Wellington & Wellington
[2024] FedCFamC1F 863
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wellington & Wellington [2024] FedCFamC1F 863
File number(s): NCC 2095 of 2024 Judgment of: ALTOBELLI J Date of judgment: 5 December 2024 Catchwords: FAMILY LAW – PARENTING – Where the father seeks spend time with arrangements for both children – Where the parties reach a consent position for one child – Where the other child expresses a strong view to spend no time with the father – Where consent orders are made for decision making, family therapy, spend time with arrangements for one child, interstate travel and restraints – Where the Court orders time for one child in accordance with his wishes and telephone time only. Legislation: Family Law Act 1975 (Cth) s 60CC(2), s 68B Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 5 December 2024 Solicitor for the Applicant: Dr Owoeye of Layebs Law Counsel for the Respondent: Mr Weightman Solicitor for the Respondent: Delaney Roberts Family Lawyers Solicitor for the Independent Children's Lawyer: Fielden & Associates - Family and Relationship Lawyers ORDERS
NCC 2095 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WELLINGTON
Applicant
AND: MS WELLINGTON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS BY CONSENT PENDING FURTHER ORDER THAT:
Live with
1.The children are to live with the Respondent mother ("the mother").
Family therapy
2.The parties are to do all acts and things to organise family therapy for the Applicant father ("the father") and the child Y born in 2009 ("Y") and for the purpose of this order:
(a)Within seven days from the date of these orders, the father is to propose a panel of three suitably qualified family therapists to the mother;
(b)Within a further seven days, the mother is to select one family therapist and advise the father in writing of her nomination;
(c)If the mother fails to nominate a family therapist in the time limit specified in the above order, the father is to select a family therapist and complete all intake documentation and arrange the first available appointment to commence family therapy. Y and the father are to engage in family therapy; and
(d)The appointed family therapist may elect to involve the mother in the family therapy.
3.The mother is to do all things to encourage Y to attend all appointments with the family therapist.
4.The father is responsible for scheduling such family therapy appointments.
5.The father is to provide the mother with not less than 10 days' notice of any appointments made for the family therapy sessions.
6.The parties are to do all things necessary to follow the recommendations of the family therapist including any recommendations regarding ongoing sessions.
7.The father is solely responsible for the costs of the family therapy.
Z
8.The child Z ("Z") is to spend time with the father as follows:
(a)During school terms, one weekend per school term commencing at 3:00 pm on Friday until 6:00 pm on the immediately following Sunday, with such time to be arranged by the father nominating a weekend to the mother at least six weeks in advance;
(b)During term 1 school holidays:
(i)In all odd-numbered years, from the conclusion of school or 3:00 pm on the last day of required school attendance until 6:00 pm on the first day of the mid-point of the school holiday period, including Good Friday, Easter Saturday, Easter Sunday, and Easter Monday; and
(ii)In all even-numbered years, from 6:00 pm on the first day of the mid-point of the school holiday period until the commencement of school or 9:00 am on the first day of required school attendance.
(c)During term 3 school holidays, from the conclusion of school or 3:00 pm on the last day of required school attendance until the commencement of school or 9:00 am on the first day of required school attendance; and
(d)During term 4 school holidays:
(i)In all odd-numbered years, from the conclusion of school or 3:00 pm on the last day of required school attendance until 9:00 am on 6 January, including Christmas Eve, Christmas Day, Boxing Day, New Year's Eve and New Year's Day; and
(ii)In all even-numbered years, from 9:00 am on 6 January until the commencement of school or 9:00 am on the first day of required school attendance.
9.For the purpose of implementing Order 8:
(a)Where changeover occurs at the commencement or conclusion of school, changeover is to occur at school;
(b)Where changeover does not occur at the commencement or conclusion of school, changeover is to occur at the Coles car park at the commencement and conclusion of time; and
(c)The parties are to follow the NSW school holidays dates for the eastern division published on the NSW Government website.
10.Each of the parties are at liberty to communicate with Z via telephone or FaceTime call while he is not in their care as agreed between the parties in writing but failing agreement as follows:
(a)During school terms:
(i)While Z is in the mother's care, the father may call and speak with Z between 5:00 pm and 5:30 pm on Thursdays and Sundays; and,
(ii)While Z is in the father's care, the mother may call and speak with Z between 5:00 pm and 5:30 pm on Saturdays.
(b)During school holidays, the party who does not have care of Z may call and speak with Z between 5:00 pm and 5:30 pm on Mondays and Thursdays; and
(c)The parties shall facilitate Z calling and speaking with the other party in accordance with his wishes.
Travel orders
11.Each party is permitted to travel interstate with Z provided any such travel does not impact on the time Z spends with the other party pursuant to these orders, unless agreed otherwise in writing between the parties, and the party who is intending to travel with Z provides the other party with no less than 10 days written notice of the intended dates of travel and location of travel.
12.Within 14 days of a written request from one party, both parties are to do all acts and things and sign all documents necessary for the children to be issued with a valid New Zealand passport and the parties shall each pay one half of the fees associated with such passport applications or renewals.
Other
13.Within 24 hours of the date of these orders, each party is to notify the other of their current residential address and the parties are to advise each other or any changes to same within 24 hours of such change occurring.
14.Each party shall promptly notify the other if Y and/or Z ("the children") are involved in an accident or medical emergency requiring attendance at hospital or are diagnosed as suffering from a serious illness.
15.Each party shall be entitled to obtain directly from any education, health, welfare or other professional attended by the children, copies of any reports, notices or other verbal or written advice affecting their health and welfare.
16.Each party is authorised to obtain from the children's school all school reports, school curricular, school notices, school invitations and school correspondence and to attend parent/teacher interviews or other activities to which parents are invited.
17.Each party is at liberty to attend all sporting and extracurricular events in which the children are involved and all school events to which parents are invited such as assemblies and sports carnivals.
18.Each party must do all acts and things to facilitate the children attending the extracurricular activities they are enrolled in.
19.The parties will keep themselves informed of any upcoming athletics events for Z by looking up the details of any upcoming events on the NSW Athletics Website for the Suburb B Athletics club events, and should Z have an event occurring while in their care, each party shall do all things necessary to ensure that Z attends the event.
Restraints
20.Each of the parties is restrained from:
(a)Denigrating the other party or members of their family or friends to or in the presence, hearing or observation of the children and each party shall use their best endeavours to ensure that no third party does so and shall promptly remove the children from any environment when the same is occurring;
(b)Discussing any aspects of the parenting dispute between the parties, including any aspect of these proceedings, to or in the presence, hearing or observation of the children; and
(c)Using physical punishment to discipline the children.
21.The parties communicate exclusively on the App "Appclose".
THE COURT FURTHER ORDERS THAT:
22.The matter be listed for mention on 3 April 2024 at 9am, for the purpose of reviewing the progress of the implementation of these orders and to ascertain, if possible, how family therapy is progressing.
23.Neither of the parents are required to participate in joint family therapy with each other unless they consent to same in writing.
24.Y is to spend time and communicate with the Applicant father in accordance with his wishes.
25.The mother is to do all acts and things necessary to facilitate and encourage Y to communicate with the father by telephone or FaceTime at any reasonable time that Y and the father agree, but failing agreement, from 5:00 pm to 5.30 pm on Thursdays and Sundays.
26.Leave is granted to the Independent Children's Lawyer to apply to relist the proceedings on seven days' notice in the event that further orders or directions are required, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
THE COURT NOES THAT:
27.The Court declined to address the issues pertaining to passports and international travel at this juncture. These issues will be more conveniently raised and determined once the family therapy as between the father and Y has commenced.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Wellington & Wellington has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
In this matter, I provide the following ex tempore reasons, and make orders in accordance with these reasons. This case is about two children: Y, born in 2009, who is 15 (“Y”), and Z, born in 2014, who is 10 (“Z”) (collectively “the children”). The applicant is the father (“the father”) and he lives in Melbourne. The respondent is the mother (“the mother”) and she lives in City C.
The children are represented by an experienced Independent Children’s Lawyer, who has not yet met with the boys, but I anticipate will do so in the near future. The children were born in New Zealand and moved to Australia in 2019. The mother and the father separated in 2022.
The matter first came before the Court in July 2024, when orders were made restraining the mother from travelling with the children to Country D. The present application seeks to deal with orders for the parenting of the children, including where they are to live, and the spend time with and communication arrangement for them, in relation to the father.
The material before the Court is the material relied on by the parties and referred to in their respective Outline of Case Documents. The competing proposals are set out in those documents.
In support of his case the father relied on the following material:
(a)Outline of Case Document filed 3 December 2024;
(b)Further Amended Initiating Application of 29 November 2024;
(c)His affidavit filed on 13 October 2024;
(d)His affidavit filed on 13 September 2024;
(e)Amended Initiating Application of Mr Wellington filed on 13 September 2024;
(f)Initiating Application of Mr Wellington filed on 2 July 2024;
(g)His affidavit filed on 2 July 2024;
(h)Further Amended Response of Ms Wellington filed on 28 November 2024;
(i)Affidavit of Ms Wellington filed on 2 October 2024; and
(j)Affidavit of Ms Wellington filed on 5 July 2024.
In support of her case the mother relied on the following material:
(a)Outline of Case Document filed 3 December 2024;
(b)Further Amended Response filed on 28 November 2024; and
(c)Her affidavit filed on 28 November 2024.
In support of her case, the Independent Children’s Lawyer relied on the following material:
(a)Chronology received on 5 December 2024; and
(b)Child Impact Report of Court Child Expert Ms E dated 18 November 2024.
The other, and possibly, the most important evidence before the Court, was the Child Impact Report of Ms E (“the Court Child Expert”) dated 18 November 2024 (“the Child Impact Report”), which became Exhibit ICL1. The matter proceeded on the basis of a consideration of the orders sought by the mother in her Outline of Case Document filed on 3 December 2024 (“the mother’s case outline”). As a result of the assistance provided by the Child Impact Report, and probably, I suspect, an improvement in the relationship between the parents, as well as some sensible legal advice, the parents were able to reach agreement about almost all of the issues that were identified and raised in the Minute of Order. As a result of that, I made consent orders to reflect their agreement.
A number of important issues remained for consideration. In particular, whilst the parents have agreed to what I believe, in the circumstances, is a good and workable arrangement for Z to spend time and communicate with the father, they were not able to reach agreement in relation to Y. In this respect, the mother proposed an order that Y was to spend time and communicate with the father in accordance, entirely, with his wishes. The father proposed that the same order made for Z to spend time and communicate with him would apply to Y, though he emphasises that, as a matter of practice, he would have regard to the views and wishes of Y. This is the biggest issue in this case, and the evidence that is contained in the Child Impact Report was very useful to the Court, and, indeed, very informative.
It is clear from this evidence that Y has expressed a quite strident view that he does not want to spend time and communicate with the father. The issue for the Court is to what extent it will place weight on those views. There is no doubt that Y’s views are an important consideration which the Court must have regard to, but I accept the submissions of Dr Owoeye on behalf of the father, and I think it was conceded by Mr Weightman of counsel on behalf of the mother, that Y’s views are but one factor that must be taken into account.
I take them into account with some reservations about the weight that needs to be given to them. On the one hand, he is a 15-year-old boy going through a developmental stage where, as is expected, he is exercising some independence, and practicing some of the emerging autonomy that goes with being a 15-year-old boy. Normally, the views expressed by a 15-year-old child would receive considerable weight in this Court as that recognises their independence and autonomy.
There are circumstances in this case that makes the Court much more cautious. There is evidence of the fact that it is not out of the question that Y’s views have been influenced by the mother, and what she has said. A general impression is formed in this case that the children collectively, but especially Y, have become far too involved in and aware of what has, at times, been an intense parental dispute.
The mother’s role in this, as is reflected in the Child Impact Report, suggests that there have been some inappropriate communications. It might not be intentional. Often, experience indicates that children are able to discern how parents are feeling without parents having to say anything.
The evidence does not enable me to be more definitive, other than to be reasonably satisfied of the possibility that Y’s views have been influenced by the mother, who may have inadvertently exposed him to matters to which he should not have been exposed. There are long-term consequences that both parents need to be very much aware of. I trust that some of the parental education that they will engage in as a result of these proceedings will help them to understand better the potential short and long-term destructive effects on the children of being brought into the parental conflict.
From the father’s perspective, the strident views expressed by Y represent alienation. Whilst that perspective is understandable, respectfully, even on the Child Impact Report’s analysis, it is unlikely that it is alienation in the technical sense, because with some gentle but persistent challenging by the Court Child Expert, Y was able to reflect on some good times with the father. That is to say, whilst he is saying that he does not want to spend time and communicate with the father, he does recall positive aspects about life with the father, and, that I believe is called in the social sciences ambivalence, and the prevalence of ambivalence generally contraindicates the existence of alienation. Of course, at this early stage it is purely conjecture on my part, but hopefully that will serve as some reassurance to the father and as a warning against adopting polarised positions such as calling it alienation.
From the mother’s perspective, it is implicit in her evidence, and indeed in the Child Impact Report, that things the father may have done, or not done, in comparatively recent history associated with the separation, may have contributed to Y’s current resistance to spending time and communicating with the father. If that were the case, and whilst I do not think the Court Child Expert used the precise term “estrangement”, then it is possible that there is some estrangement as a result of Y’s own interpretation of events. Of course, the risk is that interpretation of events has been influenced by what he has been told by the mother directly or indirectly.
The Independent Children’s Lawyer’s description of the relationship between Y and the mother as “alignment” is a much better, neutral categorisation of where things stand and avoids the polarisation of describing it as either alienation or estrangement. Experience in this jurisdiction indicates that often the reasons for a child resisting or refusing contact or communication with another parent is often a combination of many things which are only ultimately understood as a result of a therapeutic intervention, which these parents have agreed to.
To circle back to where I started, I take into account his views, as I am required to under s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”). I am cautious about the weight I apply to them because of the factors that I have identified, but I still cannot ignore the reality that this is a 15-year-old boy, and thus I cannot ignore those views despite having some reservations about how they came about.
The question of Y’s views, of course, are very informative of what order I should make. If I make an order that compels him to spend time with the father, then he could completely ignore that, and that creates several flow-on potential impacts, including what has been described as satellite litigation by way of contravention applications and applications to vary. Let alone the pressure that it puts on a 15-year-old child that an order has been made that requires him to do something that he does not want to do.
Especially in the context of agreed therapy, that will happen, one hopes, as soon as it is humanly possible for the parents and the Independent Children’s Lawyer to organise it. My biggest concern, and ultimately the reason why I declined to make the order proposed by the father for the time being, is that I am concerned that if I make that order I would create an arrangement, inadvertently, that does not promote safety for him. The safety that I am talking about is the “other harm” that is referred to in s 60CC(2)(a) of the Act.
The harm I am concerned about is the psychological harm that potentially arises at several different levels. There is the psychological harm in the pressure created for him, of having an order made that he has to do something which he does not want to do, for good reasons or not. But there is the even greater psychological harm of losing his relationship with the father because this Court prematurely ordered it to be restored by making orders for contact and communication. That is the greatest risk. If the father needs to understand why I am not making the orders that he seeks, I ask him to understand that that is my fear; that if I make the order, I am actually making the situation worse and I am putting Y in an unsafe psychological situation. Therefore, I am not prepared to do that, for the time being.
I am going to make the order that was proposed by the mother at Order 2 of the mother’s case outline, and that is that Y spend time and communicate with the father in accordance with his wishes. However, a different set of considerations apply to communicating with the father. I am open to, and I do intend to make orders for, Y to communicate with the father. The order will be broadly in terms of Order 11 of the mother’s case outline but with the following amendments. By making this order, I trust the Court is leaving open the possibility that Y will in fact agree to accept phone calls from the father on the basis that it is far less intrusive than being compelled to spend time with him. I accept that for the first few weeks this may be difficult and may not take place, but if Y knows that the father is reaching out to him to speak by phone or FaceTime, then at least he knows that this is what the father wants to achieve. Perhaps in time Y will come around to this, especially with the benefit of the ongoing family therapy.
I have declined to deal with further issues in relation to passports and international travel. I think that dealing with these issues might be a lot easier if, and when, Y’s time with the father recommences after therapy, and there may be an increase in the level of trust that the parents have for each other. I have declined to make orders under s 68B of the Act as proposed by the father or the Independent Children’s Lawyer. I do this not because I wish to minimise in any way the concerns that the mother has expressed about family violence in her affidavit. I do this in circumstances where the mother has other remedies available to her which, in real terms, are much more efficacious than making an order under s 68B of the Act. I do this in circumstances where, to some extent, the mother’s concerns about family violence are inconsistent with her own proposals, for example, Z to spend time with the father, though I note that many of the orders that I have made provide a safe environment for her in relation to family violence.
The other practical issue is that the mother is in City C and the father is in Melbourne. So, in no way minimising the mother’s concerns, for the reasons that I have articulated, I think that making the order is unnecessary and probably would be counterproductive in terms of the father’s perspective.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 13 December 2024
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