Wang & Dennison (No 2)
[2009] FamCA 1251
•18 December 2009
FAMILY COURT OF AUSTRALIA
| WANG & DENNISON (NO. 2) | [2009] FamCA 1251 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – unsubstantiated sexual abuse allegations against father by mother – where interim orders allowed for the reunification of father with children – where reunification was not successful and children would be placed in emotional and physical harm if orders were made for time with the father |
| APPLICANT: | Ms Wen |
| RESPONDENT: | Mr Dennison |
| INDEPENDENT CHILDREN’S LAWYER: | Septimus Jones & Lee |
| FILE NUMBER: | MLF | 2835 | of | 2004 |
| DATE DELIVERED: | 18 December 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 16 July 2009 and 24 August 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms D Weiner |
| SOLICITOR FOR THE APPLICANT: | Perry Weston |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms M Glaister |
Orders
IT IS ORDERED:
That the mother and father each have parental responsibility for the children S born … February 1998 and N born … March 2000.
That the children live with the wife.
That the father be at liberty to communicate with the children as follows:-
(a)By way of letter to each of the children on each of the children’s birthdays and at Christmas and Easter in each year, such correspondence to be sent by prepaid post to their place of residence; and
(b)As may otherwise be requested by the children from time to time.
That the mother and the father do all acts and things necessary for the children to attend upon Mr A or such other family consultant as is nominated by the Manager or a Deputy Manager of Child Dispute Services of this Registry of the Court for the purpose of providing the father with an opportunity to assure the children, either directly or through or in the company of Mr A that, if either or both of the children wish to see the father or to spend time with him in the future, he will always welcome them and that, in the meantime, he will keep track of their progress at school and write to them occasionally.
That the children attend upon the family consultant at this Registry in accordance with the previous order on Monday 4 January 2010 at 2.00 p.m. and whether the father sees the children in person is a matter within the sole discretion of the family consultant having regard to the family consultant’s assessment of the children’s wellbeing at the time.
That the mother do all acts and things necessary to keep the father informed of the residential address of the children and of the name and address of the school at which each child is from time to time enrolled to attend and by not later than 12.00 noon on Monday 21 December 2009 advise the independent children’s lawyer of where each child is enrolled to attend school in 2010.
That the mother do all acts and things necessary to keep the father informed in writing of any medical emergency or serious medical condition of the children or either of them and of the name and address of any hospital to which the children, or either of them, are admitted for treatment.
That the father advise the mother, the children and the proper officer of any school at which the child attends of any change to his residential and contact address.
That for the avoidance of doubt, the father is at liberty to contact the proper officer of any school at which the children attend and to obtain progress reports as to the child’s education and her wellbeing incidental to her education and the proper officer of any such school may at his or her discretion convey to the father any expression of interest on the part of either girl to seeing the father or communicating with him.
That the independent children’s lawyer send to each of the following persons a copy of my reasons for this decision:-
(a)The proper officer of the school at which S is enrolled to attend in 2010;
(b)The proper officer of the school at which N is enrolled to attend in 2010;
(c) The proper officer and/or … of Centacare, X –
and, if at all practicable, do so prior to the teachers commencing their long summer school vacation.
That the independent children’s lawyer convey to the proper officer of the school attended by each child that the father’s parental responsibility for the children is equivalent to the mother’s parental responsibility for the children and that the father is entitled to receive direct from the school, school reports and applications to order school photographs of the children and any other document customarily provided to parents and the father be responsible for the reasonable expense (if any) of that information being provided to him.
That if the children (or either of them) change school after the independent children’s lawyer ceases to be involved in this matter, the father is at liberty to provide my reasons for this decision and my reasons published on 20 March 2009 to the proper officer of the new school(s) attended by the children.
That the order requesting the appointment of the independent children’s lawyer be and is hereby discharged.
That all documents produced on subpoena be returned to the person or entity who produced same.
That all parenting applications be otherwise dismissed.
That this matter be removed from the list of active pending cases.
AND IT IS NOTED BY THE COURT THAT there is no order requiring the children, or either of them, to spend time with the father.
That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Wang & Dennison is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: (P)MLF2835 OF 2004
| MS WANG |
Applicant
And
| MR DENNISON |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the children S born in February 1998 and N born in March 2000. The matter was heard over 26 days between February and August 2008. I delivered reasons for judgment in this matter on 20 March 2009 and made interim orders. The matter came before me again for final determination on 16 July and 24 August 2009, following an attempt to reunite the children to the father in accordance with the interim orders.
The facts set out in my earlier reasons will not be restated. These reasons should be read in conjunction with my earlier reasons particularly in relation to the history of the matter.
At the final hearing in 2008, the court found that the allegations of physical and sexual violence made by the mother against the father were without foundation. The court was satisfied that the mother had purposefully conditioned the children to believe that they had been abused by the father, when they had not, and that she had done so in order to cut the father out of the lives of the children. Nonetheless the children had not spent face to face time with the father for the preceding three and a half years, in mid-2005, when S was seven years old and N was five years old. The interim orders provided for the children to live with the mother and spend time and communicate with the father as directed by the counsellor at Centacare at X. The issue of residence and spend time arrangements with the father was reserved. These reasons deal with the resumption of the hearing and the orders which I have made which finally dispose of the proceedings.
Evidence
The father relied upon an affidavit sworn and filed 13 July 2009 and an affidavit sworn and filed 19 August 2009. The father’s affidavits contain a combination of evidence and submission, including evidence upon which I made findings in the reasons of 20 March 2009 which is not relevant to the current determination and will not be restated. The father was cross examined. When asked to consider the merit of the family consultant’s recommendation that the girls be given respite from his attempts to see them and be involved in their lives, he referred to it as ‘a ridiculous proposition. They need me now. How do I know how they will be?’
He accepted that S and N should live together. His evidence was that if the girls were placed in his care and the mother refused to see them ‘they will miss her but then get on with their life’ and ‘it will be damaging, hurtful but they will get over it.’ Finally, ‘it will not affect them because they have never had a properly affectionate mother … they will learn to adjust.’
There is some merit in the father’s description of the mother as an unaffectionate carer. However, it does not follow to my mind that the girls would cope successfully if their relationship with her was severed. When asked to comment on the fact that his proposals to have the girls reside primarily with him were formulated in 2008 when Ms L shared his residence, he responded ‘I have replaced her with another Chinese student.’ The father’s evidence portrayed little insight by him into the emotional needs and wellbeing of S and N now or into the future. I do not doubt that the father regards Ms L with affection and respect but his evidence was telling of a lack of insight into the girls’ emotional requirements and how important Ms L could have been in providing a healthy and caring environment.
The mother relied upon an affidavit sworn 19 August 2009, filed 20 August 2009. The mother was cross examined. She testified that she has no problems with the children spending time with the father ‘as long as they are happy’. But she recognises that they are not happy to attend and she says that that she cannot force the children. She described forcing the children to do something as ‘my least favourite thing.’ The mother gave evidence that if the girls lived with the father she would not see them two or three times a week, as suggested by the father, in fact, she will not see them at all. She said words to the effect of:
I won’t see them anymore, there is no meaning. They are with [the father] now. My reason is that if the children are with [the father], they are safe and I don’t have to worry about them. My reasons is that if the children are with the father they might feel weird being with me.
Under cross examination the mother admitted to having enrolled S in secondary school, without reference to the father and that the fact of the enrolment was not communicated to the father prior to it being announced in court in response to a question from me. The mother was no more impressive as a witness in this final proceeding than she was in the lengthy proceedings in 2008.
Mr A prepared a summary report dated 6 August 2009 on the outcome of the reunification process, pursuant to an order made 16 July 2009. Mr A was cross examined. I will discuss his evidence below. He was a helpful witness. I give weight to his expert evidence.
The mother’s solicitor, Michael Weston, gave evidence about the timeliness with which the orders and reasons for judgment were explained to the mother including the requirement that she take the children to Centacare. I am satisfied that Mr Weston acted properly at all times.
I apply the balance of probabilities as the standard of proof.
Statements of fact are findings of fact.
Proposals and recommendations
The father’s position
The father submits that the court should find that the children are at risk of:
· harm from psychological abuse by the mother;
· exposure to violence from the mother;
· ‘developing immoral values of the society’ and ‘developing a negative prospective of life and not trusting any body in the community’ from the mother.
In his affidavit sworn and filed 13 July 2009, the father proposes that the children live with him and spend no time with the mother for a six month period. He proposes that the mother undertake a parenting course and the children have regular consultations with Dr B for a six month period. Time with the mother would eventually constitute alternate weekends from Friday to Sunday afternoons, as well as on special occasions and school holidays. He further seeks that ‘if the mother starts to control the children and try to alienate them against the father and the rest of the family the all contacts must be stopped immediately.’
In the event that the court finds the children should remain living with the mother, the father proposes that the children spend graduated time with the father for approximately two weeks, and then resume contact as per the orders made in 2004. The 2004 orders, made by consent shortly prior to separation, provided for time with the father every Wednesday afternoon for one hour, on alternate weekends from Friday to Sunday afternoon and four hours on a Sunday every other week.
The father submitted a third proposal, in which he sought that, under the supervision of Mr A, the children be immediately removed from the mother’s care and accommodated in temporary community care. He sought that the children be taken to consult Dr B or another qualified psychologist with the aim of contact with the father resuming; that upon the advice of Dr B and Mr A the children move from temporary care to live with the father. The mother would not have any contact with the children until the children have reconnected to the father, after which ‘appropriate contact orders’ should be made.
In his summary report, Mr A noted that the father was steadfast in his belief that the children should be removed from the mother’s care. However, when challenged about the reality of the children living with him given the current state of their relationship, the father conceded that the success of the proposal would depend on S’s agreement to live with him, which was unlikely. At that point, the father raised the prospect of the children being placed in community care and the possibility of preserving a relationship with N in the absence of a relationship with S.
The father maintains that the mother has made a range of contraventions against the 20 March 2009 orders, including that she did not provide him with information about S’s schooling, has denigrated the father to the children and has undermined the children’s participation in the post orders program whereby he was to be reintroduced to the children.
The father’s position is that the sessions at Centacare were used by the mother to persist in undermining his relationship with the children and alienating them from him. The father challenged the qualifications and abilities of Centacare staff to deal with the complexities of the case. He believes the children continue to be heavily influenced by the mother’s views of him.
The mother’s position
The mother supports the recommendations of Mr A, set out below, that the children remain living with her and have no contact with the father.
The mother maintains that she has cooperated with the orders and has attended each session with Centacare except on one occasion, which will be detailed below, when S refused to get on the train to attend Centacare and ran away from her in a distressed state.
The mother rejects the father’s proposal for the children to live with him. She deposes that the children would not accept the situation and would be at risk of harming themselves if forced to do so. She strongly rejects any proposal which would split N from S and the mother or require the children to be placed into care.
The ICL’s proposals
The ICL supported Mr A’s recommendations.
The ICL submitted that the Court should find that the children are not at risk of harm from sexual or physical abuse by the father. That has already been done. Despite those findings, the ICL’s position was that there should be no orders requiring the children to spend time or communicate with the father. It was submitted that orders should be made which provide that the:-
a. The children live with the wife.
b. The children spend time and communicate with the father as follows:-
1. By way of letter from the father to each of the children on each of the children's birthdays and at Christmas and Easter in each year;
2. For a meeting(s) at Centacare to be attended by the father and children (in such manner as determined appropriate by Centacare) for the father to assure the children that despite orders to the contrary, he wishes to see them and spend time with them in the future as and when they may wish to see him; and
3. Unless otherwise requested by the children, the father spend no further time nor communicate with the children.
c. That the father and the children continue to attend Centacare, at such times as recommended by Centacare.
d. That the mother keep the father informed of her residential address and the school attended by the children.
e. That the father be permitted to contact the school at which the children attend to obtain progress reports as to their education.
f. Such further or other order as the Court sees fit.
g. That the appointment of the Independent Children's Lawyer be discharged.
Professional recommendations
Mr A’s report recommends that the children remain living with the mother and not have any contact with the father at this point in time. The report recommends that the children be provided with counselling to ‘address their unresolved feelings about their familial relationships.’ Similarly, Mr A recommends that the father is likely to benefit from ongoing support with Centacare or a similar agency. Finally, Mr A recommends that the children have the final orders explained to them by a professional, in particular to ensure that if they remain in their mother’s care but decide to spend time with their father in future they have an understanding as to how to seek support to enable this to occur.
When asked in cross examination about the likelihood of the children wanting to see the father, Mr A stated that it was possible the children may change their minds about not wanting to see their father during their development in adolescence and ‘the children may have a conflict with the mother which is a catalyst to reconnect with the father.’ I accept that evidence.
The children’s time with the father
The interim orders of 20 March 2009 stipulated that the parties do all things necessary to be accepted into a post orders program, with a view to the children being reunited with their father and siblings, J, E and Ms L. At the request of either party, a family consultant was to supervise the parties’ compliance with the orders pursuant to s 65L.
Pursuant to paragraph 1 of the orders made 20 March 2009, Mr A, family consultant, referred the parents and children to the parenting orders program at Centacare on 20 March 2009. Mr A’s report states that he attended a formal handover meeting with Ms KS of Centacare on 25 March 2009, where he explained to Ms KS the pertinent sections of the interim orders and judgment.
The father deposes that he was contacted by a counsellor from Centacare, Ms UL, the week after the interim orders were made, and attended sessions almost weekly from the end of March 2009 until mid June 2009. According to attendance records annexed to his affidavit, the father attended seven individual counselling sessions at Centacare, two with the mother’s eldest daughter from a previous relationship, Ms L, as well as the two sessions he saw the children.
The mother had four individual counselling sessions and attended three sessions with the children.
The father states that he was told on 9 April 2009 by Ms UL that the children had agreed to see him on 22 April 2009. However, he received a phone call from Ms UL on 21 April 2009 stating that the children would not be attending. The father attended Ms UL on 22 April 2009 who explained to him that it was a difficult situation and that it was very hard to get the children to attend. Subsequently, the father spoke to the ICL, the mother’s solicitor and Mr A. On 6 May 2009, the father states he received a phone call from the mother’s solicitor saying that they had spoken to their client and she has agreed to take the children to counselling.
The children attended counselling sessions at Centacare on six occasions from 15 April 2009 to 17 June 2009. They attended with their mother on 15 April 2009 and 13 May 2009. A session was scheduled for 22 April 2009, which they did not attend, according to the mother, because S refused to embark the train.
The mother’s evidence is that she consistently complied with the orders about the reunification counselling however on one occasion S became angry at the train station when the mother told her they were going to Centacare, and refused to get on the train. When the mother insisted that she embark, S ran off crying. The mother followed S back home and was unable to persuade S. S continued to be upset and refused to attend despite the mother’s efforts. I accept that this occurred.
The children first saw their father on 27 May 2009, following a session with their counsellor on the same day. The father’s evidence is that he believed the children were told not to talk to him, or touch any food or gifts he had brought. Nonetheless, they played cards (although S did not play, she participated), the children agreed to meet him the next week and the counsellor gave the father positive feedback about the session. The father denies that the children were terrified or cried silently in his presence.
On 3 June 2009, the children saw their father for a second and final time, again, following a session with their counsellor. The father’s evidence was that he attended with an expectation that he would meet the children on this date,[1] and was asked to wait in his car whilst staff spoke to the children 30 minutes prior to the joint session. The father waited in his car for one hour and was eventually told by the counsellor that the children did not want to continue with the process. The counsellor requested that the children tell the father themselves, which they did. According to the father, S stated:
It is not fair. It is not all mum’s fault. If we see you then we have to live with you. Then it is not fair for mum. Mum has given us birth and done all the things for us. Then she will never see us again. We do not want to come here and waste our time. We waste 6 hours every time to come here. We do not need any relative or brothers or sisters or father. We are very happy with our mum.[2]
[1] The father’s affidavit states the date as 3 May 2009, but having regard to the Centacare records it is likely this is a typographical error and should state 3 June 2009.
[2] Affidavit of the father sworn and filed 13 July 2009 [21].
On 10 June the father met with Ms UL and the children’s counsellor who reiterated to the father that it was a difficult situation and that they would ‘“try our best to convince her (the mother).”’[3]
[3] Affidavit of the father sworn and filed 13 July 2009 [27].
On 17 June 2009, the children attended a final session at Centacare accompanied by their mother.
The entire report of Centacare read as follows[4]:-
[4] Exhibit “ICL27”
Please find included a record of attendance at Centacare [X] following the Family Court referral to the Parenting Orders Program on 20th March 2009.
·The mother attended for 8 consultations without the children (both alone and with an interpreter as determined appropriate) – the first session took place on the 20/3/09 and the final session on 30/6/09.
·The mother engaged in 11 phone consultations/contacts.
·The mother bought the girls, [S] and [N], for 5 long consultations.
·Two of these consultations included the girls meeting with the father [Mr Dennison] – on the 27th May and the 3rd June. These carefully planned, long consultations provided opportunity for [N] and [S] to meet and talk with their father in a supervised, structured environment.
·That father attended for two further consultations with his step daughter [Ms L].
·The father has been involved in significant ongoing contact with the program, working with his case manager prior to the recent referral and has participated in regular consultations, face to face and by phone, subsequent to the Family court referral.
The children have met with the father on two occasions.
The children voice their determination to have no contact with their father.
Despite the intensive work undertaken, with the mother and children, [S] and [N], we do not consider that this resolution will soften.
The children appear to have no capacity to believe they can have a relationship with their father.
The children demonstrate a strong bond with the mother.
On my calculation the family was provided with eight hours of telephone attendances[5] and nearly 30 hours of face to face attendances[6]. It was never intended that the professionals from Centacare would be witnesses in the proceeding and I make no judgment with respect to them other than to say that, in spite of the father’s complaints, the service was not impugned. However, this case demonstrates to me the qualitatively different appreciation which the court has of interventions of this nature, which were once done within the court before the downsizing of court based counselling services, as opposed to what is now required to be done by agencies which are remote from the court.
[5] 3.75 hours for the father; 2.75 hours for the mother and 2 hours for the mother and one or both of the children
[6] 14.5 hours for the father, 7.75 hour for the mother, 4 hours for the mother and the children, 2 hours for the father with the children and the children were seen for one hour together
The children’s views
The summary report prepared by Mr A plainly sets out the children’s views in relation to each of their parents and their involvement in the parental conflict. The children initially engaged reluctantly with the family consultant, but were eventually relaxed enough to articulately express their views. Mr A states that the children presented as ‘articulate, forthright, and self assured adolescents.’[7]
[7] Mr A, Summary Report dated 6 August 2009, pg 4.
When asked by the family consultant why she appeared unhappy, S responded ‘“who would be coming here!”’ Mr A viewed her comment as indicative of her anger and annoyance at being involved in what she believes to be a ‘never-ending process’. S stated ‘“regardless of what the Judge thinks I will eventually be able to live with my mum”’, and volunteered the view (without being prompted) that ‘“if you’d asked me I’d say I want to live with mum but none of you would listen! Technically you don’t [listen], because you still want to make us have contact with [our] father, which is what we refuse…”’[8]
[8] Mr A, Summary Report dated 6 August 2009, pg 4.
Similar anger was directed by S towards attending Centacare counselling, which forced her to miss school and which she did not believe to be constructive. She stated that she had attempted to avoid attending sessions but that she was unable to influence her mother who was insistent upon her attendance. On one occasion, she explained that she had been able to run away from her mother at the train station, which allowed her to miss the session but resulted in an argument with her mother.
In Mr A’s opinion, S demonstrates insight into the effect of the orders on the mother, where S’s refusal to comply ‘“gets her mother into trouble”’ which she views as ‘“unfair.”’[9] She rejects the father’s belief that she has been brainwashed by her mother.
[9] Summary report dated 6 August 2009, pg 5.
Overall, Mr A concludes that:
[S] is vehemently opposed to the possibility of living with her father, and does not want to spend time with him. [S’s] views are influenced by her recollections of what she believes her father has done to her in the past. Her feelings about these matters are compounded by the ongoing parental conflict, the longstanding Court proceedings, and the perceived effect this has had on her mother.
Troublingly, S states that she has considered self-harming if she were forced to live with her father. According to Mr A, she stated: ‘“if they [the Court] were going to harm me [by making a decision to live with the father], why wouldn’t I harm myself?”’[10] Mr A observed that her thoughts of self-harm have extended to a consideration of how she might carry this out.
[10] Mr A, Summary Report dated 6 August 2009, pg 5.
N displayed a similar attitude towards the father. She could not recount any positive thoughts about her experience of seeing the father at Centacare, and stated that not seeing the father for four years was ‘“pretty good.”’ Like S, N’s negative views of her father were influenced by her recollections of family violence and conflict and her belief that the father is not supportive of her and her sister. She rejected the father’s explanations for the children’s negative memories of him, as well as his view that the mother influences them. Instead, she proposed that it was her father who attempted to influence their views of the mother. She stated that the mother ‘“doesn’t control us, even if she tries to make us go [to spend time with their father] we won’t go…”’ Largely, she holds her father responsible for the ongoing proceedings.
When asked to focus on the future, N stated that she:
wished that her father “would go away and leave us alone, and for Court to stop! It’s annoying and takes time away from school…’ [N] wishes that her sister, her mother and herself could “all live happily ever after” and that her father would allow them the opportunity to experience such happiness… Consistent with her sister, [N] is adamant that she will continue to refuse to live with, or indeed spend time with her father.
N also expressed that she would harm herself if she were required to live with her father, although in Mr A’s opinion her view was less developed than S’s. Nonetheless, Mr A adverted that the very contemplation of self-harm by a young child was highly problematic.
The parent’s attitudes
In preparation of the summary report, Mr A spoke to each of the parents regarding their views and experiences since the making of the interim orders.
The mother is described by Mr A as open and cooperative. Mr A states that she was able to focus on the children’s happiness as the prime issue, rather than seeking to re-examine historical allegations. The mother emphasised the children’s views as an important factor, particularly given S’s threats to harm herself, which have included stating to the mother ‘if you force me further I will kill myself.’ The mother expressed that she understood the gravity of complying with the orders and was adamant that she did so.
In contrast, the father is described as being ‘mildly argumentative’ and heavily focussed on past issues and attributing blame to the mother for the failure of the Centacare referral. The father expressed his inability to ‘walk away’ from his children, given his success with his other children, and was insistent on the children being removed from the mother’s care and influence as an answer to resolving the current impasse.
The father was dismissive of S’s threats to self-harm, viewing it as an example of the children ‘emulating their mother’s views and behaviour.’ In Mr A’s opinion, dismissal of these threats contains ‘the inherent risk that the threats are indeed a genuine reaction to the anger, frustration and uncertainty inherent in the children having been exposed to ongoing unresolved conflict in excess of four years.’[11]
[11] Mr A, Summary Report dated 6 August 2009, pg 9.
Although Mr A expressed understanding of the father’s intractable position and dismissive attitude towards the children’s views, he concluded that in pursuing a relationship with N and S, the father is perpetuating the parental conflict, further polarising the children’s views of him and raising the level of risk of harm to the children. Mr A states that the father appears incapable of contemplating that the children may have formed independent views about the father, regardless of the mother’s influence.
Mr A concluded that what the children require is a settled, peaceful environment where they are able to move beyond the conflict between their parents and focus on their development:
[S] and [N] will benefit significantly if their father was able to not only understand their experience, but was able to respect their views, albeit views that are different from his own firmly held views. If [the father] could offer [S] and [N] such an opportunity to allow them to experience a significant period of time where they are not exposed to the unresolved and persistent conflict, then potential for a future relationship is likely to remain. If, however, the children have [the father’s] solution imposed on them, regardless of how realistic such a proposal may be, there is a significant risk, given their respective ages, that not only will the girls begin to ‘act out’, but their academic skills will deteriorate and their anger and frustration about the current situation will compromise their capacity to meet important developmental milestones. In addition, there is the ever present spectre that [N] and [S] will engage their respective thoughts about harming themselves.
I accept Mr A’s conclusions.
Relevant law – parenting issues
These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to S and N, I must regard the children’s best interests as the paramount consideration.
At paragraphs 291 to 372 of my reasons of 20 March 2009, I discussed the principles applicable to a determination of parenting matters, the relationship between the objects of the legislation and the principles and discussed the findings of fact in the context of the primary and additional considerations. I will not repeat them but I have regard to those legal principles in this decision.
Primary considerations
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(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.
This is a case where both of the primary considerations are relevant.
In the proposals of each of the parties, the quality and nature of S and N’s future relationship with the other parent is jeopardised.
The children are currently completely estranged from their father, not having spent time with him since July and August 2005, when S was 7 years old and N was 5 years old. The mother’s proposal, which is supported by the ICL and the family consultant, is that the children remain living with her and spend no time with the father. Two of the father’s three articulated proposals involve the children being immediately removed from the mother’s care.
Moreover, each party contends that the children are at risk in the care of the other parent. The mother submits that the children are at serious risk of committing acts of self-harm if they were to be placed in their father’s care. This is supported by the evidence of Mr A. Even if the children’s threats are not acted upon, the presentation of the children to Mr A provides strong evidence of the gravity of the situation they view themselves to be in, and the volition of their wishes to remain in their mother’s sole care.
The father submits that the children are at risk of psychological abuse and exposure to violence by the mother. There is no evidence that substantiates that the children are currently at risk of physical violence by the mother. I have found previously that the mother’s false allegations against the father, and her involvement of the children in those allegations, constituted emotional and psychological abuse of the girls. As undesirable as it may be from the father’s perspective, the potential for the children to continue to suffer emotional abuse by the mother in this manner diminishes if the children do not spend any time with the father.
The additional considerations
I have regard to the additional considerations set out in s 60CC(3).
The children’s wishes
I have discussed the children’s views above. I have regard to them pursuant to s 60CC(3)(a) of the Act. The very strong opposition of both children to spending time with, let alone living with, the father is at the fore of this determination. S is almost 12 and N nearly 10 years of age. The children have always been exposed to the unhappiness of their parents’ marriage. They have been participants in police investigations, DHS investigations, a criminal trial in which they gave evidence and were cross examined and protracted litigation in this court. They are intelligent, capable and articulate children, but they have not developed immune from the destructive nature of the parental conflict.
The strong views the children are evincing are not models of objectivity. However, I accept that they are views the children genuinely hold. It is not surprising that the children are clearly aligned with the mother who is their primary caregiver. They have lived exclusively in the mother’s care for the past four years. The intervention at Centacare was not successful in modifying the children’s alliance with the mother against the father. It is tragic that the exposure of the children to the parental conflict has created in them an emotional opposition to their father so vehement that it extends to threats of harming themselves if they were to be placed in his care. Nonetheless, that is the situation with which the court is currently faced.
I accept the children hold unwavering negative views of the father, and that requiring the children to spend time with him, or requiring them to attend therapy directed at re-unification of the children with him would place them at an unacceptable level of emotional and physical risk.
I also consider the children’s views and positions from the unarticulated perspective of wanting and needing to remain in a relationship with the mother. The mother’s evidence was that, if the girls live with the father, she will not see them. There is no evidence that she has communicated this view to either of the girls but, nonetheless, I am satisfied that each girl fears that the mother will reject them if they have anything to do with the father. The girls have direct and indirect experience of the mother’s capacity to turn her back on her child.
S would have been four and a half years old and N would have been only two and a half years old when their adult sister, Ms L, arrived from China to live with them. They were too young at that stage to absorb the fact that the mother had effectively abandoned Ms L. However, by the time the parents separated, some two years later, in 2004, at least S would have comprehended that the mother had left Ms L, at two years of age, with the paternal grandparents and was not reunited with her until Ms L was an adult. I am not, and have not previously been, critical of the mother for leaving Ms L with her paternal grandparents but I am satisfied that the fact that she did so would be interpreted by N and S as an abandonment by their mother of their older sister.
Furthermore, post separation, the mother repudiated any relationship with Ms L and did so on her own behalf and on behalf of the children. She demonised Ms L to the girls in the same unjustified and cruel way that she demonised the father to them. In her extensive oral evidence she stated that seeing Ms L would not be of any benefit to the girls.
Even when Ms L returned to China to marry and live, the mother’s obdurate attitude to Ms L persisted. At the trial in July 2009, the mother stated ‘I won’t forgive her. If she really wants to ask for my forgiveness, I would not throw her out.’ The mother gave evidence about a hurtful and insulting letter which she had recently received from Ms L. In due course the letter was produced and translated.[12] Ms L wrote to the mother asking for the mother to attend her forthcoming marriage and to talk to her each week and meet her future husband in the interim. It is a dissertation on their sad relationship and directed toward reconciliation with her mother but, I accept, could be construed by the mother as being critical of her. Ms L wrote many things including:-
…. As long as you are willing I am happy to look after you. When you feel bored and lonely in Australia, you can go back China to join me. You can live in China for several months and stay at our place. I will go with you for shopping, travelling and eating good foods, and let you have a happy holiday. I will try my best to let you enjoy the happiness of having your children look after you for the rest of your life. You will be happy every day. Mum, please give me a chance to look after you and to feel loved by you, OK?[13]
And later:-
Mum, I will fly to China on 24th this month. If possible, I mean if possible (of course I don’t cherish much hope), I hope you can call me and meet you before I go, so that I will be at ease when I leave. If you don’t want me to see my two sisters, it doesn’t matter. It is OK for me not to see them. I only want to see you before I go back to China. You don’t have to worry. I will certainly not mention anything about my two sisters to [the father]. I don’t want to be involved in it any more. I have my own life and I only want to go on with it. I promise that I will only talk about you and me. It will be the same in the future. I will not let myself be involved between you two. If possible, we can meet at any café in the city. All I want to do is to sit by your side and have a good chat. That’s all. You can choose anytime when two sisters are at school. I can also assure you that I will not tell [the father] about your contact details. Please do not worry about it, OK?
However, if you really do not want to see me before I go back to China, I have to leave first. I can only pray that you could contact me as soon as possible during the time when I am in China. We can talk about anything on the phone. If you have anything to say or feel dissatisfied with me, you can tell me over the phone. We can communicate with each other by phone in advance, and then I can bring my fiancé to meet you in a few months. I hope you can open your arms to welcome us. He is a good guy. He will treat you like his own mother. [14]
And
[…] I will be expecting your call everyday.[15]
[12] Exhibit “C10”
[13] Exhibit “C10”, fourth page
[14] Exhibit “C10”, fifth and sixth pages
[15] Exhibit “C10”, final words, last page
The mother’s treatment of Ms L is a poignant illustration to the girls of how the mother will treat them if they, like Ms L, tolerate having any relationship with the father. The girls could be in no doubt that to embrace any positive relationship with the father is to risk the complete loss of their relationship with the mother. This is a perspective to which I have regard when taking the children’s views into account in assessing, prospectively, the benefit to each of them of having a meaningful relationship with the father.
The willingness and ability of each parent to facilitate and encourage the children’s relationship with others;[16]
[16] s 60CC(3)(c) Family Law Act 1975 (Cth)
The capacity of the parents to meet the children’s needs[17]
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[18]
[17] s 60CC(3)(f) Family Law Act 1975 (Cth)
[18] s 60CC(3)(i) Family Law Act 1975 (Cth)
As set out in my earlier reasons, the court can have little faith that the mother has any genuine willingness or capacity to facilitate and encourage the children’s relationship with the father. That said, the children are now of an age where they are responsible for acting in accordance with their own beliefs, however ill founded those beliefs may be. Even if the mother really wanted the children to have a meaningful relationship with the father, she could not convey that sentiment to the children in any credible way. I accept the mother’s evidence that she is now unable to force the children to spend time with the father. The mother’s past actions have decimated the girls’ relationship with the father but they have also had the effect of damaging her own relationship with, and authority over, the girls. That is a further tragic aspect of this case.
In spite of the enormous levels of conflict in the parties’ relationship, I accept that the father would try to facilitate a relationship between the children and the mother. This is in spite of one of his proposals involving the removal of the children from the mother in order to place them in temporary community care. I understand the father’s position in this respect but am unconvinced of its validity given the ages of the girls and the autonomy to which they have now become accustomed. Also, I am not satisfied that the mother would permit the girls to spend time with her if they lived predominately in the care of the father and she may well shun the girls if they are agreeable or cooperative about spending time with the father.
The father’s dismissive attitude to the children’s reactions towards him are indicative of his limited capacity to separate his quest to have a relationship with the girls, from the girls’ needs to live in a peaceful, stable environment without further implication in a horrendous level of hostility and conflict. It is understandable that the father has not developed an appreciation of the girls’ needs or emotional development. It is difficult enough for parents who live with their children to anticipate how and when their children attain varying degrees of independence. It is almost impossible for the father to have done so given their complete estrangement from him.
In general terms, I have found the father to be intelligent and forbearing. He has faced enormous hurdles in his relationship with the mother and in his efforts to be involved in the lives of his children. However, the girls’ need for peace seems beyond his abilities to comprehend and that is a real deficit for him in the current case. He has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with N and S but has not done so out of any bitterness or vindictiveness towards the mother. Nor has his campaign been based on selfishness. I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification, it is beyond the capacity of the mother to provide.
It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well motivated and best performing parent. The Court has regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, at least to the extent of any conflict. As was observed incisively by Fogarty J in Sampson and Sampson[19] -
In many cases [a] problem arises because the custodial parent quite irrationally and wrongly creates such difficulties about access that its continuance has a demonstrable detrimental affect upon the child. Even in cases where the situation is brought about in this way the same considerations apply. The matter is to be determined having regard to the welfare of the child, not by considerations of either sympathy for the innocent non-custodial parent or feelings of frustration or annoyance with the custodial parent.
In such a case the question of the future custody of the child again must be determined only upon a test of the welfare of the child. It ought not to be determined by unconscious feelings of punishing the custodial party who appears to have brought the situation about or rewarding the innocent non-custodial party. In cases where the welfare of the child dictates that that child should remain in the custody of the former custodian that must be the result even though the consequence may be that the non-custodial party, innocent of any wrong doing, is severed for at least the time from continuing connection with his or her child.
[19] (1977) FLC 90-253
The father demonstrates a better attitude to the responsibilities of parenthood than does the mother. The father is well motivated to, and would, permit the girls to have a meaningful relationship with the mother whereas the mother is not at all inclined to do so vis a vis the girls and the father. However, the total estrangement of the girls to the father and their opposition to consider having any involvement with him in the future means that he has no opportunity to exercise his skills as a parent.
The children’s maturity, sex, background and other characteristics[20]
[20] s 60CC(3)(g) Family Law Act 1975(Cth)
S and N are quickly approaching adolescence. They have been in the sole care of the mother for the last five years. Their views of their father are coloured by (what I have previously found to be false) allegations of physical and sexual abuse by the father of them and their mother. To place the children in their father’s care would present a serious disregard of their emotional and developmental needs as young women.
I also have regard to the fact that each girl will, inevitably, identify with the mother. This will occur in spite of them becoming adults, partnering or attaining economic independence. If this is a case, and I suspect it is, where the children can enjoy an interactive relationship with only one parent, it is in their interests that the relationship with their mother remains intact. To do otherwise will impact negatively on the image they have of her, and themselves, in later life.
The girls say currently that they want no involvement whatsoever with the father. I am satisfied that is based, at least in part, upon an ill founded but genuine aversion to him. However, any disruption of the girls’ relationship with the mother will not necessarily result in an improvement of either girl’s relationship with the father. It is more likely than not that to remove the children from the mother, as the father proposes, will leave them without any parent in an emotional sense and bereft of any stability. As the family consultant opined[21]:-
If, however, the children have [the father’s] solution imposed on them, regardless of how realistic such a proposal may be, there is a significant risk, given their respective ages, that not only will the girls begin to ‘act out’, but their academic skills will deteriorate and their anger and frustration about the current situation will compromise their capacity to meet important developmental milestones. In addition, there is the ever present spectre that [N] and [S] will enact their respective thoughts about harming themselves. Were this to occur this would be a tragedy for all concerned and both parents are implored to reflect on how to prevent this from occurring. Putting aside whether [the mother] has, or has not influenced the children, it is helpful to be reminded that the children have experienced a significant period of their lives underpinned by uncertainty and ongoing conflict, and ongoing litigation, including the experience of being witnesses who were cross examined in another jurisdiction. In some respects it is not surprising that the children have, rightly or wrongly, aligned themselves with their mother at their father’s expense as a means of self protection and to escape the untenable nature of their relationship with their warring parents.
[21] Summary Report of Mr A dated 6 August 2009, page 10
I accept that evidence.
Any family violence involving the children or any member of the children’s family and family violence orders[22]
[22] ss 60CC(3)(j) and (k) Family Law Act (Cth)
I have previously made findings that the mother’s allegations of family violence were unsubstantiated, made and maintained with malicious intent on her part and in circumstances which have been extremely detrimental to the emotional well being of S and N.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[23]
[23] s 60CC(3)(l) Family Law Act (Cth)
I accept that an end to litigation is the most positive step that can be taken for S and N even though they have not been reconciled with the father in any sense. I am mindful that there is no reunification in sight or likely to occur in the short term.
The father’s struggle to maintain contact with S and N has been unremitting. It has been exhausting for the girls. I accept the following evidence of the family consultant that it is imperative for the emotional wellbeing of the girls that the litigation cease:-
[S] and [N] need an opportunity to settle, to live in an environment where their future has certainty and where they can begin to move beyond the present conflict and the persistent emotional pressure. If [the father] was able to ‘take a step back’, having apparently been vindicated of any wrongdoing, to allow [S] and [N] to feel secure and focus on their academic interests as accomplished students, they are likely to have a significantly greater opportunity to confront the often confusing developmental milestones inherent in adolescence. On that basis [S] and [N] need the current conflict to stop, and contrary to [the father’s] view, they need to stop feeling they have to defend their mother, whom they perceive has been under attack from their father, and more recently from the Court. [S] and [N] will benefit significantly if their father was able to not only understand their experience, but was able to respect their views, albeit views that are different from his own firmly held views. If [the father] could offer [S] and [N] such an opportunity to allow them to experience a significant period of time where they are not exposed to the unresolved and persistent conflict, then potential for a future relationship is likely to remain.
In his final address the father proposed that the children be assessed by an expert psychiatrist. This was a new and different application. He submitted that there must be some way ‘to see what is really inside the children’ and that ‘it would be totally unfair to have an end to the proceeding if there is a way [through counselling to reunite him with the children].’ There was no specific evidence about psychiatric assessment but I am confident that if the family consultant had considered it would help, he would have mentioned it accordingly. I am comfortably satisfied that it will not assist and will, in fact, drive the children even further away from the father.
It is not likely that S or N will be able to have a meaningful relationship with the father in the short or medium term. The reconciliation, if it ever comes, will be years away and, most likely, not before each of them becomes financially and emotionally independent of the mother and can assess from a more remote perspective the dysfunctional and brutal elements of their childhood.
In the early case of Wood and Wood[24], the Full Court observed that:-
[it is] the Judge alone, who must assess the merits or otherwise of the competing proposals and determine which is preferable. It is both a public duty and a personal responsibility.
It is with disappointment that I have come to the conclusion that these proceedings should cease without there being any hope of S and N being able to enjoy a positive relationship with the father in the foreseeable future.
[24] (1976) FLC 90-098
Any other fact or circumstance the Court thinks relevant[25]
[25] s 60CC(3)(m) Family Law Act (Cth)
It was Mr A’s evidence, which I accept, that it is vital that the children be able to live in an environment where they are not the subjects of litigation or perpetual parental conflict. The interim orders where aimed at allowing a final opportunity for the relationship between the father and children to reconcile. I am satisfied that all possible interim measures have been exhausted and that the court must now make orders that the children spend no time with the father.
The family consultant recommends that the children be provided with counselling opportunities to address their unresolved feelings about their familial relationships. However, his report describes quite clearly the children’s strong aversion to counselling, despite the best efforts of professional staff at Centacare to re-establish a relationship with the children. S vehemently expressed that the sessions at Centacare were a waste of time and described her frustration at being forced to miss school. N expressed a similar opinion.
Given the protracted involvement of the children in ongoing parental conflict and litigation, and the children’s recent perceptions of counselling sessions, I am strongly disinclined to order that the children attend any type of counselling. As Mr A’s report plainly states, the children require a peaceful environment where they can develop as adolescents and move beyond the parental conflict which has defined their young lives to date. Any further engagement in counselling processes should be best judged by the primary caregiver and the children themselves.
A recommendation is also made by Mr A for the father to engage professional support from Centacare or a similar agency for the purpose of assisting him to resolve issues associated with the family breakdown and his future relationship with the children. The father’s views of Centacare, as stated in the summary report, reflect his deep cynicism of the agency and the associated court process, stating at one point that the sessions at Centacare were a ‘continuation of [the children’s] abuse.’[26] I would therefore, again, leave the decision of any future services engaged by the father in his own hands.
[26] Summary report dated 6 August 2009, pg 6.
S will commence secondary school in 2010. It is in S’s best interests that the providers of pastoral care at the school are aware of the context in which there are no arrangements for S and her younger sister to spend time with the father but that he is, nonetheless, able to be consulted and advised of all aspects of their schooling. Historically, the mother has made unfounded allegations of child abuse against the father and has contemplated changing the family name of the children to her own. I have no confidence that the mother, left to her own devices, will present a fair or balanced picture of the father to the school. By the same token, the father’s heavy accent, earnest manner of expression and pressure of speech has resulted in various child workers and social scientists being off put by his manner. It is not a reaction which I have shared over 27 days of defended hearings and a number of interlocutory applications. Sometimes he has been difficult to understand but his demeanour has been courteous and his submissions and approach to evidence have been intelligent. Then again, my dealings have been across a court room. These reasons may enable educators and other relevant persons to structure their interviews with the father so that he does not feel under pressure when apprising them of the relevant history.
Finally, the parties agree or do not oppose these reasons being made available to the proper officers of the school at which the children attend, or will attend in the future so I will make orders to that effect.
Parental responsibility
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[27] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[28] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[27] s 61B Family Law Act 1975 (Cth).
[28] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[29] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[30] and to ‘make a genuine effort to come to a joint decision about that issue’.[31] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[29] s 65DAC(2) Family Law Act 1975 (Cth).
[30] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[31] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[32] or abuse of the child or another child who is a member of the parent’s family;[33]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[34] or;
c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[35]
[32] s 61DA(2)(b) Family Law Act 1975 (Cth).
[33] s 61DA(2)(a) Family Law Act 1975 (Cth).
[34] s 61DA(3) Family Law Act 1975 (Cth).
[35] s 61DA(4) Family Law Act 1975 (Cth).
I am satisfied on the evidence that it is not practicable nor feasible for the parents to share parental responsibility. That said, the best interests of the children require that the father be able to access information about their education and medical care. With the exception of the religious and cultural upbringing of the children, the father’s responsibilities should be equivalent to those of the mother and his status in this regard should be communicated to all concerned.
I will make orders for each party to have parental responsibility. That means they are equivalent. I do not expect that, absent a reunification between the father and the girls the father could have any practical say in the religious and cultural upbringing of the girls as a consequence of him not being involved in their day to day life. However, the evidence is that they will attend a Catholic secondary school which is consistent with the father’s religious beliefs. I expect that the children will continue to attend Chinese School and have no education in relation to the father’s cultural heritage. They have never been tutored in the father’s culture and, I am satisfied, that neither child would be prepared to start now. Likewise, in relation to health matters, the father has equivalent responsibility to the mother but will have little, if any scope, to exercise it given his remoteness from their day to day life.
Consideration of equal time or substantial and significant time with both parents
By virtue of having previously determined that it is not in the children’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider the appropriateness of the girls spending equal or substantial and significant time with each of the parents. I am satisfied on the evidence that it is not practicable nor consistent with the girls’ best interests to be required to spend any time with the father.
Conclusion
This is a particularly difficult case. Read in conjunction with my reasons delivered 20 March 2009, it should be apparent that this is not the outcome the interim orders made on the same date sought to facilitate. The necessity to preserve the children’s physical and emotional safety and welfare is overwhelming. However unsatisfactory this outcome is for the father, it is the outcome most aligned with the children’s best interests. In addition, it is the only outcome which will afford the girls the peace they require now whilst permitting some possibility of a relationship between the father, N, S and their siblings in the future, however long term that may be.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 18 December 2009
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