Veitch and Dempsey (No.2)

[2019] FamCA 953

FAMILY COURT OF AUSTRALIA

VEITCH & DEMPSEY (NO.2) [2019] FamCA 953

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the child lives with the father and spends time with the mother on each fourth Sunday – Where the child resists spending time with the mother – Where the mother seeks that the child transition into her primary care and spend alternate weekends with the father – Where the father seeks that the child remains in his care and spends time with the mother on each fourth Sunday until the child is 13 and thereafter the child make her own decisions about time spending – Where the family consultant considers the child is strong willed and would resist orders to transition to the mother’s primary care – Where the sibling relationship is complex and each of the children have become involved in the dispute between the parents – Where the children have each aligned themselves with their residential parent – Orders.

Family Law Act 1975 (Cth) ss 60CA, 60B(1), 60B(2), 60CC, 60CC(2), 60CC(3)

Mazorski & Albright [2007] FamCA 520

APPLICANT: Ms Veitch

RESPONDENT: Mr Dempsey

FILE NUMBER: ADC 508 of 2015

DATE DELIVERED: 11 December 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 18 - 20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Roberts

SOLICITOR FOR THE APPLICANT: Southern Vales Legal

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Jacqui Ion Lawyers Pty Ltd

Orders

1. That H born … 2008 spend time with the mother as follows:-

   (a)For a period of five (5) hours from 10.00 am to 3.00 pm every fourth Sunday commencing 29 December 2019;

   (b)       From 10.00 am to 1.00 pm on 25 December 2019, 2020 and 2021;

   (c)At such other times as agreed between the parties or as requested by H.

2. That following H turning fourteen (14) years of age on … 2022, H spend time with the mother in accordance with her wishes.

3. That all handovers do take place at McDonald’s Restaurant at Suburb K or at such other place as the parties may agree.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 508 of 2015

Ms Veitch

Applicant

And

Mr Dempsey

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings between Ms Veitch (“the mother”) and Mr Dempsey (“the father”) concern the future parenting arrangements for H born in 2008 (“the child”).

2. The child has two older siblings namely C born in 2002 who lives with the father and B born in 2004 who lives with the mother.

3. The child currently lives with the father and spends limited time with the mother.

4. At the commencement of the trial on 18 November 2019 orders were made by consent that the parties have equal shared parental responsibility for C, B and the child. The orders provided for C to live with the father and B to live with the mother and to spend time with the non-primary care parent in accordance with their wishes.

5. The consent orders are silent as to the time that the child spends with the mother, but do resolve where she will attend school.

6. The parties are agreed as to the terms and conditions of the children undertaking overseas travel, the exchange of information in respect of any significant medical or dental issues affecting the children and provide appropriate authorisation for each party to access information concerning each of the children’s education and academic progress.

7. Accordingly, the narrow focus of the proceedings is the extent to which the child will live and spend time with each of the parties.

8. The mother seeks the following orders:-

   (1)That the child live with the mother;

   (2)That until the child turns 15 years of age she spends time with the father each alternate weekend from the conclusion of school on Friday or 4.30pm if not a school day until the commencement of school on the Monday or 5.00pm if not a school day and then subject to the child’s wishes.

9. The father seeks an order that the child live with him and spend time with the mother:-

   (a)For a period of four hours from 10.00 am to 2.00 pm every fourth Sunday commencing on 8 December 2019 (save and except for 5 January 2020); and

   (b)At such other times as otherwise agreed between the parties or as requested by the child provided that following the child the child turning 13 years of age her time with the mother will be in accordance with her wishes.

10. Both parties seek that handover shall take place in accordance with the current arrangements namely, at a fast food family restaurant.

Background

1. The parties commenced a relationship in Europe in 1988. The parties and the children relocated from Europe to Australia in 2010.

2. The parties separated on 24 September 2014 with the mother leaving the family home.

3. The children remained with the father until 30 September 2014 when the mother returned.  The mother cared for the children from 1 October 2014 to 4 October 2014. The father stayed in a hotel.

4. The mother advised the father that she wanted to take the children for a six week holiday to Europe departing on 7 October 2014.

5. On 7 October 2014 the father learned that the mother had booked one way tickets only and became concerned that the mother’s intention was to remove the children from the Commonwealth.

6. The father was unsuccessful in stopping the children from leaving Australia, however, faced with the mother’s refusal to return the children, he filed proceedings in Europe seeking the children return.

7. The litigation was extensive and he did not see the children until their return to Australia on 6 April 2015.

8. The parties and the children resumed residence in the former family home. The parties lived separately and apart. However, in June 2015 the mother moved into rental accommodation.

9. There is some contention between the parties as to the basis upon which the mother was able to access rental accommodation for herself and the children. She alleged that the father had perpetrated family violence, and that she was frightened of him and concerned that he may present as a risk to the children.

10. The mother was referred to a psychologist to assist in her anxiety and upset which she considered was the consequence of the father’s emotional abuse.

11. The father issued proceedings in 2015 seeking that the children live with him and spend time with the mother.

12. Orders were made in September 2015 that the children live with the mother for nine nights per fortnight and with the father for five nights per fortnight.

13. The arrangements appeared satisfactory until 8 February 2016 when C argued with his mother and sought to live with the father.

14. On 16 May 2016 orders were made that C spend time with the mother subject to his wishes and that B and the child spend time with each parent on a week about shared care basis.

15. There is some relevance to the oppositional conduct of B and the child in terms of the extent to which they may have been emboldened by C’s refusal to spend time with the mother other than on his terms.

16. The Court ordered the preparation of a family assessment report to assist in determining the interim parenting arrangements. The Court file includes a report from Ms I (psychologist) dated 12 January 2016.

17. Ms I recommended that the parties have shared parental responsibility and effectively the children spend equal time with each of them.

18. Whilst I do not rely upon the report of Ms I to determine the ongoing parenting arrangements for the child, neither party cavils with the observations of Ms I that in 2015 the children had a close relationship and strong emotional attachment to each of the parties.

19. At the time of the assessment C was living with the father and told Ms I that he had a good relationship with each of the parties. He was asked to rate the extent to which he felt close to his parents and the level at which he considered that they loved him. On a scale from 0 to 10 of how close he felt to the mother, where 10 is the maximum, he rated his closeness to the mother at about 6.5 to 7. In relation to his father he rated himself at 9.5 and confirmed that he felt much closer to the father. He did not want his parents to argue and would like to spend about the same amount of time with each of the parties.

20. Similarly, B and the child both considered they were strongly bonded to the parties and wanted to spend a week about with each of them. B’s relationship with the father was close and he recognised that he enjoyed his father’s company. The child’s attitude to the parties was not dissimilar.

21. The utility of Ms I’s report is that it sets a background against which the current level of dysfunction and mistrust between the parties can be measured.

22. The complete breakdown of the parental relationship and their likely disregard of the interests of the children in favour of their desire to conduct a war of attrition is likely to be the prime cause for the current devastating circumstances in which the children find themselves. C will spend time with the mother only in the most extreme circumstances; B refuses to engage at all with the father; and, as will be discussed, the child’s presentation raises concerns by the family consultant as to her psychological and emotional wellbeing.

23. Final orders were made by consent on 24 May 2017 which provided for C to live with the father and spend time with the mother subject to his wishes, whereas B and the child were to live with the parties on a week about basis.

24. It is not controversial that soon after the orders were made C, at age 15 years, became antagonistic towards the mother and she considered that he had become “totally estranged”.

25. For her part, the mother recognised that B’s relationship with the father had deteriorated to the point where he refused to spend time with or communicate with the father.

26. The father contends that the mother had influenced B to become defiant and oppositional in his attitude. The father and B were unable to reconcile their differences, particularly in circumstances where B had behaved in an aggressive or disrespectful manner towards the father.

27. The father proposed an overseas holiday with the children. B did not go. The child was concerned that if she returned to the mother’s home pursuant to the orders in the period leading up to the proposed travel date then the mother may not facilitate her being returned to the father.

28. On 22 September 2017 the child ceased spending any time with the mother.

29. Upon the return from overseas travel on 2017 the child advised the mother that she did not wish to return to the mother’s home.

30. There was a distressing incident at the child’s school when the mother attended to pick up the child and following a discussion the child left the school grounds which necessitated the police being called.

31. The father’s overseas travel with the children remained a source of conflict. The mother alleges that the father took the children to Country O in 2018 without her consent or knowledge. The travel plans were detailed but had not been provided to the mother. The concern was that the child may have been either told not to reveal the travel arrangements to the mother or was an active participant in the alleged deception.

32. The issue of overseas travel was again raised in February 2019 with a failed attempt by the father to take C and the child overseas. The mother had placed the child on an Airport Watch List which resulted in the father arriving at the airport with the intention to travel but being prevented from doing so.

33. The father eventually informed the child that it was the actions of the mother that had prevented the travel.

34. Each of the parties has been the subject of a finding that they were in contravention of orders. On 9 April 2019 the father was placed on a six month good behaviour bond. On 18 July 2019 the mother was also placed on a six month good behaviour bond.

35. The current interim order is that the child spends time with the mother between 10.00 am and 4.00 pm every fourth Sunday with handover to occur at Suburb K McDonald’s.

36. The parties have conceded that C and B will spend their time with each of the parties subject to their wishes.

37. There has been general compliance with the order, however, it is not without incident and the parties agree that the child’s presentation when with the mother has been defiant and deliberately confrontational.

38. The father’s evidence is that the child has told him on many occasions that she does not wish to spend time with the mother and her reluctance is based on her perception that if C and B can decide the extent of their relationship with each of the parties then she should be able to do so as well. The child apparently complains to the father that she does not enjoy her time with the mother.

39. Of recent date the child has refused to leave the McDonald’s and the mother and the child have spent the entire six hours of their visit on the premises.

40. There have been other occasions however when the child and C have been more accommodating in the presence of the maternal grandmother.

41. There is no suggestion that the conflict between the parties is lessening or that the child is likely to become more accommodating towards the mother.

Documents relied upon

1. The mother relies upon the following documents:-

   (1)Amended Initiating Application filed 19 September 2019

   (2)Trial Affidavit of the mother filed 13 September 2019

   (3)Affidavit of the mother in reply filed 15 November 2019

2. The father relies upon the following documents:-

   (1)Amended Response of the father filed 4 November 2019

   (2)Affidavit of the father filed 4 November 2019

Summary of arguments

1. The mother contends that the father is either unable to or refuses to promote the child’s relationship with the mother. There is nothing in the father’s conduct which suggests he will support the child’s relationship with the mother.

2. Accordingly, the mother seeks that the child transition to her primary care. She considers this the only option that would enable the child to maintain a meaningful relationship with her.

3. C is opposed to the mother with the consequence that the child is influenced by his negative attitude towards the mother.

4. The mother considers that she would be prepared and better able to support the child’s relationship with the father than is currently occurring.

5. For his part, the father considers that the mother’s conduct in removing the three children from Australia requiring their return to be enforced by an application sowed the seeds of mistrust.

6. The parties have been in ongoing litigation since separation.

7. The agreement between the parties that B and the child would live with each of them on a week about basis broke down later in 2017. The mother either refused or was incapable of ensuring B’s attendance with the father which resulted in the child deciding that she could determine her own arrangements. The relationship between the mother and the child was poor and the child seized the opportunity to impose her will.

8. The father agrees that the child is unresponsive to the mother and the time that she spends with her is unsatisfactory. Any order that had the effect of compelling the child to remain with the mother is likely to be strongly resisted by her.

9. The father has some confidence that he can ensure that the child spends time with the mother for four hours each fourth week until her 13^th birthday but not thereafter.

The evidence

The mother

1. The mother supplemented the evidence contained in her trial affidavits by evidence in examination in chief that she had received little or no information from the father concerning the child’s current circumstances.

2. The mother agreed that C and the child have a close relationship. She considered that C was likely to be a strong influence in the child’s relationship with her.

3. The mother was asked to consider the circumstances of her taking the children to Europe. She did not agree that it was a holiday, but conceded that she purchased one way tickets. Upon their arrival in Europe, the mother enrolled the children in school.

4. The evidence paints a distressing picture of the mother and children at the airport with the father attempting to stop them leaving.

5. The children did not spend time with the father for a period of five months but he did see them twice per week via Skype.

6. The following paragraph from the report of Ms M (“the family consultant”) dated 2 July 2018 (“the first report”):-

   100.C described being taken to Europe by his mother and alleged she had then influenced him against his father: ‘Dad was at the airport with the police. They tried to stop us going but failed… I cried for an hour, it was the first time I saw my dad cry. The saddest moment of my life. I did not think that Dad was a bad person when I first arrived but Mum kept on telling us he was a bad person. At first Mum got us to Skype him every week but then we started saying to Dad that we did not want to talk to him.’

7. The mother denied that C had exhibited any sadness at the circumstances of their departure from Australia.

8. The mother was unhappy and emotionally upset about the efforts of the father to have the children returned to Australia.

9. It is likely that C’s report to the family consultant that the mother had been attempting to turn him against the father was an accurate report.

10. C reported that during an argument the mother had “forcefully pushed him until he was backed up against a door and yelled at him”.

11. The mother agreed that there had been an incident when she grabbed C’s arm and yelled at him. It was not acceptable behaviour but it is likely that C was rude and disrespectful to her.

12. C called his father to collect him and he has remained with his father since that date notwithstanding there were attempts to reinstate C’s relationship with the mother.

13. B also presented a difficulty for the mother. He was verbally abusive to the mother and there were reports from school that he had engaged in aggressive conduct. He had broken a window at his school and in 2016 both he and the child had broken into the school and damaged school property.

14. The mother conceded that at times B had used offensive language to the child.

15. B’s behaviour is challenging. He would scream and shout and the mother’s arguments with him would often be heated and angry.

16. The mother agreed that the father would find B’s behaviour unacceptable, in particular in terms of the father’s efforts to ensure B showered each day, ate breakfast and brushed his teeth.

17. Following a dispute between B and the father in June 2018, B returned to her care and the mother understood that B was not prepared to accept the father’s discipline.

18. The family consultant explored with B the reasons that he was not with his father. The following is reported in the first report:-

    108.B said that the reason he is not with his father is because he does not have a relationship with him. If he did he thought he would choose a ‘50/50’ arrangement. He said that the relationship had ‘stopped’ because ‘we always had to eat breakfast and showers and everyday do the same with only limited time to have fun on our own. When I first left dad’s, I did still have a bit of a relationship with him, like friends. Now it is lost.’…

19. The mother conceded that she did little to promote B’s relationship with the father and upon him attaining 13 years of age she allowed B to make his own decisions.

20. The mother acknowledged that in September 2017 when the child’s parenting arrangements moved from week about shared care to living solely in the care of the father, the child resisted spending time with her thereafter. The mother could see no reason that the child would reject her other than the father’s influence.

1. She agreed that she had attended the child’s school but said that the child was distant and refused to engage with her.

2. A constant theme that underpinned the child’s presentation to the mother was to highlight that as B was not coming to see the father she did not consider she needed to see the mother.

3. On 24 April 2019 the child spent time with the mother at the McDonald’s Restaurant. Upon the arrival of the mother the child ran from the restaurant. She rang the father who told her to return.

4. The practice then developed that the mother would remove the child’s phone and it is her evidence that following an abusive outburst by the child on 26 May 2019, she refused to leave the restaurant.

5. At present the mother is in regular communication with the child’s school and receives updates. The mother agreed that the children are clearly aligned with the parent with whom they currently live but had some level of confidence that if the child was forced to spend time with her, then her attitude would change.

6. The mother was not prepared to concede that her behaviour could have in any way contributed to the child’s oppositional presentation.

7. The mother presented as a hostile towards the father and despite her assertions to the contrary, it is likely that the mother has not promoted B’s relationship with the father as the father did not promote C’s relationship with the mother.

8. The mother presented as an unimpressive witness and it was apparent from her evidence that she was more invested in pursuing the dispute with the father than encouraging B to see his father and siblings.

The father

1. The father conceded that B had significant behavioural difficulties. He had not been able to communicate or spend time with B and agreed that B’s behaviour had been very challenging.

2. The relationship is fractured and the father conceded that whatever may have been the nature of the relationship prior to separation it is virtually now non-existent. The father has had little or no contact or communication with B since July 2018.

3. B refused the father’s offer to take him on a holiday to the United States. The father is distressed at not ever been given an explanation for B’s refusal.

4. Not dissimilar to the mother’s presentation, the father considered that the mother was behind B’s refusal.

5. C has not slept at his mother’s home since separation but the father considers that it would be easier for the child if C accompanied her to the mother’s home. There have been a few occasions when C has accompanied the child but they were usually to see the maternal grandmother rather than to spend time with the mother.

6. The relationship between the child and B is complex. The father acknowledged that the child has trouble with B because he can be aggressive and socially difficult. He has also referred to her as “black”, intending the remark to be derogatory.

7. The child however seems to enjoy B’s company but is concerned she observes the mother and B in argument.

8. The child has been living with the father since 27 September 2017.

9. The father agreed that following an attempted overseas trip, the child had asked him to explain why the police had intervened and they were not permitted to leave the airport. The father eventually relented and showed documents to the child that established the mother had instigated the children being placed on the Watch List.

10. The father’s evidence on this issue was not impressive. It is difficult to accept that he was not able to resist the child’s request for the information. Moreover, the father allowed the child to believe that the mother was at fault, whereas the father now acknowledges he made a mistake by not securing either the mother’s consent or, upon her refusal, an order permitting him to take the children overseas.

11. It is likely that the child harbors ongoing resentment towards her mother arising from her belief that the mother was solely to blame for the aborted holiday.

12. The father denied that in July 2018 he had threatened the child that if her grades did not improve from a “D” then she was at risk of being returned to the mother’s care.

13. He did highlight that at present the child was doing better at school and that whilst she was not a “C” Grade student her academic performance appeared to be improving.

14. The father highlighted the child’s current worries as including:-

    ·Peer and friendship difficulties;

    ·Her relationship with B;

    ·Family breakdown;

    ·Adoption; and

    ·Cultural issues.

15. The father explained the child’s reluctance to spend time with the mother as a reflection of the child reacting to her belief that the mother had prevented B from spending time with the father.

16. The child also complained of a history of being kicked and treated poorly by the mother.

17. In 2018 she did not see the mother for three months. The father was not able to persuade her to resume contact with the mother.

18. The father agreed that he took the child to Country O for her birthday in 2018 but made no effort to ensure that the child made contact with her mother.

19. The mother alleged that when the child turned 10 years of age in 2018 she attempted to telephone the father’s mobile phone six times on the child’s birthday to wish her well. The calls were neither answered nor returned. The mother tried to contact C on his mobile, however, received no answer.

20. Eventually the mother forwarded an email to the father on 17 January 2018 to inquire as to the child’s whereabouts. The father’s response was to inform the mother “that the child does not want to speak to you”.

21. The father now says that he will support the mother’s actions if she tries to exercise appropriate parental authority in respect of the child. The gravamen of the father’s evidence is that he recognises the child’s behaviour is poor and whilst he mistrusts the mother, he accepts that her conduct would not be a sufficient explanation for the child’s oppositional and defiant behaviour. Notwithstanding the matters raised by the father, I find that his conduct in not being prepared to allow communication between the mother and the child on the child’s birthday was deliberate because he did not want the mother to know of his intentions in respect of overseas travel with the children in case she attempted to restrain him from leaving.

22. At present the father does not contact the child when she is with the mother.

23. The father has adopted an attitude that does not allow him to promote the child spending time with the mother. He is aware of the extent of the child’s opposition to the mother and appears content to allow the child to vent her anger and conduct herself poorly.

24. Not dissimilar to the mother’s presentation, I find that the father has little or no interest in promoting the child’s relationship with the mother and is unlikely to change his position.

25. The father was intent on fuelling the dispute and conflict with the mother and it is open on the evidence to find that he will not promote the child’s relationship with her.

26. The father was an unimpressive witness.

The family consultant

1. The family consultant noted that there were no child protection issues or allegations of family violence that would impact upon the orders sought.

2. Neither party presented with any mental health issues. Whilst there were allegations of physical abuse, the overarching consideration was the extent to which the children were at risk of emotional or psychological harm consequent upon the attempts by each of the parties to manipulate and influence them.

3. The family consultant had the opportunity to interview the parties, the father’s partner Ms N and the children.

4. Ms N summarised the standoff between the parties as follows:-

   I don’t think there is a good solution. B is really attached to his father but he just doesn’t want to be. I think the children should spend more time together but I don’t know how. B wouldn’t feel good about coming to our house and C and [the child] wouldn’t feel good about going to their mother’s house.[1]

   [1] Family Report dated 2 July 2018 at [50].

5. The mother and C had engaged in unsuccessful reunification counselling. The mother accepted that there was little she could do to restore her relationship with C. She considered that the child was strongly influenced by the father as evidenced by her observation of C who was verbally abusive and threatening.

6. In summary, the mother considered that the father had promoted “negative feelings” towards the mother. The father disputed the mother’s perception and considered that C was reacting to the mother’s poor behaviour.

7. B was diagnosed with Autism Spectrum Disorder and Tourettes Syndrome. He has support under the National Disability Insurance Scheme. It is not known the extent to which his presentation contributes to his refusal to engage with the father. The family consultant recorded the inability of the parties to agree a future treatment and management plan for B.

8. The mother wanted B to see a psychologist. The father would not agree. His refusal was based upon his perception that the mother only wished to engage the services of a psychologist to gather evidence against the father.

9. The father considered that when B spent regular time with him there were no behavioural difficulties whereas when with the mother, she promotes and fosters his oppositional and defiant conduct.

10. The father considered that B needed “very strict boundaries” whereas the mother would reward B for having a “good day”.

11. The parties did not impress the family consultant with their level of insight. Each party acknowledged that the orders had been breached and that they were complicit in not promoting B and the child spending time with the other parent.

12. Each of them however considered that it was reasonable for the child in their care not to spend time with the other parent, but unreasonable for them not to spend time with the child not in their care.

13. The family consultant recorded the child as presenting as a confident young girl. It is an interesting observation of the child that she described her family as being normal prior to separation. The child remembers with some distress being taken by the mother to Europe for a holiday and becoming upset at the airport when the father attended with the police attempting to stop the mother and the children leaving. The child remembers her upset when she understood that the mother did not have an intention to return with the children to Australia.

14. The child was able to provide her reasons for her lack of engagement with the mother. She described not feeling close to the mother but liked her time in the father’s home. She enjoyed her relationship with the father’s partner and felt close to C.

15. At the time of the interview the child indicated a preparedness to spend time with the mother if C went with her. She was not prepared to spend time overnight. The family consultant recorded that after some period of reflection, the child’s position was that she did not wish to spend any time with the mother irrespective of the circumstances.

16. C presented as a thoughtful, mature 15 year old. He made a clear decision that he would live with his father and spend limited time with the mother. He noted that his father had “forced him to go to reunification counselling with his mother” but that it did not alter his position.

17. A feature of the mother’s home was his concern that B was disrespectful and potentially abusive towards the child without sanction by the mother.

18. At that time he was open to spending some limited time with the mother once a month to see if the mother had changed in her outlook and demeanour.

19. B was aged 13 as at the date of interview. B enjoyed his time in the mother’s home because he considered that it offered him more freedom. He compared the regiment in each of the parties’ homes in the following manner:-

    Mum is more like water and flows easier. Dad is like solid.

20. B expressed some interest in seeing his brother and sister again but did not consider that he would want to see his father.

21. He held the strong belief that the father had “taken [the child] away” from the mother.

22. The family consultant recorded a request by the child that the family consultant speak privately with B. This arose from a meeting between the family consultant and the three children all together:-

    [The child] said her views in respect of the mother had not changed. When asked if there was anything else the writer needed to know [the child] burst out with a story of B hitting her at school and then when she was on the ground “humping” on her. She said another child then told the teacher that B called it doing “rapety rape”.[2]

    [2] Family Report 2 July 2018 at [96].

23. The child asked to speak privately with the family consultant:-

    She then said that B was now saying that he did not want to see her because of what she had said. She asked the writer to tell him that she had said that she had lied about him ‘humping’ her. She said that though it was not a lie she did not want to lose her relationship with her brother.[3]

    [3] Family Report 2 July 2018 at [97].

24. The purpose of the request has some particular relevance to the weight that should be given to the child’s wishes.

25. The following appears at [114] of the first report:-

    At [the child’s] request, the writer spoke privately with B at the end of the day. She informed him that [the child] had spoken of his importance to her, that she really wanted to see him and that she had not wanted to upset him. B presented as resistant and said he could not trust anything [the child] said.

26. The family consultant observed interaction between the three children and the mother. She recorded that the children were not fearful of the mother and that they complied with being directed to spend time with her but it was apparent that C and the child were not open to resuming a relationship.

27. The observed interaction between the children and the father was somewhat strained. B did engage in the games being played, however, the dynamics resulted in verbally aggressive interaction.

28. B accused the father of slapping him and did not appear to evidence emotional attachment although the family consultant did consider that B stayed in close proximity to the father and his siblings.

29. The family consultant formed the view that “the children have each aligned with one party and they do not appear motivated to change the current arrangement. Instead they appeared invested in reinforcing it”.[4]

    [4] Family Report 2 July 2018 at [147].

30. Notwithstanding the recommendations that the child spend every second weekend with the mother, at the time of the second assessment the relationship between the parties and the children has deteriorated.

31. C and the child have spent little time with the mother and B has spent no time with the father. The position of the parties and the children appears more entrenched.

32. On 17 August 2018 orders were made that the three children (but in reality only the child) spend time with the mother each fourth Sunday from 10.00 am to 4.00 pm and with the father each fourth Sunday on the intervening fortnight.

33. The mother reported that the child was highly resistant to spending time with her. She noted that the child pushes her away and refuses to engage with the mother. The mother reported her own observations that “it is heartbreaking when [the child] is sitting in the car crying. I know when she is acting but this is not acting”.

34. On occasion the child would spend prolonged periods in the toilet at the place of handover.

35. On interview the family consultant noted that the child “presented as a somewhat adultified, confident and assertive girl”. It is disturbing to note the extent to which the child had become invested in the proceedings by her interrogation of the family consultant as to the process, the procedural order and other issues which could only have come about as a result of her being included in adult conversations about the litigation.

36. The child presented as inflexible in her opposition to spending time with the mother. She had contemplated her attitude if forced to see the mother and considered that if that were the case, then the time should be reduced to three hours. Throughout the observed interaction the child sat silently in a corner. She lacked animation or enthusiasm and it was an awkward interaction. The family consultant recorded that the observation ended without any warmth having been shown by either C or the child towards the mother.

37. The family consultant was asked to consider how the child would react to being removed from the father’s care and transition to the mother’s primary care.

38. It should be remembered that the mother considered that whilst initially it would be difficult, if the child was able to be separated from the negative and toxic influence of the father, she would be able to resume a relationship with the mother.

39. The family consultant considered that the child was a strong willed pre-adolescent and would be unlikely to comply with any order. If anything, there is the potential for such an outcome to only deepen the child’s resistance to a relationship with the mother.

40. The family consultant recommended that the child spend four hours every fourth weekend with the mother until she is 13 and thereafter she be permitted to determine the extent, if any, of her relationship with the mother.

41. The family consultant had given careful consideration to the dilemma in which the parties find themselves.

42. The child has remained consistent in her refusal to engage with the mother over an extended period of time.

43. The family consultant could not support an order that provided for the child to spend no time with her mother. Equally, she was entirely certain that if orders were made in terms of the mother’s application the child would not remain with her

44. The family consultant considered that it was important that the child maintain a relationship with the mother. If she did not do so, there may well be serious consequences in terms of the child’s ability to maintain future relationships.

45. The family consultant should be considered as an impressive witness who was able to assess the parties and the children but in particular the child over an extended period. I attach significant weight to her evidence.

Parenting considerations

1. The parties have consented to an order for equal shared parental responsibility. Given the total inability of the parties to reconcile their differences and the reasonable finding that they will not be able to communicate or reach consensus on any major issue that might affect the children, it is surprising that each party urged the Court to make an order for equal shared parental responsibility. Counsel were challenged to identify evidence that would properly form the basis for such an order. The evidence supports a finding of dysfunction in the relationship between the parents rather than any optimism that once the litigation is concluded, they may well be able to reconcile their differences.

2. Nonetheless, the parties reached their own agreement following extensive discussions. It is not a matter for me to explore the basis upon which each of the parties consider that the best interests of the children would be served by such an order.

3. To some extent the agreement as to equal shared parental responsibility represents the only circumstance where the parties have reached common ground.

4. The family consultant did recommend parental responsibility be shared and her evidence is that the existence of shared parental responsibility on an interim basis did not appear to create unnecessary problems or exacerbate the poor relationship between the parties.

5. I suspect that the parties simply ignore the potential benefit of attempting to reach a consensus as to major issues affecting the children and go about their own separate decision making.

6. Whatever misgivings may arise from the state of the evidence, the parties consent for equal shared parental responsibility was persuasive.

7. Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).

1. I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3). I am mindful of the directions contained in s 60CC(2A).

2. I propose to adopt the following approach:-

   (1)To give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;

   (2)To have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);

   (3)To have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;

   (4)To have regard to the primary considerations under s 60CC(2) namely, the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;

   (5)To have regard to the additional considers under s 60CC(3);

   (6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be considered to one or more of the matters raised then it must be the subject of delineation and comment.

3. Given that an order has been made for equal shared parental responsibility, the Court is required to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practical.

4. Neither party seeks an order for equal time. The mother’s proposal is that the child reside in her primary care and spend alternate weekend time with the father. The father’s proposal is more restrictive. He adopts the recommendations of the family consultant that the child’s time with the mother should be limited to four hours each fourth week and that upon her 13^th birthday the time that she would spend with her mother should be subject to her wishes.

Meaningful relationship

1. The best interests of the child is the paramount consideration. The aim and objects of the Act are to ensure that the best interests of a child 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 the child from physical or psychological harm or 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 the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

2. In Mazorski & Albright [2007] FamCA 520 Brown J considered the definition of “meaningful” and observed at:-

   26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …

3. At present the child has a relationship with her mother but it could not be said it is either meaningful, substantial or important.

4. The interaction between the mother and the child is strained and devoid of emotional attachment. The evidence supports a finding that the child refused to engage with her mother even though the mother has used her best endeavours to support the relationship with the child and put in place a foundation upon which the relationship may be fostered and improved.

5. The family consultant considers that the child does not want a relationship with her mother. It is also accepted that if no orders were made then it is likely that the child would have little or nothing to do with her mother into the foreseeable future.

6. Whilst the child may not wish to engage with her mother, the family consultant considers that it would not be in the child’s interests to not spend time with the mother.

7. The family consultant is concerned for the psychological and emotional wellbeing of the child and at age 11 years considers that she is too young to make such a decision. It is unlikely that the child would understand her emotional wellbeing may be adversely affected by being placed in a situation where she can control her relationship with her mother and potentially future relationships.

8. The desirability of the child maintaining a relationship with the mother must be tempered by the concerns of the family consultant that if an order was made in terms of the mother’s proposal or indeed an order more expansive than the father’s proposal, there is a real risk that the child will refuse to spend time with the mother at all.

9. The mother’s proposal would see the child transition to her primary care.

10. The basis of the mother’s proposal is that whilst the transition will be difficult and is likely to be met by strong resistance from the child, eventually she will come around and will willingly re-engage with the mother.

11. I accept the level of the mother’s distress at not having a relationship with the child. The mother’s proposal is based upon her genuine belief that the nexus between the child, the father and C needs to be severed before the child will realise the benefit that will inure by seeing her mother. The mother contends that whilst she is able and prepared to support the child’s relationship with the father, he is not prepared to reciprocate.

12. The mother has led no evidence that would enable the Court to make the order that she seeks. It is not a matter of the Court exercising its discretion in a vacuum.

13. The mother’s counsel was not able to obtain concession from the family consultant other than that there should be an order that provides the child to spend some limited time with the mother.

14. In the absence of evidence, the mother’s proposal would be based upon a misguided but genuine belief that if the child was not given any choice in the matter then she would reconcile her differences with the mother.

15. The most relevant evidence is that which was given by the family consultant. Her evidence is that if the child was forced to participate in an onerous arrangement she has the ability and intention to rebel potentially to her own physical detriment.

16. The likely outcome is to consider the extent to which the child should spend time with the mother and at what point the child should be able to determine the extent, if any, of her relationship with the parties.

17. It is a regrettable outcome that even on the most optimistic overview, the relationship that is likely to exist between the child and the mother will not be meaningful but that must be tempered against the overwhelming evidence of the family consultant that the alternative is likely to be no relationship at all.

18. The parties are aware of the destructive consequences of their inability to put aside their differences and focus on the needs of their children. C does not have a relationship with the mother, B does not have a relationship with the father and, without orders, the child would not only cease to have a relationship with her mother but also B.

Wishes of the child

1. The child is aged 11 years. She is 14 months from her 13^th birthday at which time the father seeks that the child determine her parenting arrangements.

2. The child presents as strong willed and having become invested with the litigation. She is aware of the issues and focuses on the dysfunction of her parents in not promoting the relationship of C and B with the non-primary care parent.

3. It is a simplistic but potentially compelling next step for the child to consider that like her siblings, she should be able to determine her future arrangements.

4. There is little doubt, that if left to the child’s own decision she would spend no time with her mother. The family consultant does not consider that that would be in the child’s best interests and accordingly, whilst I give weight to the child’s wishes, I do not consider they should be determinative. She lacks insight into her own psychological wellbeing. Her reasons for not engaging with her mother are dramatized and considered at their highest, would not provide an appropriate basis for a child to have no relationship with a parent. The mother does not present as a significant risk to the child.

5. I consider that the child should continue to spend time with the mother but on a limited basis.

The extent to which of the child’s parents have fulfilled or failed to fulfil the parent’s obligation to maintain the child

1. The father maintains the child. The mother does not. The parties have a deep-seated dislike and mistrust for each other. There is no likelihood that they will reconcile their differences.

2. The child refuses to engage with the mother at any level that would enable the mother to fulfil a parental role. It is hoped that may change but that is not the case at the moment.

The likely effect of any change in the child’s circumstances

1. The mother’s proposal would represent a dramatic change for the child. She would transition from her father’s home where she feels comfortable, safe and secure to the mother’s home where at present she refuses to go.

2. The child would also lose the relationship she has with C even though there are some aspects of that relationship which do not assist her. However, there is no certainty that resuming a close relationship with B would better promote the child’s wellbeing. B strongly resists a relationship with his father. C does not support a relationship with the mother and it is clear from the observations of the family consultant that the child is strongly influenced by her older brother. The risk is that in the mother’s home she would also be subject to B’s negative attitude towards the father.

3. I reject any assertion by the mother that she is more likely to support the child’s relationship with the father as opposed to his preparedness to support the child’s relationship with the mother.

4. The likely effect of a significant change to the primary care of the mother is the likelihood she would rebel and have no relationship with the mother.

Orders that are least likely to lead to further litigation

1. The parties have been in litigation since 2015. Each of them have been the subject of contravention proceedings and have been placed on a bond to be of good behaviour for a period of six months.

2. The father’s evidence is that he will promote and ensure that the child spends time with the mother providing the order is limited to the recommendations of the family consultant.

3. Whilst it might be said that he pays lip service to the benefit of the child maintaining a relationship with the mother, he does at least highlight that for some considerable period of time, albeit reluctantly, the child has attended on the mother.

4. The orders recommended by the family consultant and adopted by the father have at least some prospect of being achieved and maintained.

5. I consider that the time recommended by the family consultant of four hours should be extended to five hours. This represents a reduction of one hour on the current arrangements but an increase on the recommendation of the family consultant.

6. There is no evidence that assists the Court in determining the age at which the child should make her own decisions.

7. When confronted with the reality that the child will turn 13 years of age in only 14 months, the family consultant considered that this may be too short a time. When considered on an arithmetical basis, this would represent about 14 occasions.

Conclusion

1. I consider that orders should be made for the child to see her mother on the basis of five hours each fourth week, such further or other times as the child may request but that upon attaining the age of 14 years, the child will spend time with her mother subject to her wishes.

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

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 December 2019.

Associate:

Date: 11 December 2019