Wallace and Hughes

[2007] FamCA 256

FAMILY COURT OF AUSTRALIA

WALLACE & HUGHES [2007] FamCA 256

FAMILY LAW - CHILDREN - With whom a child spends time - Less adversarial trial

Family Law Act 1975 (Cth)

APPLICANT: Mr Wallace

RESPONDENT: Ms Hughes

FILE NUMBER: SYF 5311 of 2003

DATE DELIVERED: 13 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 22 February 2007

REPRESENTATION

APPLICANT: The father in person

RESPONDENT: The mother in person

Orders

1. The mother is to have sole parental responsibility for the children:

   (a)       M born in March 1995

   (b)       L born in March 1997

   (c)       F born in November 1998 and

   (d)       C born in November 2000.

2. If the father is prepared to enter into a conversation with the mother in relation to the children’s schooling, health, or other important developmental subject, the mother is to discuss with him options in relation to any significant change in the children’s circumstances or any proposed medical procedure and take the father’s views into account when making a decision about such matters.

3. The children spend time with the father as follows:

   (a)       during school term

   (i)every second Sunday from 10.30 am until school time the following Monday.  First period to commence Sunday, 11 March 2007

   (ii)each Wednesday from after school until school time the next morning

   (b)       during school holidays:

   (i)during Christmas school holidays, unless the mother is taking the children away from their home with her for holidays, they will continue to see their father on the same basis as that provided for during school term with the exception that the alternate Sunday time will conclude at 10.30 am on Monday and the weekly Wednesday time shall commence at 10.30 am on Wednesday and conclude at 10.30 am on Thursday

   (ii)during the school holidays at the end of the first school term and the end of the third school term the children are to spend one Wednesday from 10.30 am until 10.30 am the next day with their father.  The mother is to choose which Wednesday it will be in each of those holidays and notify the father not less than three weeks prior to the commencement of the holidays of the particular nominated day.

4. The children spend such other time with their father as may be agreed between the parents.

5. If changeovers between the parents pursuant to these orders do not take place by the father collecting the children from or returning the children to their schools then they are to take place at the M Police Station.

6. Whenever these Orders refer to commencing after school or concluding at school time the commencement will occur with the father collecting the children from their schools at the conclusion of the school day and the conclusion will occur with the father delivering the children to their school in time for the commencement of the school day.

7. For six Wednesday periods in each calendar year and six Sunday periods in each calendar year when the father is due to spend time with the children pursuant to these Orders the father may, by giving the mother 28 days’ notice in writing, suspend the operation of the Order for the period of time nominated in the notice, provided it does not exceed the period stipulated in this Order.

8. In the event of the mother and children being absent from Sydney and the children therefore not available to spend time with their father the mother is to give 28 days’ notice to the father of such absence and in such event she may by notice suspend up to six Wednesday periods and three Sunday periods of time for the children to spend with their father.  In such circumstances the father may nominate any other time during school term as make up time for him with the children and the mother is to facilitate such make up time.  The father is to give 14 days notice to the mother of his intention to exercise such make up time with the children.  In the event of the children having an extra curricular event scheduled for the make up day the father is to ensure their attendance at that activity whilst the children are with him.

1. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

The Court notes

(A)The father has said he will not telephone the children whilst they are with their mother however he will receive telephone calls from the children if they choose to telephone him.

(B)The father has informed the Court that the amount of time he is able to spend with the children is limited by his work commitments.

(C)The mother has stated that it is in the children’s best interests to spend greater periods of time with their father than the Orders made today provide.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 5311 of 2003

Mr Wallace

Applicant

And

Ms Hughes

Respondent

REASONS FOR JUDGMENT

Introduction

1. M born in March 1995, L born in March 1997, F born in November 1998 and C born in November 2000 are the children of the mother and the father.

2. The parents commenced residing together in about 1990 and separated finally towards the end of 2002.  The parents have been involved in intense conflict since the separation and the children’s time with their father has been limited.

3. The case presents an extraordinary set of circumstances where the father (the non-residential parent) says he is only prepared to spend time with the children on alternate Sundays from 10.30 am until school time the following morning and each Wednesday from after school until school time on the next morning during school term.  He has further agreed to spend time during the Christmas school holidays on the same basis as if it was school term during that time when the children are not holidaying with their mother.  During school holidays the father would see the children each alternate Sunday from 10.30 am until 10.30 am the next morning.  He would also see the children each Wednesday from 10.30 am until 10.30 am the next morning.  During the school holidays at the conclusion of the first term and third term of school the father says he is only prepared to spend time with the children for one Wednesday that being from 10.30 am on Wednesday till 10.30 am the next morning.

1. As is outlined in the Family Report prepared by Ms K the father harbours a great deal of hostility and ongoing acrimony directed towards the mother.  In the Court’s experience this is a most unusual set of circumstances.  During the entirety of the time the parents spent before me I did not observe the father make eye contact with the mother on one occasion.  He appeared to deliberately face away from her and his presentation was that of an angry, controlling person.

2. Somewhat paradoxically the father claims that his actions in only agreeing to spend particular and limited time with the children is to avoid the ability of the mother to control him.  It appears to me that the controlling in this relationship in respect of the time the children should spend between each parent is largely contained in the father’s presentation and proposals.

3. The father presented as a person who was not prepared to have any person or institution dictate to him how he was to behave or present himself.  Because the presentation of the father in my court was so unusual, I suspected that he might suffer from some form of personality disorder or other mental illness.  Ms K, the Family Reporter, offered a view of why the father presented the way he did in this case but quickly qualified that view by saying that she was not qualified to confirm that view as a diagnosis.  Likewise I am not qualified to make any such diagnosis and I do not.  Nonetheless, given my warrant to make an order which is in the best interests of the children I do hold a concern about the father’s mental health.

4. The somewhat extraordinary presentation of the father is seen as more extraordinary when the involvement of the father in the care of the children prior to separation is learnt.  The mother readily admits that prior to the separation the father had extensive involvement in the day to day care of the children and on her version was an excellent father.  The children clearly love their father and wish to spend more time with him and this in itself must be indicative of the good foundation of the relationship between them.

5. Ms K interviewed the father’s current wife Mrs W and she recorded the following:

   “[The father’s wife] demonstrated an appropriate understanding of the need for children to have positive relationships with both parents after separation, and is supportive of the father’s relationship with the children.  Her statements indicate that she would be supportive of [the father] having a more involved role with his children but she said that she both understands and supports his current stance.”

6. Each of the children was interviewed by the Family Consultant.

1. The Family Consultant woke to M who was 11 at the date of the interview.  She said that she would like to see her father each week suggesting that the current arrangements should continue although she also expressed a desire for her father to be more involved in her life.

2. I should pause here to note that the father is not prepared to attend the children’s school or sporting events at this time.

3. L, who was 9 at the time he saw the Family Consultant, was assessed by her to be a child who yearns for his father to be more physically and emotionally available to him and for his father and himself to have a more active relationship in terms of doing things together outside the home.  She did not attribute to him any particular stated wish.

4. F aged 8 said he wanted to spend consecutive periods of three to four days with his father.  He wished his parents did not fight and that they would get on better together with each other.  C who was 6 said she wanted to spend more time with her father.

5. During the observation of the children with their father the Family Consultant noted that the father remained physically distant from the children.  There was one exception and that was with C who had sought out her father.  His interaction with the children indicated that he was also emotionally distant.  At one stage the Family Consultant recorded that C had asked her father to join her in an activity away from where he was sitting however he refused.

6. In her evaluation the Family Consultant referred to the father’s dramatically changed relationship with his children as problematic.  During his interview with the Family Consultant the father was adamant that he did not want orders made for any additional time with the children.  He wanted to be able to make arrangements with the mother, at least during school holiday periods, on an ad hoc basis.  The mother was equally adamant that she would not agree to an ad hoc arrangement in regard to the children spending time with their father.  Having said that it emerged during the course of evidence before me that the parties were able to make arrangements for the children to spend at least ten days with their father during the Christmas school holidays just concluded. 

7. In relation to her interview with the father the Family Consultant said he presented as a parent who is ambivalent regarding his relationship with his children.  She said that he did not want to be tied into parenting arrangements which were dictated by Court orders but rather he wanted to ensure the minimum was the subject of Court order and then by mutual agreement with the mother agree to other occasions on an ad hoc basis.  This was a somewhat unusual request given that the only method of communication the father is prepared to indulge in with the mother is by mobile text messages.  As stated earlier the father refuses to speak to the mother at all and in fact refuses to make eye contact with her whilst they are at Court.  He told the Family Consultant that in the past he felt the mother had involved the children in a hate campaign against him and his wife.  He also felt that when the children were with him it was “like having the enemy in my house”.  He claimed that the mother used the children to spy on him.  The father still blames the mother for his need to withdraw from the children according to the Family Consultant.  This was a reference to the geographical proximity of the mother.

8. The Family Consultant said that during the interviews with the father there were recurring themes such as “the idea that the mother is using him as a babysitter;  that the mother is manipulating him;  that the mother does not respect him.  He likened the mother’s behaviour to a player in a chess game, saying she is the player in control”.  The Family Consultant further records that the father blames the mother for the breakdown of the marriage.

9. The Family Report records as follows:

   “[The father] refused to have a joint interview with [the mother].  He said he was unable to imagine a time in the future when he would want to have any contact with her and thus would not attend any of the children’s school or sporting events as he did not want to see her.  He seemed oblivious to the possible negative impact of his stance on the children or their future relationship with him.”

10. Since the parties’ separation the mother has remarried and has another child S who was born in June 2004.  Unfortunately her relationship with her husband has now broken down and she has separated from him.  During earlier appearances before me she claimed that the ongoing conflict between she and the children’s father was placing strain on the relationship between herself and her husband.

11. The father resides at B and the mother at N.  These premises are about 5 minutes drive apart.

12. The children attend M Public School.

13. The father is paying child support however the amount of the child support is a little difficult to determine because both the mother and the Father say in their Questionnaire forms that the payment is $130 per week.  The Mother said in her oral evidence that his payment amounted to $6.00 for each child.  The emphasis of her evidence was that this provided virtually no financial assistance for the care of the children and thereby limited her ability to provide for the children.

14. On 2 September 2006 interim orders were made for the children to spend time with their father.

Section 60CC

1. I am required to consider the provisions of Section 60CC.  In doing so I now consider firstly the provisions of Section 60CC(3).

Section 60CC(3)

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The views of the children are set out in the Family Report and referred to earlier by me in these Reasons.

   (b)the nature of the relationship of the child with:  (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

2. The children appear to have a good and close relationship with each of their parents and with each of their parents’ partners.  The children’s relationship with their father must be seen as being under a cloud and potentially likely to be damaged due to the father’s attitude towards the children.

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

3. The mother certainly has displayed in the hearing before me a willingness and ability to facilitate a close and continuing relationship between the children and the father.  In her evidence before me and also when she saw the Family Consultant she expressed regret about some of her behaviour post separation and she readily admits she did not act in the best interests of the children.  Given the father’s statements to the Family Consultant about his relationship with the mother and his view of her it is difficult to see how he could encourage a close and continuing relationship between the children and the mother.  It at least appears that he is silent about any such relationship and possibly refuses to discuss with the children any aspect of their mother.  I could not see how he could convincingly speak positively to the children about their mother.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. This subsection does not have any significant application to this case because the proposal of the father would limit any change in the children’s circumstances such as them spending more time with their father.

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

2. The parties live very close to each other, approximately 5 minutes drive apart and so the exchange of the children between the households is an easy exercise.  I should say at this point, that where the handovers do not take place at school they take at the M Police Station.  As an aside the father said this was the mothers preferred site.

   (f)the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

3. This case must raise questions about the father’s capacity to provide for the needs of the children including their emotional and intellectual needs.  Given his attitude and current state of mind it seems that he may himself be involved in emotional turmoil and therefore not able to properly provide for his children’s needs.  The mother’s presentation and evidence would convince me that she does have the capacity to provide for the children’s future emotional and intellectual needs.

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

4. The father’s profession is that of a wedding photographer.  Consequently he says that most of his work is on weekends.  This in part is his explanation for why he has little time to offer his children.  The mother said that in proceedings relating to Child Support the father argued that his business is dwindling and he had very little work.  He used that information to support his contention in those proceedings that he could not afford a particular level of Child Support.  The father did admit in evidence before me that he had made that statement to the Child Support Registrar.

5. Two of the children are male children.  They need a male role model to help them develop.  The mother’s husband is no longer a member of her household.  The father may not be a very good role model if he is not modelling responsible parenting.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i)  the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

6. There is nothing in this consideration that impacts on the subject case.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. This consideration requires me to look at the attitude to the children and the responsibility of the parenthood demonstrated and in particular in this case by the father.  I am satisfied that the mother is demonstrating responsible parenting in respect of each of their children.  The father’s attitude, as I have referred to earlier, is difficult to fathom and requires no further statement at this time.  Suffice to say that in my opinion he is not acting as a responsible parent for his children.

   (j)any family violence involving the child or a member of the child’s family

   (k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

2. The balance of the matters in subparagraph (j), (k) and (l) do not require additional consideration in this case.

   (m)any other fact or circumstance that the court thinks is relevant

3. I did consider with the Family Consultant the prospect of forcing the father to have additional time with the children over and above that which he said he would be prepared to offer.  It may have been possible to order that the children spend each alternate Tuesday night with their father however, the evidence of the Family Consultant as to the impact on the children of forcing their father to spend additional time with them and the predictable outcome of that namely, that he would not turn up to collect the children, would be damaging to the children.  In such circumstances I could not make a further order which had the effect of damaging the children.  In my opinion the children stand a very significant chance of being damaged by their father’s current attitude towards them and towards not spending time with them.  Unfortunately there is nothing that I can see in the future which is likely to change his position.  It appears that the father is driven by his own needs and selfishness in the circumstances and that may be outside his personal control in the event of him suffering from some form of psychiatric or psychological illness or abnormality.

Section 60CC(4)

(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)has taken, or failed to take, the opportunity:

(i)     to participate in making decisions about major long-term issues in relation to the child;  and

(ii)    to spend time with the child;  and

(iii)   to communicate with the child;  and

(b)has facilitated, or failed to facilitate, the other parent:

(i)     participating in making decisions about major long-term issues in relation to the child;  and

(ii)    spending time with the child;  and

(iii)   communicating with the child;  and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

1. Again under this heading the father falls for criticism in that he has failed to participate in making decisions about the children’s major long term issues principally because he refuses to indulge in any conversation with the mother.  He has also refused to spend time with the children as has been requested by the mother and he still refuses to telephone the children to communicate with them however he has agreed to speak to the children if they call him.  He will not attend their sporting or school activities.  He is not prepared to participate in supervising the children’s homework because of a view he apparently holds that it is not a worthwhile activity.  This he explained was somehow connected to his own schooling where he was not required to do homework.

Section 60CC(4A)

(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

1. I have considered the circumstances and events since separation to the extent that they are relevant and in evidence before me.

Section 60CC(2)

Primary considerations

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

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

1. The orders which the father is prepared to tolerate, in terms of the time he can afford his children, will provide for the children to see him during school term at least on a weekly basis.  Hopefully there will be additional time for the children to spend with their father during school holidays.  Whether they spend more than Wednesdays or every second Sunday with their father at any time in the future will depend on the father’s ability to bring himself to request further time to spend with the children.

2. The potential for psychological harm to the children as a result of the father’s attitude to spending time with them and his current attitude towards their mother must be significant.  Nothing said by the Family Consultant or by me during the course of this hearing appears to have had any impact on the father in that he has not softened his position or changed the focus from his own needs to the needs of the children.  There is nothing further the Court can do to assist the children in this respect.

3. I am required to consider making an order under Section 61DA for equal shared parental responsibility.  In this case I have reached the conclusion that the presumption in favour of equal shared parental responsibility must be rebutted as a result of the father’s behaviour and presentation before the Court.  The father has made it impossible for the Court to make an order as envisaged by the legislation because he refuses to have any conversation with the mother other than through text messages on a mobile phone.  It is impossible to have any reasonable communication between the parents for the purposes of discussing and reaching collective decisions for the benefit of the children.  In the circumstances I propose to vest the parental responsibility with the mother but require her attempt to consult with the father before making decisions in relation to the long term care, welfare or development of the children.

Section 65DAA

1. In this case there is no order for equal shared parental responsibility.  I do therefore not need to consider the matters set out under this section.

Conclusion

1. These children need their father to take a different stand in relation to spending time with them and to develop the capacity to put their needs ahead of his own personal needs.  They need their father to change his focus on life away from himself and onto them.  They need to have a relationship with him which is positive and which is not riddled by paranoia on his part that the children are somehow acting as agents for their mother collecting information in respect of his household whenever they are with him.  The children need their father to be involved in every aspect of their life including their schooling and sporting activities.  He is not prepared to involve himself at any level in their schooling or in their sporting life.  During evidence he told me that he would not participate with the children in doing homework because he was never required to do homework and he doesn’t consider it is beneficial for the children.  This just adds to a list of views on parenting which appears to be a departure from what the Court would normally expect of parents living in our society.

2. The mother in this case is in desperate need of assistance in the care and supervision of the children given that she has now lost the benefit of her partner being available to assist her.  She has the task of raising five children with very limited assistance from the father.  It is a sad reflection on the children’s father that he has taken the stand he has taken against them and as predicted by the Family Consultant it may well result in the children ultimately giving up on him.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  13 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WALLACE & HUGHES