Capacity to support a parental relationship
Krawiec & Haykal  FamCA 104 (26 February 2016)
For full case – http://www.austlii.edu.au/au/cases/cth/FamCA/2016/104.html
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
- It is clear that the mother does not have the capacity to be able to support a relationship between N and her father. On most occasions that this was suggested to the mother during the hearing she became somewhat defensive and appeared to be offended by such a suggestion.
- This opinion was expressed by Family Consultant Ms O and the mother challenged Ms O in cross-examination about this. When asked by the mother what she based her opinion on, Ms O said that the mother very clearly told her that she did not think N should be having any time with her father.
- Initially the mother had asserted that she would be able to support N having a relationship with her father. In support of this assertion the mother said that she had complied with court orders which required the child to spend time with her father, she had taken N to psychologists being Dr E and Dr D and that she had supported therapy. She said that it was the father who did not attend upon Dr D. She said time and again that she made the child available to the father in circumstances where she said the child had expressed a view of not wanting to go. But as Ms O pointed out to the mother, the child had a certain view of her father which, it was more probable than not, was strongly coloured by things of a negative nature which the mother had said about the father and matters of generally negative attitude to the father expressed by the mother and others in her household which would have been absorbed by N.
- For example, Ms O said that N had informed her that her father had kicked the family out of the family home, that is mother, S and N. Ms O pointed out to the mother that in fact at the time that the mother left the former matrimonial home N would only have been five or six years of age. Ms O said that cognitively a five or six year old child would not have had the capacity to form its own view that the child had been kicked out of the home. Accordingly, Ms O had formed the view that N had been informed about this matter, and in those negative terms.
- It was very clear from questions asked of the mother, including by myself, that she was unable to say anything positive about the father. In my view, it would be incomprehensible for her negative attitude to the father not to have been absorbed by the children. The mother demonstrated no insight into this at all and attributed almost the entirety of the blame for the breakdown in the relationships between each of the children and their father to behaviours by the father. The mother did not appear to be able to contemplate that her very negative attitude to the father and discussion about him in negative terms to the children has had a very damaging effect on the relationship between both children and their father. When asked specifically whether the child would have any different view than that her mother’s view was that it was not in her interests to have any relationship with her father at present, the mother could not even contemplate the question. But the mother eventually conceded that she could not support N having any relationship with her father at the present time but she thought that when N and S were 20 or 25 years of age there was “a hope” that they might be able to re-connect with him.
- An example of the mother’s negative and undermining attitude towards the father was her reaction to him having purchased gifts for N which he left with the child dispute section of this Court and which ultimately the mother agreed she would give to the child. What emerged about this in the hearing was that the mother was dismissive of the father’s generosity in purchasing the toys. She said that the toys were toys which N would have grown out of many years ago which she said reflected the fact that the father had no understanding of the stage of development that N had reached. The mother appeared unable to make any concession that in fact for the father to have endeavoured to please the children and express his love for them through the gifts was relevant in the proceedings. In my view, this was another powerful example of her negative attitude to him, not being able to resist taking any available opportunity to portray the father in a negative manner.
- Furthermore, the mother was shown photos of N taken in approximately December 2013 depicting the child smiling in the presence of her father. The mother offered that she thought the reason for the child’s apparent happiness was because the father had taken her to see Santa at the shopping centre. The mother was unable to concede that the child might simply have been happy in the presence of her father. The mother said that the child is very compliant with her father because she has been fearful of him over a long time. She said that the child’s apparent happiness in the photos showed only that she was happy in the particular moment of the photograph and did not reflect the child’s real relationship with her father. The mother said that the child had informed her that her father would “re-make” her take the photo if she was not smiling.
- Having said this, it is true, as the mother was at pains to point out, that the mother endeavoured to comply with the orders for family therapy whereas the father has not. The father has been unable to put his own views about the inappropriateness of Dr D as therapist to one side in the interests of facilitating the opportunity which N otherwise might have had of being able to arrive at a position where her relationship with her father might have been able to be repaired.
- In relation to the broad issue of breakdown in the relationship between father and daughter, it would be incorrect to say that the father has not contributed to this situation, because clearly he has. Firstly, and these matters reflect on his parenting capacity, he has been unable to resist the temptation to continue the litigation by a multiplicity of ongoing applications. He asserts that he has done this in the interests of his children, apparently being oblivious to the negative effect that this has had on his relationship with the children.
- He has done a number of things which have caused N embarrassment. He appeared at her school uninvited on 19 February 2014. N had stopped seeing him some weeks earlier in December 2013 after Dr D had recommended this apparently because the child had become increasingly anxious. N refused to see her father at school on 19 February 2014 which apparently upset the father. The police were called to the school and this caused great distress to the child. The father spoke to N’s teacher in an inappropriate way and within the hearing of N’s classmates which caused the child considerable embarrassment
- The mother said that a few days later, on 23 February 2014, she received a telephone call from a Senior Constable W who informed her that she had stopped the father in his motor vehicle for the purpose of administering a random breath test on 20 February 2014 and was concerned about certain things he said. The Senior Constable visited the mother later on 23 February 2014 and showed her a note which she had made of what the father had said. Included in the note was the following:
I’m not the only one. Every day on TV I see people killing a child and I just can’t believe I use to say that’s wrong this that but after what I’ve been though, I say I cannot judge nobody. But I am keeping a level head for 5 years. I don’t know what more I will do you understand but I am on the verge of collapse.
- The mother said that N had been enrolled by her father to play with a soccer team. This was during the 2011 season. The mother said that N had informed her that her father did not take her to the last few games that season and that the club had declined to register her for the 2012 soccer season. The mother said that she then rang the soccer coach who informed her that they could not have N on the team that season because of poor behaviour by the father when he had attended games the previous season. She said that the coach had said that the father’s behaviour had been “totally unacceptable”. She said that the coach informed her that the father had yelled during matches and frequently argued with the coach at matches and at training, and that it was not appropriate for the other children to be exposed to the father’s poor behaviour.
- The mother also said that the child had informed her that she did not want to continue going to dance classes because her father had learned that Mr B had been taking the child to her classes and threatened to send Mr B and the mother to jail. The mother said that the child said that this scared her and this was why she said that she did not want to go to dance class.
- Ms O said that the father might benefit from receiving information about how to manage adolescent children because his approach had not been working for him or the children.
- I am satisfied that the mother has been able to provide well for the physical and intellectual needs of the children. She appears to operate a successful travel agency. She has been able to maintain the former matrimonial home for the children. And it is clear that she has been able to pay the substantial costs of their private school education respectively. S is now at university and N is obviously doing very well at T School.
- On the other hand, it is less clear that the father would be able to provide for such needs. As indicated above he has remained unemployed and pays the most basic level of child support.
- Having said this, it is clear that neither parent has been able to demonstrate that they are capable of providing for the children’s emotional and psychological needs. Each has failed to protect the children from their conflict and hostility. To some extent each parent appears to have enlisted the children to their side of the conflict. For example N told Ms O that when she was spending time with her father he asked her to check on her mother and tell him things such as what time she returned from work. N indicated that this made her feel uncomfortable. N informed Ms O that she told her father that her mother had informed her that she could choose whether or not to spend time with her father once she turned 12 years of age. I accept this.
- S informed Ms O that after his parents separated and he spent time with his father, his father always spoke negatively about his mother.
- Dr D recommended N’s time with her father not be resumed until the father underwent a psychiatric evaluation and participated in therapy to assist him to understand N’s experience and to respond sensitively to N’s needs.
- As indicated above, the father has apparently found himself unable to participate in family therapy. During the course of the hearing the father appeared to be affronted by a suggestion from S to Ms O that the father might have a mental illness. I am not aware that the father has undergone any psychiatric evaluation.
- I am satisfied that it is not possible to be able to provide opportunity for N to spend time with her father or to have any real involvement with him without the consequence of exposing the child to a serious risk of psychological harm. Sadly, almost certainly as a consequence of the long-standing, ongoing, high level of hostility and conflict between her parents, and the dysfunctional nature of their relationship, N appears not to be able to have a meaningful relationship with both of her parents.
- N is a reasonably mature 13 year old child who has recognised this herself. Her views about her living arrangements have been expressed very clearly by her to Ms O and others. As I have said, in her report Ms O said “[N] was clear that she did not want to spend time with her father …”.
- Ms O formed the view that it is unlikely that the mother would support N having a relationship with her father. This opinion was challenged by the mother during her cross-examination of Ms O. I have referred to this matter above. As I have indicated, the mother eventually conceded that she did not regard it to be in N’s interests for her to have a relationship with her father at the present time. And as I have said, the mother also conceded that she would not be able to support N having such a relationship.
- As Mr Holmes for the ICL submitted, Dr Q who was the single expert in the proceedings before Federal Magistrate Walker, expressed her concern, now more than five years ago, about the vulnerability of N in arrangements between her parents. Dr Q said as follows at page 58 of her report dated 3 July 2010:
Because this is a high conflict situation it would be difficult to institute a shared parenting arrangement involving [N] and her father … . In particular with this family dynamic there is in my view a risk that [N] could come under pressure from her mother, grandmother and/or brother to align herself with them; there is also a risk that the father will attempt to win her sympathies rather than to meet her emotional needs. Thus, [N] may remain in the ‘line of fire’ as it were between the two camps. This is the major obstacle to a shared arrangement and it is a significant one. …
- Unfortunately, time has shown that N remained very much in the “line of fire” as referred to by Dr Q. Her Honour Federal Magistrate Walker made the final parenting orders on 11 February 2011. Within approximately 8 or 9 weeks the father embarked on further litigation with the issue of an ADVO by Suburb M Local Court against the mother. In October the same year the father filed an application to vary her Honour’s substantive orders. A few weeks later the mother applied for orders to permit her to remove the children from Australia for an overseas visit because the father would not permit this. Then the father appealed and abandoned his appeal. Next the father applied to the High Court and his application was dismissed.
- As indicated above by early 2013 there were difficulties between the parents concerning N’s telephone calls to her father and Dr D became involved as N’s therapist in recommending reduction in frequency of the calls.
- The mother sought to enforce a costs order against the father using proceedings available under the Bankruptcy Act and the father became bankrupt in November 2013.
- As indicated above, in December 2013 N stopped spending time with her father.
- So the conflict and hostility between the parents continued in spite of the very clear parenting orders made by Federal Magistrate Walker and the warnings by her Honour and also by Dr Q.
- Ms O opined in her Report that in circumstances where N had been subjected to a high level of conflict and hostility between her parents over many years, it was completely understandable that N might want to remove herself from “the crossfire”. Ms O went on to say that after N has made such a difficult decision, it would not be in her best interests for the court to force her to spend time with her father. Ms O was concerned that any attempt to force N to do so “will” result in a permanent disruption to their relationship.
- Learned solicitor for the ICL submitted that N has chosen to cease spending time, or having any contact, with her father as a means of surviving the ongoing conflict between her parents and the Court should regard her wishes as the predominant factor in the Court determining what orders would be in her best interests. Learned solicitor also submitted that the Court should put in place a set of orders which would give peace to the child in terms of her parenting arrangements and be least likely to lead to further litigation.
- Upon the Court considering all the relevant considerations to determine what parenting arrangement would be in N’s best interest, particularly the protective consideration in s60CC(2)(b) of the Act, in my view, the appropriate arrangement coincides with N’s expressed wish. That is, that she is to reside with her mother and not spend time, nor have contact, with her father.
- In my view, on the basis particularly of the evidence of Ms O and Dr D, if the court was to force N to spend time with her father and to place her back into “the crossfire” as it were, this would expose her to an unacceptable risk of emotional and psychological harm. It would also be contrary to her clearly expressed wish. In my view, such a course would be quite contrary to N’s best interests.
- Not to be having opportunity to have a relationship with her father whom she loves and who loves her is a most unfortunate outcome. But it has come about as the result, in my opinion, of the failure of each of her parents to be able to protect N from their ongoing conflict and hostility towards one another and their consequent dysfunctional parenting.
- The father said that if N was to inform him directly that she did not wish to spend time with him, he would accept this. I must say in my view, this demonstrates a remarkable lack of insight by the father to N’s needs and the extremely difficult and painful situation in which she now finds herself, due to her parents’ behaviour. In my view, for N to be placed in the position where she was required to confront the father with the decision which she has made would be completely inconsistent with the child’s best interests. As Ms O observed, it has been very difficult for N to come to this decision. I have no doubt that this is because she loves her father and would not wish to hurt him. In fact so difficult has this been for N that Ms O suggested that as time goes on N might need to be supported by an independent therapist. I propose to include an order to this effect.
- Ms O also said that if N was receiving therapeutic support it might be appropriate for her to receive letters, cards and gifts from her father provided that the content of such did not refer to the mother or to S. I propose also to include an order to this effect.
- Because N suggested to Ms O that she might be able to see her father at some point in the future, I propose to include an order which would leave it open to N to contact her father if she should so wish.
- The mother has also sought an order to restrain the father from attending at N’s school, home or work premises (including the mother’s business premises). This was supported by the ICL. I accept that such an order would serve the child’s best interests in view of the attendance of the father at N’s school in February 2014 with the unfortunate consequences this had for N, including police involvement as referred to above.
- The mother also sought orders to permit her to remove N from Australia for the purposes of overseas travel. On the basis of the orders I propose in relation to parental responsibility, residence and not spending time with her father, it would be consistent with N’s best interests for her to be able to travel overseas.