked for some 4 years and as the mother is strongly opposed to the fathers attendance at her home, I am satisfied that the neutral grounds of the Parklea Markets are the preferred place for contact changeover. It is a public place, there is little opportunity for friction and it is a place that is reasonably child-friendly.
I have already touched upon the capacity of the father to meet the children's emotional and intellectual needs. His capacity to meet their intellectual needs is not a material factor, given the structure of contact that will be ordered. The issue is a much more significant one in relation to their emotional and psychological needs. I have already made findings that are relevant to subparagraph (e) and I do not repeat them.
The subparagraph is subparagraph (g) the need to protect the children from physical or psychological harm. I will address under this heading matters that also relate to family violence.
I listened very carefully when Mr T gave his evidence in these proceedings. He was, in my view, a man on a mission. His mission is to achieve overnight contact irrespective of the children’s wishes. The manner in which he gave his evidence, and attempted to avoid answering difficult questions ultimately corroborated the children's concerns. It highlighted what a forceful person the father is. He is clearly a most determined man who, on the face of it, will not accept any view that stands in conflict with views held by him. This is particularly so when these are views expressed by his children.
When I then consider the early history of family violence and alcohol abuse I have considerable reservations, for example when I reflect on the incident involving the chair with C, about his capacity to deal with opposition and criticism. There is a risk based on his past behaviour, of abusive behaviour by him to the mother. Although it is a minimal risk, there is a risk also of abusive behaviour at this point to his elder children. His behaviour towards C with the chair was quite dreadful behaviour from a parent to a child and it was properly categorised by the child's representative as violent behaviour.
It is then, looking a subparagraph (k), the subparagraph that deals with finality disappointing that Mr T proceeded with his application after he had, firstly, discussed the matter with his children and, secondly, received the Family Report. I emphasise that he has had the benefit of an earlier Family Report and the judgment delivered by Justice Moss. His Honour expressed to the father in clear and unambiguous terms his disappointment that, having seen what the children had had to say to Ms Lynch those years ago, he put their wishes to one side and nonetheless pressed on.
I share His Honour's disappointment. Mine is exacerbated by the fact that the father has had the benefit of earlier having a judicial officer point out to him the folly, in many respects, of proceeding as he did then. He had the benefit of those comments and of the earlier judgment and, nonetheless, in 1999 he started off again and then again in 2001. This time he has taken his application through to finality. It is, in my view, preferable to make an order that will least likely result in further proceedings. I am concerned, from remarks made by the father during submission, that he anticipates that there will be a time when he will make a further application for overnight contact. He should reflect very cautiously before he does so.
The mother has not pressed an application that the father is required to seek leave, or in the alternative be declared a vexatious litigant at this time. However it is now a matter of record that the Court considers that this application was ill considered. This and the earlier finding made by Justice Moss may well have consequence if there are further applications initiated by the father for overnight contact.
I have, in considering subparagraph (k) and subparagraph (l), reflected very carefully on the age differentials between these children. The time is coming when L and C are going to be increasingly unlikely to participate in contact, or at least participate in it regularly. L and C commenced contact with the father on an overnight basis, quickly reduced to a daily basis, when they were 11 and 9. The younger children, in my view, will get to an age when they no longer need either L or C to participate in daytime contact. My conclusion would be quite different had I ordered overnight contact. Given the constraints that will be placed on contact it is appropriate to provide for the next major stage in terms of contact. That is when L and C reach a point where one or both of them no longer wishes to attend contact.
The counsellor was asked to postulate as best she could when the elder children could safely withdraw from contact. She had already given evidence about the very real problems that C has in her relationship with the father and C's very deep problems with her own lack of self esteem. I am concerned about C's capacity, being placed in a position of some responsibility if L starts to withdraw from contact, to deal with the father in the interests of her younger sisters.
W and CM seem to have been able to negotiate a relationship with the father that enables them to enjoy daytime contact. It does not have about it some of the tensions and deep anxieties that L and C feel. I accept the counsellor's evidence that that is likely because they were younger at separation and many of the events of this family's life pre-separation, are not matters that are strongly in their memory. This has the effect of diminishing their vigilance, but they nonetheless have a degree of vigilance about them. I am satisfied that there will be a time when they can attend contact just with C. C will not be required to take the responsibility for them because, in essence, the younger children's relationship is not as conflictual as the elder children's relationship.
I will order that all children to attend contact until C has turned 16. Once W turns 14 C will also no longer need to attend contact.
Conclusion
I am satisfied in these proceedings the children's wishes are clear and unambiguous and in relation to the elder they have been held for a very long time. There is no good reason, on the evidence, to undermine those wishes and not give full effect to them.
The children's expressions of wish are congruent with their own experiences of their father and life with him, both before and after separation. His idealised notion of his relationship with the children stands in the way of his capacity to meet their emotional and psychological needs. There are risks associated with contact of the type proposed by the father, which, in my view, given the children's wishes, are risks that should not be taken by the Court. The orders that I have made I hope promote finality. It is my intent that there would be no further proceedings between these parties in relation to their children.
I am asked to make an order by consent that will address the provision of the details concerning the children's schooling and photographs for the father.
Costs
An application was made by the children's representative for Mr T to pay one half of the costs incurred in representing the children. The amount sought is $2475. This has been a 2-day trial and, in my view, the amount is manifestly appropriate. Section 117 is a relevant section and it provides the prima facie, that parties should bear their own costs.
When a Court considers making an order for costs it must have regard to the provisions of section 117(2)(a). The father’s evidence is that he is financially secure, earning between $700 and $800 per week in the construction industry. The work is job by job and is regular. The effect of his evidence is that he is financially secure and would have been able to incur and meet readily the additional costs associated with the contact he sought.
The children are legally aided and the father is not.
Nextly, the conduct of the proceedings. The father chose, in my view, not to prepare his matter in accordance with the court's directions and his non compliance has, as Ms Wearne submits, lengthened the proceedings. His evidence was that he had applied for legal aid and he had sought pro bono assistance, something that is curious given his financial circumstances. In any event, the conduct of the proceedings in terms of his failure to prepare for the proceedings is a factor I take into account. Subparagraph (d) does not arise. Subparagraph (e), the father has been wholly unsuccessful in the proceedings.
The father has previously participated in two sets of proceedings abandoning one mid course. The judgment delivered previously by Justice Moss highlighted the importance that Courts give to the wishes of children and the weight that is often attached to a family report and expert evidence of that nature. The father although not legally advised in this current of litigation has been previously. In my view subparagraph (e) is an important subsection on the facts of this matter. Subparagraph (f) does not arise and nor does subparagraph (g).
I am satisfied that I should make an order for costs in the sum sought within 6 months. These costs are to be paid by instalments of equal amounts on a monthly basis. In the event the father fails to make a monthly instalment payment, then interest will apply to the balance then remaining.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Ryan FM
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