WELLER & WELLER
[2017] FCCA 1790
•4 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WELLER & WELLER | [2017] FCCA 1790 |
| Catchwords: FAMILY LAW – Interim parenting – children aged 14 and 11 resistant to spending time with father – best interest considerations – orders made for children to spend time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CD, 60CG, 61C, 61DA, 65DAA |
| Cases cited: Allen v Allen (1984) 9 FamLR 440 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MR WELLER |
| Respondent: | MS WELLER |
| File Number: | SYC 1197 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 6 July 2017 |
| Date of Last Submission: | 6 July 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mitchell |
| Solicitors for the Applicant: | Johnsons Solicitors |
| Counsel for the Respondent: | Mr Duncombe |
| Solicitors for the Respondent: | Dignan & Hanrahan |
| Counsel for the Independent Children's Lawyer: | Ms Norris |
| Solicitors for the Independent Children's Lawyer: | Legal Aid New South Wales |
PENDING FURTHER ORDERS
That the parents have equal shared parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2006.
That the children live with the mother.
That the children spend time with the father commencing on the first Wednesday after the making of these orders and each alternate Wednesday thereafter, from after school to 7.30pm, the father to collect the children from their respective school at the commencement of such time and with the mother to collect the children from the father’s residence at the conclusion of such time.
That in addition to (3) above, X shall spend time with the father as agreed to in writing between the parents.
That in addition to (3) above and commencing on Saturday 30 September 2017 and each alternate Saturday thereafter, Y shall spend time with the father from 9am to 5pm, with the mother to deliver the child to the father’s residence at the commencement of the time and the father to deliver the child to the mother’s residence at the conclusion of the time.
Notwithstanding any other order the children shall spend time with the father:
(a)On Father’s Day from 10am to 4pm; and
(b)On 25 December 2017 from 3pm to 8pm.
with the mother to deliver the children to the father’s residence at the commencement of the time and the father to deliver the children to the mother’s residence at the conclusion of the time.
The parties are restrained by injunction from publishing or posting by any means to any web applications and accessible internet sites including but not restricted to social media such as Facebook and Instagram, any derogatory material or remarks in relation to the other party and/or the children and each parent to use their best endeavours to prevent any third party from doing so.
Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each parent shall use their best endeavours to prevent any third party from making critical comments about the other parent in the presence and/or hearing of the children.
Except as otherwise provided for in these orders the father is restrained by injunction from attending upon either of the children’s respective schools, sporting activity and/or any extra-curricular activities unless the mother provides written consent by text message.
That within 7 days the mother provide to the father full details of the children’s treating medical or other professionals.
That within 7 days the mother provide all such authorities as required to authorise the children’s treating medical or other professionals to provide to the father all requested information in relation to the children.
Pursuant to Section 13C (1) b of the Family Law Act1975 the parties shall between 1 November 2017 and 1 December 2017 attend mediation with an accredited Family Dispute Resolution Practitioner as agreed between the parties or failing agreement on the application of either party as nominated by the President or other office bearer of one of the following:
§LEADR;
§Australian Mediation Association;
§Australian Institute of Arbitrators and Mediators; and
§Law Society of NSW Mediation Unit.
The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the Family Dispute Resolution Practitioner not less than 7 days prior to the mediation.
Forthwith upon a Family Dispute Resolution Practitioner being agreed or nominated then each party shall:
(a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;
(b)Pay one half of all fees charged by the practitioner;
(c)Attend at such times, dates and places necessary to complete mediation.
List the matter for directions at 9.30am on 4 December 2017.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.
The Family Report to deal with the following matters:
(a)Any views expressed by the children the subject of parenting orders sought in this case, provided that the children shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the children with each of the children’s parents and with significant other persons.
(c)The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
(d)The likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the children have been living.
(e)The capacity of each parent, or another person, to provide for the needs of the children, including emotional and intellectual needs.
(f)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the children’s parents and any other characteristics of the children that the reporter thinks are relevant.
(g)Each parent’s attitude to the children and to the responsibilities of parenthood.
(h)Any family violence involving the children or a member of the children’s family.
(i)Such other issues as the Family Consultant considers relevant.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject children attend all appointments with the Family Consultant, as requested by the Family Consultant
The Family Consultant may inspect the Court file.
Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory Legal Aid Authority; and
(d)A convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
List the matter on a date to be advised following release of the Family Report.
IT IS NOTED that publication of this judgment under the pseudonym Weller & Weller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYC 1197 of 2016
| MR WELLER |
Applicant
And
| MS WELLER |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant father commenced these proceedings on 2 March 2016, in the Family Court of Australia, seeking inter alia, interim parenting orders in respect of the parties’ two children, X born on (omitted) 2003 now 14 years old and Y born on (omitted) 2006, now almost 11 and a half years old. Neither X nor Y have spent any meaningful time with the father since January 2016.
While it is true that the matter has been before the Courts for some time, there have been few Court events, albeit some months apart:
a)The matter was initially before a Registrar of the Family Court of Australia on 30 May 2016. The father was self-represented. Only procedural orders were made on that occasion, in essence transferring the matter to the Federal Circuit Court of Australia.
b)On 8 November 2016, the matter came for the first time before Judge Henderson of this Court. The only order for time made on that date was for the children to see their father on Christmas Day. Her Honour also made a number of other orders, including the appointment of an Independent Children’s Lawyer, ordering a Child Dispute Conference and transferring the matter to the Parramatta Registry. The Court noted on that occasion that the children have expressed views of not wishing to spend time with the father.
c)The matter first came before me on 6 March 2017, in the duty list. This was the first time the Independent Children’s Lawyer appeared. The Court on this occasion made orders for a Child Inclusive Conference, for the parents to file Affidavits in support of any interim orders and the matter was down for interim hearing. The parties reached agreement on this occasion, which the Court noted, for the children to spend time with the father on Saturdays at McDonald's (omitted) for a period of one to two hours commencing at 11am, with such time to be supervised by Ms S. The mother was to notify the father via text message prior to such time occurring to confirm that the time will be taking place.
d)The interim hearing occurred on 6 July 2017.
The father is anxious to spend time with the children and presses the Court for orders to do so. The children on the other hand, are by all accounts, very resistant to spending time with him. X, during the Child Inclusive Conference on 27 June 2017 said to the Family Consultant conducting the conference that her and Y have refused to spend time at their father’s home after he made them stand out in the rain with all the Christmas presents he had given them since he deemed that they were ungrateful.
Whatever might have been the now historical facts leading up to the children ceasing spending time with the father, the reality of the situation is that they have said to their mother and to the Family Consultant that do not want to spend time with him. Of course, it is not for children to decide where they live and if they spend time with the parent with whom they do not live. This is a matter for the parents, and if the parents cannot decide or agree, and if there is an appropriate application before the Court, then it is a matter for the Court. The Court of course is bound to follow the legislative pathway in determining these issues, same being the subject of long standing authority. The views expressed by the children are but one factor the Court is to consider.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the children having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interests and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
Further Full Court authority has expanded upon what was said in Goode & Goode. In Marvel & Marvel[9] the Full Court made the following obiter comments:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing….
[9] [2010] FamCAFC 101 at [120]
In Keats & Keats, the Full Court held in respect of the conduct of interim proceedings:[10]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[10] [2016] FamCAFC 156 at [9]
A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.
The High Court[11] has recently stated:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (references omitted)
[11] Bondelmonte v Bondelmonte and Anor [2017] HCA 8 at [32]
Issues in Dispute
The main issue in dispute is what time, if any, the children ought to spend with the father.
Associated with this main issue, is whether there ought to be any orders for therapeutic intervention and whether any time between the father and the children ought to be supervised.
Competing Proposals
In summary, the father’s application to the Court is for there to be an order for equal shared parental responsibility, for the children to live with the mother and for the children to spend time with the father each alternate weekend, half school holidays and on significant occasions.
In summary, the mother’s application to the Court is for there to be an order for equal shared parental responsibility, for the children to live with the mother, for the children to spend time with the father in accordance with their wishes, for the father to communicate with the children as initiated by the children and for the father to be restrained from attending the children’s sports.
The Independent Children’s Lawyer’s positon is that the mother should have sole parental responsibility, that the children live with the mother and spend time with the father in accordance with their wishes. The Independent Children’s Lawyer also sought restraints in relation to both parents in respect of making derogatory remarks about the other parent, including on social media and that the father be restrained from attending the children’s schools, sports and extracurricular activities unless the mother provides consent to same.
Relevant Considerations
Uncontested Relevant Facts
The mother was born on (omitted) 1971.
The father was born on (omitted) 1978.
The parties commenced cohabitation in or about mid-2002.
The first child of the parties, X was born on (omitted) 2003.
The parties married on (omitted) 2004.
The second child of the parties, Y, was born on (omitted) 2006.
The parties separated on 10 June 2014.
Between June 2014 and January 2016, there was an informal agreement between the parties for the children to live with the mother and spend time with the father each alternate weekend and on special occasions.
The children commenced attending upon Ms E, Psychologist in late June 2015.
An incident occurred on 4 January 2016 after which, except on a few limited occasions and for very limited periods, the children have not spent time with the father.
Other Relevant Evidence
The parents and the children participated in ‘Reunification Therapy’ with (omitted) Psychology.[12] There were a total of five appointments, as well as numerous communications by telephone and email, including communication with the children’s counsellor, Ms E.
[12] Exhibit 1
Out of the five appointments, there was only a single session between the children and the father together, and the children attended one other earlier session together with the mother. The purpose of the reunification therapy was discussed with the children on the occasion the children came with the mother and the children brainstormed in how they could repair their relationship with the father, including:
“more compromise and discussion relating to activities they would do together, a rule regarding not swearing and that Mr Weller would attempt ‘not to get so angry’ and that both Ms Weller and Mr Weller would agree not to say negative things about the other parent in the presence of the children.”
Subsequently a session was held with the father where he was passed on information regarding the children’s feelings as well as their concerns regarding contact with the father.
Prior to the session between the children and the father, the mother telephoned (omitted) Psychology and indicated that the children were ‘feeling scared’ regarding their upcoming appointment with the father. The mother requested that the children be accompanied by a support person, which was said to be unnecessary and unhelpful by the therapist, however they ultimately were accompanied.
At the joint session between the children and the father on 18 July 2016, the children came with pre-prepared questions. The mother again told the therapist that the children were reluctant to attend the session.
During the session with the father, the children discussed a range of strategies to resolve some of the issues addressed in their pre-prepared questions. For example that the father “would not buy clothing for X but instead would go shopping with her and let her choose things that she liked”. There was also discussion of some of the things that the children did not like about the father’s behaviour and development of practical solutions to some of the children’s concerns. The children and the father agreed on a range of things that they would each try and work on to improve their relationship. A “Contract” was drawn up which listed the following matters:
1. No swearing
2. No comparisons to (omitted)
3. Dad to go shopping with X or X to buy things online and send that link
4. (omitted) to attend with dad not Nanna H
5. No bum touching
6. No calling Y fat
7. Try to reply to msg/call Dad
8. No rushing
9. ‘security’ comment.
In the Court’s view, it does not appear that the issues raised by the children can in total be a sound objective basis for their refusal to spend time with the father. While the Court appreciates that children see things differently to adults, and that in children’s eyes some things may appear more important than they would in an adult’s eyes, the Court’s role is to consider all of the available evidence and make an assessment based on the evidence.
The mother’s two Affidavits relied upon at the interim hearing do not say a single positive thing about the father, his parenting or the children’s relationship with him. Interestingly there is very little by way of background in the mother’s first Affidavit except to say that the mother was the children’s primary carer, that the father engaged in full-time employment and that he would generally be absent from the residence from 6am to 6pm five days per week. The Affidavit then goes on to say “I received assistance in respect to the care of the children from the applicant father at those times when he was not engaged in employment.”
Following the parties’ appearance before the Court on 6 March 2017, there as (as noted earlier) an agreement reached between the parties for the children to spend time with the father on Saturdays from 11am for a period of one to two hours. This time was to be supervised by Ms S, a friend of the mother’s. The mother was to notify the father via text message in advance to confirm that time would be occurring. Between that agreement being reached and the interim hearing, a period of three months, there were only two such occasions that the children spent time with the father.
On the father’s evidence the mother was making it difficult for the children to spend time with the father. On the evidence in the mother’s case, the father was embarrassing. The Court is not able to make findings about these matters, but it weighs heavily upon the Court’s deliberations that time between the father and the children only occurred on such a limited basis and on all accounts was not a positive experience for the children. There may be a number of reasons for this, but to speculate about such matters is not something which is permissible. However, the Court is strongly of the view that the ‘fault’ lies neither solely with the mother nor the father.
Best Interest Considerations
The views of the children in this matter loom large. While the children’s views are important and are not to be ignored, they are not conclusive. It could not be otherwise.
The Full Court of the Family Court in R v R[13] has said:
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
[13] [2000] FamCA 43; 25 Fam LR 712 at 724
The legislation leaves a wide discretion for the Court in respect of matters which are relevant to the weight it gives to those views. Relevant factors going to weight have included:
a)Child’s age and level of maturity;[14]
b)The strength of the views, and the length of time held by the child[15];
c)How the child’s views were formed, for example whether they are well thought through, whether they are as a result of pressure on the child and whether they reflect the child’s own choice[16]; and
d)The likely consequences of an order contrary to the children's views.
[14] See Allen v Allen (1984) 9 Fam LR 440; FLC 91-531
[15] See In the Marriage of Wotherspoon and Cooper (1981) 7 Fam LR 71; FLC 91–029; In the Marriage of Cartlege (1977) 3 Fam LR 11,339; FLC 90-254
[16] See R v R (Children’s Wishes) [2002] FamCA 383, FCL 93-108
The Court is in the exercise of its discretion bound by the relevant principles an enunciated in various authorities, including recent High Court authority in Bondelmonte[17] their Honours held:
[34] The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.
[35] The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.
[17] Bondelmonte v Bondelmonteand Anor [2017] HCA 8 at [34] – [35]
Section 60CD deals with how the Court informs itself of views expressed by a child.[18] The Court had before it evidence of the children’s views, not only by way of Child Inclusive Conference Memorandum to the Court dated 27 June 2017, but also by way of evidence in the mother’s Affidavit.
[18] S60CD provides that The court may inform itself of views expressed by a child:
It is important to reproduce some of the matters noted in the memorandum:
X said that she and Y would cry every Thursday and Friday before they had to go to their father’s and that Ms Weller would “force them to go”, saying “I’ll see you on Sunday.” She said they refused to spend time at their father’s home after he made them stand out in the rain with all the Christmas presents he had given them since he deemed that they were ungrateful.
…
X mentioned a number of times that she was “scared of Mr Weller”.
When X was asked what she was scared about, she became quite distressed and said that “he has threatened to take us away and we won’t see Mum ever again.” She said that she thought he was serious and he said that he would “take us overseas”.
X said she was also scared if Mr Weller comes to her (hobby omitted) matches since her friends will walk away from her because they are “all worried he’ll abuse them again” and that he still yells during the match “and it’s embarrassing”.
…
When X was asked if there was anything she wanted the Judge to know she said “I don’t want anything to do with him or to be around him and if they make me I will run away”. She also said that she did not want Y to have to go because “I help Y go through this and I don’t want him to have to do it alone – he’s as scared as I am.”
…
Y said that he sees his father when he “turns up” to (hobby omitted) games where he “embarrasses me and tries to talk to me”. Y said he gets nervous at these times because “he’s done stuff before – he caused a scene. He sometimes says things really loudly to make himself look like a really good father.”
Y said that Mr Weller once said he would “run away with us” and that he is still scared that he might do this…
…
Y talked about good times they had with Mr Weller… however he said “I just don’t want to go with him.”…
Both X and Y stated that they did not want to spend time with Mr Weller. The alleged incidents they recounted, referred mostly to events which occurred some time ago, however the children said that they remembered them well. Both expressed unease about him coming to their sporting fixates and, in the case of X, she could not think of anything that Mr Weller could do to make her feel differently about seeing him.
The recommendation in the memorandum was as follows:
If the Court considers that either or both children should spend time with Mr Weller, it may be helpful if this were to occur in a professionally supervised setting.
The mother submits that because of the children’s ages, their views should be afforded significant weight. Enmeshed in this, is the argument that in this instance the protection of the children from harm outweighs the benefit to the children of having a relationship with the father.
The children’s relationship with the mother is a relationship that is a strong one. The children appear to be reliant on their mother to meet their daily physical and emotional needs. The mother’s ability to do so is a matter which the Court is not able to make findings about, except in so far that it appears there is no evidence which would suggest that she is not meeting their physical needs.
The children’s relationship with the father is the subject of some controversy. The father submits to the Court that post separation and until January 2016 he enjoyed a close and loving relationship with the children and that it is the mother who is responsible for the state of affairs at present. The father appears to place the entirety of the responsibility for the state of his relationship with the children on the mother’s shoulders, and he states that the mother “has been so quick to take them away from me completely.” The father states that since separation, the mother “has not facilitated or encouraged the children to have a relationship with me but has also encouraged them to lie and be secretive about events they are involved in.” The apparent lack of acceptance of any responsibility for the state of affairs at present by the father is concerning to the Court.
The parties had, until January 2016, taken reasonable steps for the children to spend time with the father. After January 2016 it appears to the Court that the mother has simply paid lip service to the children’s relationship with the father. Whether this is in fact so will be a finding for another day, but the mother’s evidence seems to be that she didn’t agree with the way the father parented, including not doing with the children what they wanted to do and embarrassing them in front of their friends.
The father on the other hand seems to minimise the distress which the children are reported to suffer at his behaviour at times, which can be viewed as insensitive. The father seems to be of the mind that things should be done his way as he is the parent, rather than being “told what he should and shouldn’t do by his 13 year old child”. The father does not seem to understand that things which he views as having “really no substance” might indeed be very substantial and important to the children. It is little wonder that there is such a disjoint between father and the children.
However, the father’s apparent lack of sensitivity towards the children’s needs in the view of the Court, in the factual matrix of this case, is not sufficient to deny the children a relationship with the father. Likewise, it is not fair to the children to place the onus on them on having to decide when and if they are going to spend time with the father.
Having in place orders for time between the children and the father will have both a practical and an emotional effect on them. It is a change in circumstances which will have the effect of seeing them travel approximately 20km if they were to spend time at their father’s home and it may also mean that the father will attend at certain of their extracurricular activities if they are on the days and times when the children are spending time with the father.
The Court’s Determination in respect of time
The Court has carefully considered the children’s views. On balance, those views will not be afforded the weight submitted by the mother. Indeed, the Court is very careful to weigh up those views in light of all of the circumstances. It is difficult to understand on what objective basis those views have been formed.
Children, even those of teenage years, need to be told no. [19]
[19] This is not a licence for the father to simply impress his will upon the children.
We live in a society bound by rules. We live in a society bound by norms of behaviour. For example, children are expected to go to school when they are of school age. It is the parents who have the responsibility of ensuring that children do so. There are legal consequences if children do not attend school.
Schools have rules. Children are expected, for the most part, to behave respectfully in class and to do their school work, they are also expected to do any homework which has been assigned to them. There are social norms of behaviour in their friendship groups, there are social norms of behaviour within their households, extended families, neighbourhoods and society in general. Society places boundaries on people’s behaviours. Children are the subject to these norms of behaviour, albeit not as much is expected of them as is expected of those with greater levels of maturity. As children grow older they learn to reason, to act responsibly and to look outside of their own selves.
In parenting cases orders are made for children, for the most part, to live with one of their parents, and to spend time with the parent they do not live with. Depending on the individual facts and circumstances, orders are made which the Court, in its discretion exercised in accordance with the law, considers are in the child’s best interest. Once orders are made, parties are expected to comply with them. Children are seldom, if ever, parties to parenting proceedings, although they do have standing to apply for parenting orders. Children are sometimes represented by Independent Children’s Lawyers who have certain duties and obligations in accordance with the relevant law. Sometimes, parenting orders are made without such independent representation of children. But always, those bound by the orders must comply with the orders, otherwise, there are consequences.
If a parent was to allow a child to choose when and if that child would go to school, this is parental behaviour which would not only be outside of acceptable behaviour but it would also be a breach of the law. Such behaviour would have consequences for not only the child but also for the parent. It would not matter whether the child said “I don’t want to go to school. I will run away if I have to go to school.” The child is still expected to go to school, and the parent is still expected to ensure that child goes to school. Sure, there might be some intervention from the school if and when the parent and the child speak to the school about any difficulties the child might be having and there might be some measure put in place to assist the child, but that measure would not be “well, if you don’t want to go to school, that’s ok, I won’t make you go to school.” Why then is it any different with spending time with a parent pursuant to orders? Why is there, absent any expert evidence, the submission made to the effect, “the child is 14 no-one can force the child to spend time with a parent if they don’t want to”. It’s not a matter of “forcing” it is a matter of saying to the child, this is a Court order, it is a legal obligation, it is a matter which must be complied with. The same as “forcing” a child to go to school.
In this unfortunate matter, the children have not been spending time with their father for over 18 months.
There was an event which occurred in January 2016, which it was submitted on behalf of the mother was the culmination of similar behaviour by the father.
The father commenced proceedings very quickly. Unfortunately, for a number of varied reasons the matter was heard for the first time on an interim basis in July 2017. There were interim orders made by consent in the meantime, but the father had never put his case forward in a contested interim hearing until a few days ago. It is most unfortunate.
The Independent Children’s Lawyer submits to the Court that because of the matters raised in the Child Inclusive Memorandum there should be an order that the children spend time with the father in accordance with their wishes. In reality, given the children’s “wishes” to date (as expressed by the mother and contained in the Child Inclusive Memorandum) this will mean that the children will not spend any time with their father. To date they have had the prerogative (given to them by their mother) to choose. They have not chosen wisely to date. They have been empowered through the litigation process, which involved some therapeutic intervention, to believe that they are the ones who get to decide whether they spend time with the father. This is a parental decision, and if the parents cannot come to an agreement (as is the case here) and they each apply to the Court for orders, then it is a judicial decision.
The evidence in both parties’ cases was lacking in relevant matters which would have assisted the Court. For example, the father’s Affidavits were full of general broad brush statements and opinions but backed by little actual evidence of fact.
The mother’s Affidavits were focused on the negative, particularly the mother’s views of the father’s lack of parenting capacity and examples of what she considered to be poor behaviour by the father. There was no evidence of the mother speaking with the children about the father in a positive manner at all, or any evidence of the mother’s conversations with the children about ways in which their father’s behaviour could be explained in a positive albeit misguided, light.
Furthermore, the chronology prepared on behalf of the mother as contained in her Case Outline document, which formed the basis of the submissions made in the mother’s case, is peppered with references that the children have been ‘distressed’ after seeing the father or that the father has caused the children ‘distress’. The chronology is indicative of the mother’s attitude towards the father.
Such lack of evidence in the parties’ cases invites the Court to make conclusions about the parents’ lack of capacity to provide for the children’s emotional needs and their negative attitudes towards the responsibilities of parenthood. In the mother’s case, the evidence as contained in her Affidavits, potentially paints a picture of a parent who is not genuine in fostering a relationship between the children and the other parent. Of course, these are matters which the Court does not make any findings about at this stage of the proceedings due to the evidence being untested.
However, the Court is charged with the task of assessing what is in these children’s best interests, and it does this by, in part, turning its mind to weighing the probabilities of competing claims and the likely impact on children in the event that controversial assertions are acted upon or rejected. This includes the possibility of these children continuing along a trajectory of a fractured relationship with their father which may well be on its way to being beyond repair, if it is not already.
The time which the orders provide for is limited, particularly so in the first instance. It will ensure that the children are spending some time with their father, during which the Court expects the father will be on his best behaviour. The orders also take the burden off the children in having to decide and in giving them a choice about spending time with the father. The various restraints which will be put in place provide further safeguards.
The children will initially be spending time together with the father, they will not be separated. The order for Y to spend time with the father in addition to the time that the children are to spend together with the father and for X to spend time with the father in accordance with the parties’ agreement, may practically mean that each of the children will spend time without their sibling with the father.
While there is potentially a risk to the children in that they have reported being afraid of their father[20], the risk is minimised by the fact that the time is limited and that the children will remain living with the mother – a person to whom in the past they have had no difficulty in communicating any distress they have been in.
[20] Such risk not being a risk of the father physically harming the children or removing them from the mother’s care as the children have said, but rather it is a risk to their emotional wellbeing.
The Court recognises that there is a risk to the children in being ‘forced’ to spend time with the father against their expressed wishes, however, the Court does not consider such a risk to be unacceptable. Rather, the risk of losing their relationship with the father in total is the greater risk, and the loss to the children in the future, if this were to occur, has the potential to be enormous and as such is unacceptable.
The Court has already noted the recommendations in the Child Inclusive Conference Memorandum, and such opinion has been considered by the Court in coming to its considerations about what is in the children’s best interests.
While supervised time might have the benefit of making the children more comfortable, the supervised time to date as agreed has not been very successful. Further supervision of the children’s time with the father might send a message to the children that the Court considers the father is too much of a risk to the children, even with there being no such finding. In the Court’s view this would be detrimental to the children’s best interests and their future relationship with the father.
Submissions were made about family therapy. However, no firm proposal for such therapy was put forward. The parties and the children had already engaged in family therapy and they understand the process. They can engage in the process again if they consider it will assist the children, which indeed it might. The Court was however, not persuaded that an order to this effect ought be made.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[21] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.
[21] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[22] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence. It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[23]
[22] s61DA(3)
[23] s61DB
The mother seeks an order for equal shared parental responsibility. The father seeks an order for equal shared parental responsibility. The Independent Children’s Lawyer submits to the Court that there should be an order for the mother to have sole parental responsibility, although she did not wish to be heard against an order for equal shared parental responsibility.
On all of the evidence before it, the Court finds that the presumption of equal shared parental responsibility has not been rebutted.
In the Court’s view, there will be a difficult road ahead for the parties as they continue to live their lives as separated parents of their two children due to their lack of recognition of their own role in what has come to pass for their children. The difficult road ahead which the Court foresees does not however result in a conclusion that it will be impossible for these parties to co-parent. The Court is more concerned that by making an order for sole parental responsibility as submitted by the Independent Children’s Lawyer, the current state of affairs will be solidified and the road to shared parenting will be completely obliterated.
An order for equal shared parental responsibility will be made. Upon the making of such an order, the Court is obliged to consider equal time and significant and substantial time. In light of the reasons above, neither equal nor significant and substantial time is in the children’s best interest at present.
For all of the reasons above, orders as at the forefront of these Reasons are made.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 4 August 2017
(a) by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b) by making an order under section 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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Appeal
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