Watts & Watts (No 2)
[2024] FedCFamC1F 235
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Watts & Watts (No 2) [2024] FedCFamC1F 235
File number(s): SYC 8596 of 2020 Judgment of: BERMAN J Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – PARENTING – With whom a child spends time with – Where the children live with the mother – Where the older two children spend time with the father in accordance with their wishes – Consideration of what time the younger child should spend with the father – Consideration of risk – Concession that it is important for the children to have a meaningful relationship with the father – Consideration of the extent to which the younger should be permitted to negotiate her time spending arrangements – Where the single expert opines that fixed orders are in the younger child’s best interest – Fixed orders made for the child to spend time with the father. Legislation: Family Law Act 1975 (Cth) Div 12A, ss 60B, 60CA, 60CC, 61DA, 69ZT.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 7.1
Cases cited: Baglio & Baglio [2013] FamCA 105 Division: Division 1 First Instance Number of paragraphs: 188 Date of hearing: 12, 13, 14, 15, 16 and 23 February 2024 Place: Heard in Sydney, delivered in Adelaide Counsel for the Applicant: Ms Tabbernor Solicitor for the Applicant: Reid Family Lawyers Counsel for the Respondent: Mr Robertson Solicitor for the Respondent: Robertson Saxton Osborne Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Walkden Law and Mediation
Table of Corrections 23 April 2024 In paragraph 183 “18” years has been corrected to “13” years. ORDERS
SYC8596 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WATTS
Applicant
AND: MR WATTS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
12 APRIL 2024
These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 23 April 2024.
THE COURT ORDERS THAT:
1.Ms Watts (“the mother”) shall have sole parental responsibility for decisions concerning the long-term care, welfare and development of X born 2008 (“X”), Y born 2010 (“Y”) and Z born 2013 (“Z”) (collectively “the children”).
2.In exercising sole parental responsibility, the mother shall give Mr Watts (“the father”) fourteen (14) days’ notice, in writing, of any decision to be made by her which relates to the long-term care, welfare and development of the children.
3.The father is at liberty to provide his opinion in writing about the proposed decision within fourteen (14) days and the mother shall give consideration to the father’s opinion.
4.Within a further seven (7) days, the mother will notify the father in writing of any decision made by her.
5.The children shall live with the mother.
6.The children shall spend time with the father as follows:
(a)By telephone or other electronic means at either the father’s or the children’s instigation through the children’s personal mobiles/devices, noting that there is no obligation or requirement on the mother to ensure that the children answer or return the father’s call.
(b)On Father’s Day each year between 9.00 am to 4.00 pm (if not already in the father’s care).
(c)On the father’s birthday each year from after school until 8.00 pm on a school day and four (4) hours on a non-school day.
(d)On the Saturday or Sunday immediately preceding Christmas Day from 10.00 am to 4.00 pm or such other time requested by the children and agreed between the parties. If Christmas Day falls on a Saturday or Sunday, this time will occur on the Saturday or Sunday prior to the Christmas Eve/Christmas Day weekend, subject to the children’s sporting/extra-curricular commitments noting that the father is permitted to facilitate the children’s attendance at such commitments if the children are agreeable to same.
(e)On 19 July each year from after school until 8.00 pm on a school day and for a period of four (4) hours on a non-school day as agreed, but failing agreement from 9.00 am until 1.00 pm, subject to the children’s sporting/extra-curricular commitments noting that the father is permitted to facilitate the children’s attendance at such commitments if the children are agreeable to same.
(f)On 23 February each year from after school until 8.00 pm on a school day and for a period of four (4) hours on a non-school day as agreed, but failing agreement from 9.00 am until 1.00 pm, subject to the children’s sporting/extra-curricular commitments noting that the father is permitted to facilitate the children’s attendance at such commitments if the children are agreeable to same.
(g)At all other times in accordance with the children’s wishes and the mother will do all things to facilitate any reasonable request by the children to spend time with the father including overnight time if requested by the children.
7.Z shall spend time with the father as follows:
(a)From the date of these orders for a period of three (3) calendar months:
(i)On the first Saturday of each month from 9.00 am to 3.00 pm.
(b)Thereafter, until Z turns 13 years of age:
(i)Each alternate Saturday from 9.00 am to 4.00 pm; and
(ii)At all other times in accordance with Z’s wishes, including if those wishes seek to spend time with the father overnight.
8.The father shall ensure Z’s attendance at school/extra-curricular commitments and social events to which Z has been invited if such commitments/events occur during Z’s time with him.
9.The father is permitted to provide cards and birthday presents to the children for Christmas and their birthdays and the mother will do all things to provide the cards/gifts to the children, unopened, and will afford the children privacy to open the cards/gifts.
10.Except as otherwise agreed between the parties and/or the father, handover shall occur by:
(a)The father collecting the children from the mother’s residence at the commencement of time and delivering them back to the mother’s residence at the conclusion of time; or
(b)In the event Z’s extra-curricular/social activity commences before or at 9.00 am on Saturday when he is spending time with her pursuant to these orders, then handover at the commencement of time shall be at the extra-curricular activity/social location; and
(c)Notwithstanding the information provided by the mother to the father pursuant to this order, the mother shall do all things to advise the father in writing of the location of the extra-curricular/social event not less than twelve (12) hours prior to the handover time.
11.Within seven (7) days of the receipt of same, the mother shall provide the father with details of Z’s extra-curricular activity providers and the log-in-details, if applicable, and the father is permitted by these orders to obtain information about Z’s commitments.
12.For the purposes of the father’s time and communication with the children:
(a)
The father is restrained from drinking alcohol in the twelve (12) hours prior to and during at all times with the children; Without admission and until 12 February 2026 the father shall be restrained from consuming alcohol within 12 hours of spending time with Z or whilst ever she is in his care.(b)The father shall contact the mother in the event of any of the children expressing a significant wish to return to her during time and thereafter will immediately return the children to the mother’s home;
(c)The mother be restrained by injunction from contacting the children in the first instance while they are spending time with the father but is permitted to respond to the children if they contact her; and
(d)The father is to facilitate any contact between the children and the mother, as reasonably requested by the children while they are in his care and is restrained from withholding the children’s mobile phones from them.
13.The mother be permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel on the following conditions:
(a)The travel period be within school holidays, and no longer than six (6) weeks; and
(b)The mother will provide not less than thirty (30) days’ notice to the father of her intention to travel with the children with notice to include the dates of travel and the destination to which the children will be travelling.
14.Subject to the children’s wishes, the father be permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel upon the following conditions:
(a)The father will provide the mother not less than thirty (30) days’ notice to the mother of his intention to travel with the children with notice to include the dates of travel and the destination to which the children will be travelling.
15.Within fourteen (14) days of being provided with Australian Passport applications or applications for renewal for the children’s passport, each of the parties shall do all things necessary to complete the relevant details and sign the forms and return them to the party who is making the said application.
16.In the event that either party fails to comply with his or her obligation pursuant to sign all documents necessary to enable passport for each of the children to issue then pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth) and without further order being required, each of the parties are permitted to apply for and maintain current Australian passports for the children without the other’s consent.
17.The mother will retain the children’s passports at all times other than as may be required by the father to give effect to overseas travel for the children when in his care.
18.The father is permitted by these orders to approach the children’s school to obtain school reports and school photograph order forms and information about school events to which the parents are invited to attend.
19.The father is permitted to attend school and extra-curricular events to which parents are ordinarily invited with written notice to the mother not less than twenty four (24) hours prior to the event (with text messaging to be sufficient) and on the condition that he does not approach the mother during the event.
20.The parties will provide notice to the other if any of the children are hospitalised or involved in a serious accident as soon as practicable, but in any event within two (2) hours with notice to include, the nature of the illness or accident, the location of the treating hospital and the name of the childrens treating doctor. The father is permitted to contact the child’s treating doctor but is otherwise not permitted to attend the hospital in the absence of notice given by him of his intention to do so.
21.The parties shall keep the other advised as to their mobile telephone numbers, email addresses and postal addresses and any changes to those details within forty-eight (48) hours of any change taking place.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 23 April 2024
BERMAN J
INTRODUCTION
Ms Watts (“the mother”) and Mr Watts (“the father”) have been engaged in highly conflicted litigation in respect of the ongoing and future parenting arrangements for X born 2008, Y born 2010 and Z born 2013 (collectively “the children”).
At the commencement of the proceedings, it was apparent that whilst the parties maintained considerable animosity towards the other, by sheer dint of litigation extending over a four-year period, in recognition that X will soon be 16 years of age and Y now 14 years of age, the parties have been able to reach substantial agreement. The remaining outstanding issues are of narrow compass and effectively limited to the extent of time that Z should spend with the father and if so, whether it should be subject to her wishes.
A comparison of the orders sought in the Further Amended Initiating Application filed 5 January 2024 and the Amended Response to Initiating Application filed 30 January 2024 reveals the narrow parameters of the dispute.
The areas of contention were further refined by reference to the father’s Minute of Order tendered at the commencement of trial which confirmed his concession that the mother should have sole parental responsibility for the children provided that there be a condition that before any significant decision is made the mother shall first inform the father in writing.
The mother’s position at trial was initially set out in her Amended Minute of Order dated 12 February 2024 but further revised in a Further Amended Minute of Order dated 15 February 2024 (exhibit “18”) which adopted the father’s proposed order as to parental responsibility and abandoned orders for the parties and the children to undergo family therapy.
An important focus of the proceedings related to the mother’s concerns as to the extent of the father’s consumption of alcohol and her fear that if permitted to consume alcohol in the presence of the children, they may be placed at risk.
Accordingly, the mother’s Further Amended Minute of Order sought the following orders:-
10) For the purpose of the father’s time and communication with the children:
a) The father is restrained from drinking alcohol in the 12 hours prior to and during all time with the children.
b)The father shall contact the mother in the event of any of the children expressing a wish to return to her during time and thereafter will immediately return the children to the mother’s home.
c)The mother be restrained by injunction from contacting the children in the first instance while they are spending time with the father but is permitted to respond to the children if they contact her.
d)The father is to facilitate any contact between the children and the mother, as reasonably requested by the children while they are in his care and is restrained from withholding the children’s mobile phones from them.
11)For a period of 2 years from the date of these Orders, for the purposes of the father’s time with [Z]:
a)The father shall obtain and maintain an Australian Standard Breathalyser AS3547:1997 to be professionally calibrated every six months;
b)The father shall video himself taking a breathalyser test 45 minutes before any time commences and send the video (time and dated) to the mother via text message.
no less than 10 minutes before time is to commence.In the event of any positive reading for alcohol, time shall not occur.The initial position adopted by the father was to resist any order restraining him from drinking alcohol prior to or during his time with the children.
The father’s position altered at the conclusion of the evidence such that he now accepts that he should be restrained from drinking alcohol in the 12 hours prior to and during all times with the children. Whilst the father sought that the injunction should equally apply to the mother, counsel conceded that in the absence of any evidence to suggest that alcohol consumption was an adverse factor involved in the mother’s care of the children, such an order was no longer sought.
During final submissions, counsel for the mother advised that the mother no longer sought an order that the father’s time be conditional upon him obtaining and maintaining an Australian Standard Breathalyser unit nor was there any longer a need for the father to video himself taking a breathalyser test 45 minutes before any time spending was to commence.
Accordingly, the parties appeared to have reached agreement that the father is restrained from drinking alcohol in the 12 hours prior to and during him spending time with the children.
However, an issue that the Court is required to determine is whether what now appears to be the agreed position between the parties should extend beyond a period of two years from the date of the orders.
A further area of uncertainty arises from the agreed position of the parties that X, Y and, if successful in the orders sought by the mother, Z, are able to spend time with the father as per their wishes and whether that includes overnight time.
Whilst there was initially some reluctance by the mother to concede that the children could opt to spend overnight time with the father, it is apparent from the orders sought by her that the time Z should spend with the father (subject to her wishes) should also include the ability to spend overnight time with him.
The gravamen of the proceedings now narrowed to the differing orders sought by each of the parties as to the time that Z should spend with the father.
Accordingly, the father seeks the following order as set out in his propose Minute of Order:
5.That unless otherwise agreed between the parties in writing, [Z] shall spend time with the father as follows:
During school term:
i. On alternate weekends as follows:
(a)From 10am Saturday – 8pm Saturday for a period of six (6) weeks;
(b) From the conclusion of the six (6) weeks set out above, from 10am Saturday – 10am Sunday for a period of six (6) weeks;
(c)From the conclusion of the six (6) weeks set out above, from 10am Saturday – 8pm Sunday for a period of six (6) weeks;
(d)From the conclusion of the six (6) weeks set out above, from 10am Saturday until before school Monday
(As per original)
He also sought specific time including special occasions and block time for the 2024 and 2025 school holidays.
The orders sought by the mother are as follows:[1]
[1] Exhibit 18.
5.[Z] shall spend time with the father, subject to her wishes, which shall be communicated by [Z] to the father in writing, with text message being sufficient, as follows:
a) From the date of these orders for a period of six calendar months;
a) On the first Saturday of each month from 9.00 am to 3.00 pm;
b)And otherwise in accordance with [Z’s] wishes, including if those wishes include a desire to spend time with the father overnight.
b) Thereafter, until [Z] turns 13:
a) Each alternate Saturday from 9.00 am to 3.00 pm;
b)And otherwise in accordance with [Z’s] wishes, including if those wishes include a desire to spend time with the father overnight;
c) Thereafter, in accordance with [Z’s] wishes.
As such, even on the father’s case, it is likely he concedes that upon Z attaining the age of 13 years she will spend time with the father subject to her wishes and likely in a similar fashion to the arrangements in place for her older siblings.
Given the now limited areas of contention, whilst it would have been possible for the parties to reach agreement and avoid the emotional and financial costs of litigation, they remain unable to do so. An issue that separates the parties is the extent to which Z may resent and adopt a defiant or oppositional position to being required to spend time with the father in a manner different to her elder siblings.
The orders sought by the Independent Children’s Lawyer (“ICL”) were broadly in support of the orders agreed by the parties however, in respect of Z the ICL seeks the following order as set out in their proposed Minute of Order:
2. That the child [Z]:
2.1 Live with the mother;
2.2 Spend time with the father as follows:
2.2.1Commencing the second weekend after the date of these orders each alternate Saturday between 9.00 am to 4.00 pm.
2.2.2At all other times in accordance with [Z’s] wishes and the mother will do all things to facilitate any reasonable request by [Z] to spend time with the father.
The ICL also supported orders that would require the children to spend time with the father on Father’s Day, his birthday, on Christmas Eve and Christmas day in alternating years and for some hours on a date in February and a date in July in each year.
As will be the subject of more detailed discussion, the orders sought by the ICL are significantly informed by the opinion expressed and the recommendations made by Ms J, Clinical Psychologist, (“the report writer”).
BACKGROUND
The father is currently 50 years of age. The mother is currently 47 years of age.
The parties commenced a relationship in 1997, were married in 2004 and separated in December 2019 (according to the mother) or August 2020 (according to the father). Nothing turns on the date of separation.
In late 2020, the father was served with an Apprehended Domestic Violence Order (“ADVO”) which was later withdrawn and dismissed.
The parties have had difficulty in reaching agreement as to the time that the father would spend with the children.
The mother commenced proceedings on 30 November 2020.
Following mediation on 6 January 2021, the parties reached agreement as to property settlement and interim parenting orders that included conditions regarding the use of a breathalyser unit as a condition of the children spending time with the father arising from the mother’s concerns as to the father’s use of alcohol.
The father currently spends time with the children as set out in orders made by a Senior Judicial Registrar on 13 April 2022 which provide for the children to spend time with the father “in accordance with their wishes and by agreement between the parties”.
Handover arrangements were to occur at a fast-food restaurant with the following further orders being made to address the mother’s concerns:
4. That for the purposes of the father’s time with the children:
a.The father is restrained from drinking alcohol in the 12 hours prior to and during all time with the children.
b.The father shall obtain an Australian standard breathalyser AS3547:1997 to be professionally calibrated every six months.
(c)Video himself taking a breathalyser test 15 minutes before any time commences and send the video (time and dated) to the mother via text message no less than 10 minutes before time is to commence. In the event of any positive reading for alcohol time shall not occur.
(d)The father shall contact the mother in the event of any of the children expressing a wish to return to her during time and thereafter will immediately deliver the child/children to the changeover location being [Suburb N] McDonald’s carpark, unless otherwise agreed between the parties.
(e)The mother be restrained by injunction from contacting the children in the first instance while they are spending time with the father but is permitted to respond to the children if they contact her. For the purpose of this order the father is to facilitate any contact between the mother and the children, as reasonably requested, whilst they are in his care and is not to withhold the children’s mobile phones from them.
The interim orders further provided on a without admission basis that the parties be restrained from:
a. Shouting or criticising the children during their time with them;
b. Questioning the children about where they live with either parent;
c.Discussing arrangements to spend time with, or live with, either parent other than as ordered by the Court or agreed between the parties in writing;
d.Denigrating each other or the other’s family in the presence or hearing of the children and shall remove the children from any situation in which any other person is denigrating the other parent or their family in the presence or hearing of the children;
e. Discussing the family law proceedings with the children.
The present arrangements are such that the children make direct contact with the father. Y and X contact the father directly on their mobile phones however, it appears that Z contacts the father via the mother’s phone.
For a significant period of time, the children did not spend overnight time with the father however, of recent date, X has now commenced spending overnight time. Y and Z see the father during daytime only.
Exhibit “1” in the proceedings is a chronology of time spent between the children and their father from 19 April 2022 to 2 January 2024 inclusive.
The parties live in a short distance of each other.
X attends a different college to Y and Z however, both colleges are in Suburb O which is about a 30-minute drive from the father’s home.
Each of the parties have undergone their own therapy and have completed various parenting courses.
Y has received psychiatric and psychological counselling and there has been a history of Y refusing to attend school. The mother contends that Y has a complex relationship with the father, a proposition rejected by him.
For her part, the mother summarises the respective allegations made by each of the parties in her Outline of Case document filed 7 February 2024 as follows:-
(a)The mother makes a number of allegations against the father, within the context of her prosecuting a nuanced risk case, including that he has difficulties in controlling his anger and with emotional regulation, that he is controlling that verbally abusive to her and the children, that he was sexually coercive, that his alcohol consumption represents a risk to the children and that he has engaged in these proceedings in a manner to continue to exert control over the mother;
(b)The father makes allegations that the mother is controlling and verbally abusive, cannot control her anger, has alienated the children from him and in that aim has caused the children to attend upon an inappropriate number of treaters.
DOCUMENTS RELIED UPON
The mother seeks to rely upon the following documents:
(1)Further Amended Initiating Application filed 5 January 2024.
(2)Affidavit of the mother filed 15 January 2024 (“the mother’s trial affidavit”).
(3)Affidavit of Ms Q filed 15 January 2024.
(4)Financial Statement filed 15 January 2024.
(5)Outline of Case document filed 7 February 2024.
The father seeks to rely upon the following documents:
(1)Amended Response to Initiating Application filed 30 January 2024.
(2)Affidavit of the father filed 30 January 2024 (“the father’s trial affidavit”).
(3)Financial Statement filed 30 January 2024.
(4)Outline of Case Document filed 9 February 2024.
The ICL seeks to rely upon the following documents:
(1)Proposed Minute of Order dated 16 February 2024.
(2)Single Expert Family Report of Ms J dated 8 April 2022 (“the first report”).
(3)Specific Issues Report of Ms J dated 21 December 2023 (“the updated report”).
(4)Outline of Case Document filed 7 February 2024.
THE TREATEMENT OF THE EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Whilst the mother has alleged that the father perpetrated family violence during their relationship, the mother does not consider that the father presents as an unacceptable risk to the children. The mother concedes that it is in the best interests of the children that all that can be reasonably done to foster and maintain their relationship with the father.
Given that the parties are agreed on the future parenting arrangements with respect to X and Y, the narrow focus on Z is not whether she spends time with the father but whether she should be able to do so according to her wishes.
In those circumstances, s 69ZT(1) of the Act shall apply and evidence that would not be admitted as a consequence of the Evidence Act will be admissible but the weight that such evidence is to be given is a matter for the Court’s discretion.
EVIDENCE OF THE PARTIES
The mother
The mother gave her evidence in a frank and forthright manner. She was prepared to concede that it was not without some difficulty that she managed both the parenting of the three children and her full-time employment.
The mother was alive to the different personalities of each of the children and was asked to consider the extent to which, the children or each of them may benefit from one-on-one time.
The issue was raised in the first report undertaken by the report writer arising from X’s expressed opinion that Y was favoured over him on occasion.
The mother’s evidence demonstrated good insight as to the dynamics of the children and their interaction with each other.
To some extent, the issue was moot given that however desirable one-on-one time may be, the reality is that X and Y spend time with the father by direct arrangement with him.
The mother was questioned as to her allegations that during the course of the relationship the father had perpetrated family violence. It is uncertain but unlikely whether there is any credible allegation that the father was a risk to the children, however, during the course of the mother’s cross-examination, her counsel indicated that family violence had a relevance, albeit limited, in that it would go to the extent of time rather than whether time should occur.
In an exchange with counsel, I indicated that it was a difficult proposition to suggest that the father was unlikely to be a risk to the children over short periods of time but that the risk would increase if the time was extended.
As a counterfoil to the allegation that the father was aggressive in his conduct, under cross-examination the mother conceded that the children had expressed a concern that her language and at times interaction with them was aggressive. The mother conceded that what was behind the level of conflict between the children and the parties arose from divided loyalties and family dynamics.
It was accepted by the mother that Z reported to the report writer that she didn’t want to spend time with the father, at least in part, because of her perception that he favoured X and as such, she did not wish to compete.
Whilst the mother was steadfast in her position that Z should be free to make her own arrangements with her father, she believed that if Z was not the subject of an order requiring her to spend time with the father, she would gradually seek out his company.
The mother gave an example of a recent occasion when Z, without warning, decided that she would like to see her father and made the necessary arrangements. In summary, the mother’s evidence was that the more in control of her circumstances, the more likely it is that Z will develop a relationship of trust with the father.
The mother conceded that in 2021 the parties engaged in a text message conversation concerning an argument between the parties as to the payment of Child Support and other financial contributions by the father.
The mother agreed that the exchange was hostile and aggressive in content. Moreover, it exemplified the nature of the ongoing difficult relationship between the parties.
Whilst the questions were focused on parental responsibility, an issue now resolved between the parties, it is indicative of their ongoing inability to engage in appropriate and child focused communication.
The following exchange summarises the extent of the current communication between the parties:[2]
[2] Transcript dated 13 February 2024, p.134, lines 1 – 22.
[Counsel]:I accept that, ma’am, but the orders you’re seeking are that you and [the father] can agree to further time that the children spend with him?
[Mother]: Yes, those are the orders. Yes.
[Counsel]:So, in order to have that order be sensible, surely you and [the father] need to be able to engage in effective communication?
[Mother]:Yes, but in regards to time, if the children tell me they want to see their father, then they see their father.
[His Honour]: What are the methods by which you and [the father] communicate if you have to, or does it never happen, in other words, there is no circumstance where you have had to communicate directly with [the father]?
[Mother]:At the moment it would be I would send an email perhaps for an expense that has occurred and I literally just forward that receipt, or it’s a text message with something. I try very hard not to speak to [the father] directly.
[His Honour]: All right. So, you don’t speak to him directly?
[Mother]: No.
[His Honour]: But the only lines of communication are by way of text messaging and/or an email?
[Mother]: That’s correct, your Honour.
[His Honour]: And in respect of both of those methods, firstly, do you feel comfortable forwarding an email and a text message?
[Mother]:Yes, I usually just try to keep the communication very brief, but yes, I feel comfortable.
The mother agreed that whilst earlier communication between the parties had been at times abusive or offensive, of recent date it had become mundane and very much to the point.
The mother conceded that the lines of communication were open and whilst not friendly they were at an acceptable level where she felt confident that issues affecting the children could be properly exchanged and considered.
The mother sought an order that unless otherwise agreed, handovers between the father and a child or children was to occur at the Suburb N McDonald's Restaurant. Whilst this had occurred historically, of more recent date, handovers occurred at the mother’s home consequent upon the children sending the father a message and asking that he come and pick them up.
The mother agreed that on the last occasion that the father spent time with Z, he came to the mother’s home, Z exited the house, and got into his car.
Even though the mother has alleged that the father had perpetrated family violence and was unnecessarily aggressive in his interaction with her, she conceded that the conflict had settled to the extent where the father attending her home for the purpose of handover had worked well.
The father does not come into direct contact with the mother and upon arrival, he messages the children, and they go to him. The mother did not have a problem with handover from her home but was reluctant to attend the father’s home.
The event of Z spontaneously wanting to spend time with the father on becoming aware that Y had arranged to see him was promoted by the mother as an example of Z being able to make sensible decisions to see her father. The mother remained resolute in her concern that if Z was made to feel obligated to spend time with the father, then she may become resistant and oppositional.
A significant portion of the mother’s evidence was taken up with her concern as to the father’s use of alcohol particularly in the presence of the children.
For some considerable time, the father had been the subject of a Consent Order that required him to purchase a breathalyser unit calibrated to Australian standards, take a reading and send a picture of the result to the mother. If negative, then the children were able to spend time with the father but if not, no time would occur.
A reading other than negative would then trigger a further obligation on the father to undertake a CDT test.
The parties have ultimately agreed that there is no need for the extensive breath analysis testing to be undertaken in preference for an agreement that the father will not consume alcohol for 12 hours prior to the children coming into his care and during the time that they remain in his care.
I do not propose to interfere with the agreement of the parties.
The evidence of the extent of compliance by the father with the breath analysis testing regime is startling in its frequency, complexity and the rigidity by which anything other than a negative reading was employed.
The importance of the high level of compliance by the father in respect of breath analysis testing suggests a preparedness to comply with court orders.
Whilst not requiring a judicial determination, it is notable that the mother was more focused on the few occasions considered by her to be examples of the father’s non-compliance rather than the extensive history of strict compliance and of unremitting negative readings for blood alcohol.
I find that the mother was a witness of truth and did the very best she could to assist the Court in her evidence.
It is a feature of the father’s case that the mother is motivated to disrupt the children’s relationship with the father and if there is no fixed order in respect of Z, at best the mother will not promote her time with the father and at worst, she may actively dissuade the child from seeing him.
The mother’s evidence did not support a contention of alienation by her of the children’s relationship with the father. She presented as highly protective but ultimately and perhaps even with some level of reluctance, concedes that the children should have a relationship with their father but that they should find their own level.
She did not consider that Z should be treated differently from her siblings and if so, there is the risk of Z demonstrating oppositional behaviour to spending time with the father.
The father
The father was challenged as to the extent to which his work commitments involved interstate travel.
Of recent date, the father had spent an extended period in Perth. Whilst it is difficult to understand the relevance of the duties to be undertaken by the father as part of his employment, requirement to travel interstate was part of a standalone contract which at the time of trial had now concluded.
When challenged, the basis for the inquiry and the subsequent call for production of the father’s employment and work-related contracts, was promoted as a matter of credit.
It was suggested by counsel that the evidence given by the father that he had effectively concluded the contract and that future travel was now not required was potentially not truthful.
It is likely that the issue of the father’s employment and whether interstate travel represented a significant obligation was of little or no relevance to the narrow issues remaining for determination.
Ultimately, the father produced relevant documents and his evidence was found to be truthful. The inquiry proved to be unnecessary, but it did have the unfortunate consequence of highlighting the extent of mistrust that still exists between the parties.
The father was questioned as to the nature and level of communication with the mother extending back to 2017. I accept that there was a high level of historical acrimony however, I indicated to counsel that I could not see the relevance of the inquiry given that it was historical but also was, on the face of it, contrary to the credible evidence given by the mother that of late the parties had what might be described as a functional level of communication albeit by either text messaging or email.
The father was questioned about intolerant and aggressive text communication between the parties concerning a number of attempts to the father’s time with the children. In 2020, 2021 and for some part of 2022 the relationship between the parties was difficult and each were intolerant of the other’s position. A compromise was difficult and whilst the mother was steadfast in her insistence that the father comply with the orders in particular as to a breath analysis test prior to time spending commencing, the father was proscriptive and aggressive in his response.
At times, the hostility that existed between the parties had the unfortunate consequence of impacting the children and making their arrangements more difficult and less enjoyable. The children were well aware of the inability of the parties to reach agreement resulting in the extensive engagement of the children and the parties in counselling and therapeutic assistance.
To the extent that the evidence was directed to the view of the father that the mother had embarked upon a course of action seeking to alienate the children from their father, I find that whatever the father may believe on the topic, the evidence did not support his contention.
The mother’s concern as to the father’s consumption of alcohol was a particular feature of his cross-examination. Whilst the father has now conceded that he will refrain from the consumption of alcohol for a period of 12 hours prior to the children coming into his care and for the duration of their time with him, I consider that the agreed position of the parties is problematic.
The cross-examination of the father did not establish that the consumption of alcohol by either of the parties but in particular the father, was such that it presented as a significant risk to the children.
As considered, the evidence of the father’s compliance with a complex and onerous breath analysis testing regime prior to spending time with the children dispels any concern that the father is likely to place the children at risk and whilst not conceded by the mother, could be seen as the father doing all that he could to allay the mother’s concerns.
In any event, the father’s evidence allows a finding that whatever historical issues concerning his consumption of alcohol were apparent, there are different circumstances that are now in play.
It should not be overlooked that the children are all of an age where they are able to self-protect and importantly, report accurately on any adverse conduct of the father particularly, if likely to be caused by alcohol consumption.
The father was asked to consider an apparent complaint by X in a text message dated 4 March 2022. It appears that there was some verbal exchange between the father and X concerning the father referring to X as a “bad person” and that he was wasting time with descending into a robust argument between father and son.
The apparent forensic focus of the evidence was to demonstrate how the father might respond to the children when he interacts with them. More specifically, the evidence was relied upon to highlight that if the father entered into a verbal exchange with Z, she would not necessarily have the option of either not spending time with him or of being in his care and not being able to leave because of a fixed order.
The father denied the extent and nature of the alleged disagreement with X and it was apparent that but for it being raised by the mother, the father would not have known of it nor would he have been presented with text messages sent by X. The overarching concern of the Court is that the evidence sought to be relied upon spoke more about the ongoing mistrust between the parties and their inability to put their differences aside rather than to focus on the children’s interests and for the parties to move forward in a more respectful manner.
To the extent that it was put to the father that the exploration of his relationship with X, perhaps acrimonious at times, in some way highlights a perceived preferential relationship that the father has with X and Y as opposed to a lesser relationship with Z is not borne out on the father’s evidence. The evidence does not support the contention that the manner in which the relationship between the father, X and Y has flourished is an indicator that if Z was able to make her own arrangements with the father then her relationship with him would be likely to positively develop.
As an example of the level of acrimony that existed between the parties, counsel sought to tender documents setting out an email exchange. The following exchange with counsel would appear to summarise the mother’s position:[3]
[3] Transcript dated 15 February 2024 p. 384 line 5 – 38.
[His Honour]: I’m going to receive it, but I can indicate to you that I still do not understand the relevance of it, Ms Tabbernor.
[Counsel]: Thank you, your Honour. I’m on notice of that.
[His Honour]: And to the extent that it appears to be part of your client’s case that I am impressed as to the longstanding acrimony between the parties – that, I’m assuming, is what it goes to.
[Counsel]: It does. And the way in which they communicate.
[His Honour]: To the longstanding acrimony between the parties.
[Counsel]: Yes.
[His Honour]: That’s what it goes to?
[Counsel]: Yes.
[His Honour]: So it’s not related really to the birthday party at all. It’s related to the acrimony between the parties ‑ ‑ ‑
[Counsel]: Well ‑ ‑ ‑
[His Honour]: ‑ ‑ ‑ and their inherent inability to reach sensible and proper agreement extending from at least 2017 to the present.
[Counsel]:Certainly. And, your Honour, I would be submitting that it goes for much longer than from 2017. It was a feature of these parties’ relationship ‑ ‑ ‑
[His Honour]: I was trying to be generous, Ms Tabbernor.
[Counsel]: Yes.
The documents are comprised in exhibit “11”.
The father’s evidence was not dissimilar to that of the mother, indicative of parties who are litigation weary.
It is an unfortunate observation that the proceedings have extracted a damaging emotional and financial toll on the parties underpinned by the mother’s costs likely to exceed $600,000 with the father’s costs likely to exceed $300,000. The proceedings lend weight to the adage that ongoing and unrelenting litigation is never likely to be in the best interests of a child.
As considered, I do not consider that the father’s evidence provides support for his proposition that the mother seeks to undermine his relationship with the children. If anything, whilst the mother did not seek to mask her dislike and mistrust of the father, exhibit “1” in the proceedings, which sets out the chronology of time between the children and the father, would indicate that whatever her misgivings, the children’s relationship with the father appears to be developing.
On the limited aspect of the proceedings, I found the father’s evidence to be credible and of assistance.
The single expert report writer
Ms J (“the report writer”) was requested to conduct a family assessment to consider the benefit to the children of them having a meaningful relationship with the parties but in particular, the extent of time that the children should spend with the father.
The request for a family assessment resulted in interviews with the parties and the children including observations of the children’s interactions with each of the parties occurred in December 2021 and resulted in a report dated 8 April 2021 (“the first report”).
In anticipation of the proceedings, the report writer conducted further interviews with the parties and the children in October and November 2023 and considered the competing proposals of the parties as follows:[4]
3.[The mother] proposes that the children spend time with [the father] as per the current arrangement. [The mother] proposes that the children do not spend overnight time with [the father] and there be no special provisions in place for holidays. She is opposed to the children spending time with [the father] interstate or internationally.
4.[The father] proposes that there be no Orders for [X] and [Y] to spend time with him and that they spend time with him as per their wishes. [The father] proposes that [Z] spend time with him each alternate weekend and for two nights in the intervening week. He proposes that the children be permitted to spend time with him for school holidays, including interstate and international holidays.
[4] Specific Issues Report of Ms J dated 21 December 2023.
Following the specific issues assessment, a updated report was prepared and dated 21 December 2023 (“the updated report”).
The report writer has been accepted by the parties and the ICL as a single expert witness. The report writer holds the professional qualifications as a clinical and forensic psychiatrist and has been engaged in the preparation of single expert reports since 2019.
She has prepared both the first and the second reports in a manner consistent obligations imposed by Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Whilst the second report needs to be considered against the background as presented in the first report, the focus in 2021 and 2022 was very much in respect of the interim arrangements in circumstances where the mother had applied for an ADVO in late 2020, Consent Orders had been made on 7 January 2021 for the children to live with the mother and spend limited time with the father and that the father had consented to orders requiring the installation of an interlock alcohol device for his motor vehicle in accordance with orders made 22 July 2021.
The mother’s proposal at the time was that she have sole parental responsibility for the children but she did not set out any proposal for the children to spend time with their father. For his part, the father sought equal shared parental responsibility and that the children spend as close to equal time with him as was possible to achieve.
At the time of the first report, there was a consistent theme in the mother’s presentation that whilst she recognised there would be value to the children of maintaining a relationship with the father, she did not consider that they would be safe with him and that he lacked at the time, any insight into his behaviour.
A significant issue identified by the report writer was the mother’s concern for X’s presentation and potential for X to present with mental health issues. The mother observed that from time-to-time X would act aggressively and that on occasion he would punch himself in the head and threatened to jump out of an apartment window. The mother considered that X was distressed, and she believed that the father manipulated his relationship with X by withdrawing affection if X did not comply with direction.
The mother also highlighted the damaging relationship that existed between X and Y. The mother recognised that Y could be cruel to X but hoped that as she aged, she would be able to develop a more understanding and beneficial relationship with X.
The mother’s assessment of Z was that she was afraid of the father, had been adversely affected by the aggression in the household and that whilst Z would like a relationship with the father, she was not comfortable in his presence.
The father denied that he had ever been physically violent or aggressive towards the mother or the children. Moreover, he did not consider that he had physically disciplined the children nor was he verbally abusive.
His perception of the children was somewhat different to that as expressed by the mother. He considered his relationship with X to be affectionate, close and engaged. Whilst he recognised that X was quick to temper, he was confident in his ability to manage X’s outbursts.
The father reported to the report writer that he held concerns for Y’s mental health and anger management. He considered that Y had become averse to attending school which had the consequence of poor academic achievement.
The father recognised that his relationship with Y was strained although he considered it was as a result of the mother’s adverse influence rather than his inability to have an affectionate and closely attached relationship with her.
The father considered that he had a good relationship with Z, that she understands that he loves her but that she has divided loyalties and therefore is not able to develop her relationship with him because she considers that the mother is not supportive of that outcome.
The report writer observed that the children had a close and loving relationship with the mother but were aware and attuned to their mother’s emotional distress and anxiety particularly with regard to the father.
It is a significant observation that the mother’s upset and anxiety was prominent in her presentation to others. At the time of the first report, the report writer considered that it was important for the mother to focus and be supported in her capacity to parent the children but in particular to be able to respond to their individual needs and also to recognise that the children were likely to remain engaged with the father at some level.
Consideration was given to the extent to which the behavioural issues demonstrated by the children might be as a result of exposure to family violence or at the very least high conflict. In the first report, the presentation of the children is summarised as follows:
179.In terms of the effect of the above family violence in this family, the children have presented with interpersonal difficulties and have used conflict and aggression as a means of communication. They display emotion dysregulation, anxiety, and mood disturbance. Although it is difficult to know the exact cause of these behaviours, they are commonly associated with children who have been traumatised because of exposure to family violence and intractable family conflict. The children have received poor role modelling of management of conflict as they to (sic) learn to navigate their own internal models about interpersonal relationships and conflict management. Recovery in the children would be facilitated by prioritising a nurturing and loving environment that also includes safety, structure, limits, predictability, and modelling emotion regulation.
In considering the capacity of each parent to promote the psychological, emotional and educational wellbeing of the children, the report writer considered that the father lacked understanding of and capacity to provide for the needs of the children.
His conduct was likely to undermine the children’s relationship with the mother and when observed with the children, displayed aggressive conduct both to the report writer but also in reports from his apparent interaction with school staff.
The concern expressed by the report writer is adequately summarised in the first report as follows:-
227.It is important to consider the apparent impact of [the father]’s attitude (as stated by the children) on the children’s belief systems and values and how the children’s experience of his behaviour shape their world view. The risks to the children’s long term well being is that there is an increased likelihood of the children re-enacting their father’s behaviour with their own relationships when they reach adulthood and they may develop rigid beliefs because of the messages underlying their experience in the family. The children can also learn to associate angry feelings with violence and they may absorb the message that intimidation and aggression towards others is acceptable. Adolescent boys can also absorb the view that their mother is herself to blame for how she is treated and they in turn shift responsibility to her for their own conduct towards her. There is also a danger of undermining behaviours such as [the father] overruling the mother’s parenting decisions, ridiculing her in front of the children, and telling the children that she is an incompetent parent, which may lead to the children disrespecting their mother.
An important focus of the report writer was to consider the father’s allegations that the mother had sought to alienate the children from him. The report writer did not find any indicators in support of the father’s proposition. In particular, the report writer considered that the actions of the mother, notwithstanding her own anxiety and distress at having to deal with and negotiate with the father, had made appropriate attempts to foster the children’s relationship with the father and to facilitate time spending occurring.
In interview for the preparation of the second report, the mother’s opinion of the father did not seem to have changed significantly. She considered that it would not be in the children’s best interests to have fixed orders for the children to spend time with the father and in particular, she believed that the father had been grooming the children with bribes of gifts and special experiences. The mother viewed her perception of the father’s conduct as a further example of his capacity to manipulate the children and to undermine her parenting. A theme through the mother’s presentation to the report writer is that she did not consider the children should spend overnight in the father’s care because of her fears that they would be at risk either by reason of the father engaging the children in risky activities and/or because she believed that he consumed alcohol to excess.
When asked to consider the children’s presentation, the mother conceded that whilst X’s mental health had improved, he was now the priority focus of the father and was likely to accept a narrative that his father was right and that she had deliberately put in place barriers to X having a greater level of relationship with the father.
Of the three children, the mother was most concerned as to Y’s presentation. She considered that Y’s mental health had deteriorated and that she was now experiencing depression, school refusal and self-harm.
At the time of the assessment, Z had transitioned to a new school consequent upon her being the victim of bullying behaviour by others but that she had not yet settled into her new school environment.
The father reported to the report writer that he had completed the PPP Program, a Parenting Course through P Family Services and was attending upon regular family therapy.
It appears that notwithstanding the open hostility between the parties, by sheer dint of the age of the children X and Y was spending time with him as per their wishes which was being facilitated by the mother.
Whilst the father maintained misgivings about the conduct of the mother in her home and the resultant stress experienced by the children in navigating the conflict between the parties, it appears that an uneasy truce has occurred.
The remaining focus for the father is his concern that Z is too young to make a decision as to the time that she spends with each of the parties.
In interview, X engaged well with the report writer and advised that he has a good relationship with his father and generally, when he wants to spend time with him, arrangements are easily made with frequent communication.
For her part, Y was unsure as to whether she wants to spend overnight time with the father but did not rule out that it would occur albeit on her terms. Y had some insight as to her mental health challenges but broadly thought that she was progressing academically, that she had friends at school, had a loving relationship with her mother and acknowledged that she did not feel any opposition when she asked to see the father.
Z presented as a child with various phobias and, whilst prepared to spend time with the father intermittently, did not want structured time remembering that when it had occurred pursuant to earlier court orders, it was not to her liking.
As considered by the report writer in the first report, Z was concerned that her father may prioritise X and was reluctant to see her extended paternal family because she perceived that they had excluded her.
The report writer summarised the concern in respect of Z in the second report as follows:-
59.The major dispute relates to [Z’s] time with her father and the children’s overnight and holiday time with their father. In this matter, there is no confidence that the parents will be able to directly communicate and co parent in a constructive manner and to organise and agree on vacations. This ad hoc arrangement would be more challenging for [Z], given her young age, her anxiety, her fear, and her ambivalence in relationship with her father. [Z] would benefit from spending time with her father together with her sister as this would be more comfortable for her knowing that she has her older sister with her.
Anxious children appreciate predictability and routine and so for this reason, there are grounds to consider a different approach for [Z] whereby she has structured daytime only with her father. If this were to occur, [Y] or [X] could accompany [Z] to spend time with her father. I am of the view that [Z] is not ready to spend overnight time with her father, however consistent day time each alternate weekend would be of benefit to Z. If this were to occur, the child ([Y] or [X]) left with [the mother] on that day could spend quality time with [the mother] with the aim of spending quality one on one time with their mother.
In summary, the report writer focussed on the importance of some routine in place, or at least in part, regularise the arrangements for the children spending time with the father.
In evidence, the report writer reinforced her opinion as expressed in the second report. She considered that some limited orders that regulated the arrangements for Z to spend time with the father would likely have the advantage of making Z feel comfortable and at ease with her father, provide predictability as to the arrangements and remove some of the pressure that Z may feel where there may be an overlay of divided loyalties.
An important opinion expressed by the report writer was that despite the conflict between the parties and the differing attitudes of each of the children to the extent of time that they spend with the father, they nonetheless yearned for a relationship with him.
What cannot be ignored is the narrow compass of the issue to be determined. Z is 11 years of age and the report writer expressed a strong view that certainly by 13 years of age, if not before, Z should be able to spend time with her father in a manner not dissimilar to the arrangements in place for X and Y.
In broad terms, the report writer considered that the orders proposed by the mother, with the broad support of the ICL, would be an appropriate way forward for Z subject to the condition that the orders were not subject to the child’s wishes. She considered that if Z was overtly distressed in her father’s care, she should be able to return home to her mother without difficulty.
The evidence of the report writer was frank, forthright and impressive. The report writer demonstrated significant skill in her analysis of the presentation of each of the parties and the children and did not seek to provide an opinion beyond the limitations of her expertise.
The Court was assisted by the evidence of the report writer.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child's best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm;
(5)Have regard to additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties, in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act, are to be considered and if more weight is to be given to one or more of the matters raised, then it must be the subject of delineation and comment;
(7)Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA(2) which would rebut the presumption if a person or persons living with the child has engaged in:-
(a)abuse of the child or another child who, at the time, was a member of the parents' family, (or the other persons family); or
(b)family violence.
(8)Section 61DA(4) of the Act provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
As discussed, the parties have reached substantial agreement as set out in the Minute of Order sought by each of the parties.
The parties have agreed that the mother will have sole parental responsibility for the children. In exercising parental responsibility, the mother has agreed to inform the father at least 14 days prior to a significant decision being made and to consider any contrary or other view as may be expressed by the father.
I note the directions contained in s 60CC(2) of the Act. I have regard to the allegations of the mother that the father has engaged in family violence and that his conduct both in respect of the mother but also the children may be considered as coercive and controlling. I also note the father’s denial that he engaged in family violence and his assertion that at times the mother’s emotional lability has resulted in the children being placed in a position of divided loyalties.
I do not minimise the separate complaints of each of the parties, but each make a concession that it is important to the children to have a meaningful relationship with the other parent.
For some considerable period of time, X and Y have spent time with the father as per their wishes. Any time spent has been facilitated by the mother irrespective of her poor regard for the father. The focus remains on Z and the extent to which she should be permitted to negotiate her time spending arrangements with the father directly or be the subject of fixed orders albeit of short duration and without any obligation for any overnight time.
PARENTING CONSIDERATIONS
Meaningful relationship
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
As considered, the Court is required to focus on the practicality of each of the party’s proposal and to consider the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
The mother concedes that it is important for the children to maintain a relationship with the father. I accept that despite her misgivings, she has done all that is reasonable to facilitate the children’s wishes.
The evidence does not support a finding that the mother has embarked upon a course of conduct designed to alienate the children from the father. By reference to the chronology of time between the children and the father in the schedule comprising exhibit “1”, whilst Z has spent some hours with the father from time to time, most of the focus has been on the time X and Y spends with him.
There are signs that Z is becoming more dependent in her decision making and some confidence and comfort can be gained from the most recent occasion that spontaneously, Z decided that she would spend time with Y and the father.
The focus must therefore be upon orders that will underpin Z’s relationship with the father and hopefully remove at least some of the uncertainty Z may experience arising from the very nature of her understanding of the continuing conflict between her parents.
I do not consider that there is any evidence that supports Z being at any physical risk in the father’s care. The evidence of the report writer did not suggest that if Z was required to spend relatively short periods of time in the father’s care that it would in any way exacerbate, add to, or cause overt psychological or emotional distress.
Wishes of the child
Z has expressed a wish to determine her own arrangements to spend time with the father. The mother supports the position adopted by Z, whereas the father does not. The ICL falls in with the broad recommendation of the report writer namely, that at least for a time, Z should be considered in a different situation to her elder siblings and that some orders need to be put in place in order to underpin the relationship before it then soon moves to Z having the ability to determine the arrangements for spending time with her father.
I place weight on the wishes expressed by Z but it must be tempered by her age and inability to understand that a fixed order of limited duration and for a finite period has the advantage of removing other stressors that may be experienced by Z arising from the conflict between the parties, issues in respect of her elder siblings and the difficulty that arises where divided loyalties are a feature of the relationship.
The nature of the relationship with the parties
The relationship between the parties remains poor and as recorded by the report writer, the mother’s perception of the father has changed little. I am satisfied however that as recommended by the report writer in the first report, the father has undertaken appropriate parenting courses and has gained benefit from ongoing therapeutic intervention.
Despite the manner in which the mother’s case was presented, her evidence implicitly accepts that a workable arrangement is now in place as borne out by the time that the three children but in particular, X and Y, have spent with the father.
The likely effect of any change in the child’s circumstances
The orders promoted by the mother and the ICL are unlikely to cause a significant disruption to Z’s circumstances.
The mother proposes that there be some few hours on the first Saturday of each month for a six-month period and thereafter until Z turns 13 years of age each alternate Saturday from 9.00 am to 3.00 pm. Such an arrangement broadly falls in with the proposal of the ICL although the orders proposed by the mother are still subject to her wishes.
I appreciate that the orders sought by the father are much more extensive although he does concede that for a period of six weeks his time on alternate weekends should be limited to daytime only.
It is likely, that X will spend more time with the father including the opportunity for overnight time. Y is open to overnight time and is a matter for her to decide.
Whatever the arrangements might be, there is little likelihood of the proposed orders adversely affecting Z’s circumstances. It is however a possibility that X in particular and perhaps Y to a lesser degree may decide to spend more time with the father which has the potential to affect the dynamics in the mother’s household.
The report writer did consider that there may be an advantage to each of the parties being able to spend individual time with each of the children.
The advantages and disadvantages of the separate proposals of the parties
I am obliged to consider the advantages and disadvantages of the separate proposals of the parties. Again, the consideration in respect of Z is narrow and it is whether between now and the time she turns 13 years of age there should be fixed orders for her to spend time with the father or whether it should be subject to her wishes as currently occurs with her elder siblings.
I do not consider that there is any significant disadvantage to the orders as sought by the ICL namely, that Z’s time with the father be regulated according to fixed orders. It may be that Z will express some opposition and dislike however, the best evidence available, as given by the report writer, is that even if Z resists the orders, there is advantage to the child in potentially freeing her from the pressures of the conflict and she being placed in the invidious position of having to please both parties.
Are the orders sought by each of the parties practical?
I consider that there are no issues in respect of practicality. At present, the three children spend time with the father as they have requested. Their requests appear to have been readily facilitated by the mother. There is no evidence to suggest that the father would not be respectful of the wishes of any of the children should they want to return home to the mother at any time.
I am of the view that whilst the parties may not necessarily be prepared to accept their current position, there has been an unhappy truce reached between them.
CONCLUSION
The evidence readily supports a finding that it is in the best interests of the children, but in particular Z, that she spend time with the father pursuant to a fixed order.
I have given careful consideration to the orders proposed by the mother (albeit subject to Z’s wishes) and the orders proposed by the ICL that Z spend time with the father each alternate Saturday between 9.00 am and 4.00 pm together with other times as Z may request.
The orders sought by the father represent a bridge too far and are not supported by evidence presented during the proceedings in particular, the important evidence of the report writer.
I propose to fall in with the orders sought by the mother that there be a slow start to Z spending time with the father limited to one period per month but then after a period of three months, it should move to each alternate Saturday until Z attains the age of
1813 years.The mother’s orders contemplate that Z may seek more time with the father which will be facilitated.
The report writer considered that there should be a gradual transition to a more regular arrangement and as such, the orders sought by the mother, albeit subject to small adjustment, or at least within her broad contemplation.
The parties have also agreed that there should be recognition that certain specified special occasions that obligate the children to spend time with each of the parties.
Again, it must be emphasised that within a short period of time, it is likely that the current conflict will dissipate by sheer dint of the children becoming older.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 12 April 2024
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