Mother’s resistance to Father’s time
SHORT HISTORY OF CURRENT PROCEEDINGS
- On 19 August 2013, while B was in Western Australia, the mother filed the Initiating Application which gave rise to these proceedings. She sought sole parental responsibility for both children, residence with her and the appointment of a single expert. If successful, the application would have resulted in no defined time for the children with their father.
- I conclude that the mother made the application when she did as a back-up position in the event that the intervention by the Department for B did not result in an overall parenting outcome satisfactory to her. The mother, I am satisfied, is a strategic thinker.
- The application in July 2013 for an AVO was made in the context of the looming uncertainty about parenting arrangements after B’s time away. The order effectively, although not explicitly, kept the father away from the children until supervised time began in early 2014.
- Together with the Application, the mother also filed a Notice of Risk setting out allegations of abuse of her by the father going back to 2003. I will refer to these allegations elsewhere in these Reasons.
- On 16 September 2013 the father filed a Response proposing some transitional arrangements for baby C but with an ultimate proposal for the final Orders made in 2007 (for B) to now apply to both children.
- On 26 September 2013 interim Orders were made in this Court as follows:
- Suspend prior Orders;
- That the mother have sole parental responsibility and residence; and
- That the father have supervised time with the children.
- It is apparent that this outcome suited the mother and she hoped for continuation on a final basis although preferably with no time between the children and their father at all. Supervised time did not begin for several months.
- On 24 October 2013 the Department informed the Court that The Secretary would not be intervening in proceedings in this Court.
- In November 2013 the parties and children participated in a Court directed Child and Parents Issues Assessment. The Summary was prescient:
This assessment provides initial expert advice to the family and to the Court about the issues and the children’s needs.
It is of concern that there will be such a delay in the children spending time with their father, especially given [C’s] young age and [B’s] strong desire to see his father. The Court will need to make a determination as to whether there is unacceptable risk to [B] and [C] spending time with [Mr Townsend], even if the parents do not come in contact with one another. The Court may also be assisted by obtaining further information from FACS in this regard.
On Interview, [B] reported witnessing conflict perpetrated by both parents and them both informing him of other incident and speaking negatively of the other parent. It appears that [B] has been significantly affected by the parental conflict he has witnessed and he appears aware of issues beyond what is developmentally appropriate. This is likely to have a negative impact on [B] and [C], if they continue to be exposed to this behaviour.
Both parents have made allegations against the other regarding Police interventions and accessing medical treatment for [B] that contradicts the other parent’s views. It may be of assistance for the Court to determine the veracity of these allegations, in order to determine the parenting capacity of each parent.
- In December 2013 the mother and children travelled to the United Kingdom for a holiday.
- On 6 February 2014 the father changed his position before the Court. He filed an Amended Response seeking sole parental responsibility, residence with him in Western Australia and supervised time for the children with the mother. (The father no longer pursues relocation to Western Australia).
- On 7 March 2014 the hearing was expedited for hearing in September/October 2015.
- On 25 March 2014 the Interrelate supervised contact sessions began, and continued until November 2015 (with a period of suspension between May to September 2015).
- On 25 August 2014 the hearing dates were vacated and further dates in November 2015 allocated.
- On 19 December 2014 a single expert Child Adult and Family Psychiatrist was appointed and in June 2015 the report was released. The recommendations in that report were:
- That the children remain in the care of the mother unless the mother perpetuated a picture of the father as abusive (which in the opinion of the Single Expert he was not);
- That the children have regular unsupervised overnight time with the father; and
- That there be shared parental responsibility unless conflict had worsened.
- The matter proceeded to final hearing and came before me commencing 18 November 2015. The hearing ran for 3 days. Interim Orders were then made by consent providing for unsupervised time for the children with their father. The matter was adjourned until March 2016 with some expectation that the matter might resolve.
- The parties became concerned that one additional hearing day would not be sufficient. The March date was vacated and two additional days allocated commencing 12 September 2016.
- In June 2016 the parties attended a Legal Aid Mediation Conference and agreed on a further variation of orders to enable more time for the children with their father.
- On 12 and 13 September 2016 the hearing was concluded.
- Pending delivery of reserved judgment, I made interim Orders providing for expanded weekend time, including overnight time for C, and school holiday time.
- The mother presented as a calm witness with a formidable will.
- She changed her position over the course of this hearing which commenced in November 2015 and concluded 10 months later. The mother has complied with the interim Orders and permitted more time on occasions.
- The ultimate position of the mother was for regular time for the children with their father although she baulked at any overnight time for C.
- Whether this change represents insight by the mother into the needs of the children or is pragmatism in the face of a contest for residence is unclear. On balance I conclude it is the latter motivation.
- Intermittently since she returned from England in 2005, and certainly since the second separation in 2012, the mother has held the view that she had an obligation to protect the children from their father not to promote a relationship between them.
- Her reflection in 2015, on her unannounced return to England in 2005, was: “I decided it was in B’s and my best interest to be surrounded by family” by which of course she meant her own extended family.
- My impression is that the mother regarded the father as having disqualified himself from participating in family life so that returning to England to be with her own family of origin was the natural thing to do.
- After her return to Australia and the hearing in this Court in 2007 the mother made a life for herself in Australia.
- The parties reconciled in 2011 and had another child. The mother reacted very similarly when the relationship once again ended, apparently deciding the father’s behaviour, which offended her, disqualified him from an ongoing relationship with his children. She resolutely set about minimising his involvement. I conclude that she believed that she was acting in the children’s best interest in doing so.
- Whilst she has slowly come to terms with the fact through these legal proceedings, that that view of hers is unlikely to prevail. It appears to me that she is still doubtful about the value of a full and meaningful relationship between the children and their father.
- I am confirmed in that view by the mother having a typed Minute of Order to hand up prior to submissions at the conclusion of the proceedings in 2016. One paragraph of that Minute, which provided for progression to overnight time for C and her father, was struck out in biro. A last minute change of heart clearly, referred to by counsel for the mother as “nervousness”.
- The strength of the mother’s case for continuing residence with her is that she has been compliant with orders. The limit on her capacity is that she does not accept or believe that the children have a very positive and loving relationship with the father and that the behaviour of the father which so much offends and upsets her, does not have that effect on the children. She does not appear to accept that their relationship is a healthy one, a loving one, and one they need. I consider that she complies in order to avoid legal consequences of non-compliance. Having said that, I am satisfied that she does not actively undermine the relationship between the children and the father, rather her motivation has been in her view, “to save” or “to protect” them from their father.
- The mother does pick up comments made by the children of a negative kind and repeats them in her affidavit. To the extent that they make positive remarks about their father and the extended paternal family those remarks have not appeared in affidavit material.
- The attitude of the mother to the father has extended to the paternal family in a way that has been adverse to the children. B spent one whole school term in 2013, aged nine, with his paternal grandparents in Western Australia to provide him with respite and restoration of health. Prolonged exposure to his parents’ conflict was undoubtedly causing him to be anxious.
- Despite this very positive contribution by the paternal family, both grandparents and the paternal aunt, the mother made no effort to encourage that relationship to continue, even by telephone calls, when the child returned to NSW.
- The mother said she stopped B seeing his paternal grandparents because he did not want to see them. I conclude that it suited the mother to act on B’s expressed wishes when they accorded with her own wishes. However, B has expressed on many occasions, in the contact centre, to the Single Expert Dr AA and to the Independent Children’s Lawyer, that he has wanted more time with his father and has feared being kept away from him. Nevertheless, the mother has felt strongly that it was better for the child for her not to act on those positive wishes about the father. The mother is blinkered in this respect and it is a limit on her capacity.
- In relation to C, after the parties separated in August 2012, for about a year, B spent week about shared time with the father and C spent two whole days a week and other special times with her father. After B’s time away with his grandparents in September 2013, C did not see her father again until supervised contact got underway in a contact centre in April 2014. It was an enormously long period of time for an infant and she did not immediately recognise her father when contact resumed.
- Given this attitude of the mother, if the only child to be considered were to be B, given the strength of his wishes, it would be more appropriate for B to live with his father. However there are two children to consider and C has now fully restored and developed a loving relationship with her father but has never spent an overnight visit with him and is dependent on her mother for her day to day needs to be met.
- The mother is quite self-protective. One example of this is that the whole paternal family came from Western Australia in May 2015 for the father’s wedding to his current wife. The children did not attend the wedding. The mother said that she was unaware of any requests for them to attend. When the paternal aunt and the grandmother asked to be able to at least see the children whilst they were in New South Wales, the mother said “No”. Her explanation was “Given the proceedings and mudslinging, I didn’t want to expose myself to complaint”. This showed a complete lack of focus on the interests of the children who undoubtedly would have enjoyed being part of such an important extended family gathering for their father’s marriage.
- Given the opportunity to respond to what time the children could spend with the paternal family in future, the mother said that depended on the orders that were made, but if the Court granted the orders she sought, that is no contact with the father, then in her view, “It would be awkward, but the paternal great grandparents could see them”. This is a reference to the fact that the father’s grandparents live close by. They have attended contact centre visits, not without protest by the mother, and their home has been the place for changeover of the children since unsupervised time began in November 2015. They are an important connection for the children with their paternal family.
- When asked whether the mother was trying to completely exclude the paternal family from the lives of the children, the mother’s answer was instructive, “I am conscious of none of my family being around them”. Again, this was a lack of child focus on the fact that the children do only have one set of grandparents in Australia and to cut them off is a significant loss for the children. The mother has apparently seen it as a matter of personal equity and fairness for her and her family.
- I conclude that the mother has struggled to understand that B has a very different relationship with his father than she does. He understands his father and is untroubled by what he describes as occasional “rants” whereas the mother is horrified and backs away.
- The mother also struggles with understanding B’s emotional needs. She conceded, “I had to learn to respond to his emotional needs, build empathy. His behaviour has begun to settle and calm”.
- The mother also reflected that through the Resilience Children’s Project she had learned that aggressive and emotional outbursts from B could reflect confusion on his part and that she could help him to modify his behaviour by understanding his emotions. This is not something that has come easily to the mother. She had perceived B’s behaviour as a matter for discipline and improvement and had not appeared to understand that he was a child who had twice experienced the separation of his parents, with all the disappointment of hopes of reconciliation being permanent, dashed.
- The mother was taken to the notes from the contact centre revealing a quick restoration for C of knowledge of her father and then a delighted smiling and giggling, kisses and hugs for her father and lots of engaging and imaginative play with him. Having read the reports and conceded the positive reaction of both children, but particularly C, the mother reflected on the possible damage to the children of losing that love and attention with this statement, “On balance, the negative outweighs the positive behaviour”. By that, she meant that the negative aspects of the personality and behaviour of the father outweighed the positive behaviour he displayed with the children in the centre.
- The mother was cross examined in November 2015. She was at that time steadily opposed to any more time between the children and the father. She agreed that she was doing nothing to actively promote the relationship and that is consistent with her view that the conclusion of the proceedings should see an end to the contact. She could see no value in it.
- A passage from the Single Expert Report was drawn to the mother’s attention about the father:
On balance I formed the view that he was a capable, caring parent. I believe that he would be able to provide for the children. I don’t believe that he is an unacceptable risk to the children. [B] clearly wants to have a strong relationship with his father and there is a very strong bond between them. The conflict appears to be restricted to difficulties between [Ms Green] and [Mr Townsend]. I form the view that their conflict was specific to their relationship, that neither of them were a danger or a risk to the children or anyone else.
- The mother did not accept this professional opinion, either because she did not understand it or because she simply rejected it. Either way she was unmoved by the evidence of the strength of B’s bond with his father and his wish for the restoration of substantial time.
- In her focus on negative incidents, the mother was particularly drawn to a report in the Family and Community Services documents that:
On 8 March 2013 the father “… was observed to be screaming at [B] in the playground at school and held him against a wall. This was witnessed by staff, students and parents. [Mr Green] has been working with a domestic violence counsellor but father will not allow [B] access to a counsellor”.
- This document was tendered into evidence. The father was cross examined and denied that he had held the child against a wall or screamed at him, although there had been a conversation between them in the school yard. An application was made (and refused) to call the relevant DOCS officer who prepared the report to amplify it.
- The mother rejected the conclusions of Dr AA who had observed the children and parents, read all of the relevant material and come to some carefully considered conclusions and recommendations. An item such as the DOCS report of ‘somebody’ reporting to the Department an incident in the school playground in March 2013 she considered as a compelling reason to exclude the father from the children’s lives. It is an irrational response.
- However, it may be that the oral evidence of Dr AA had some impact on the mother who by 20 November 2015 had consented to orders for the children to resume seeing their father outside a contact centre. After almost 18 months of that limited, somewhat artificial experience, it was a change well overdue. However the mother did so consensually.
- In relation to child support the mother gave evidence in November 2015 that she was receiving $46.50 per fortnight as the assessed amount together with reduction in arrears. The assessed amount being $7 per fortnight at that time. The assessed amount has since reduced to nil. The father asserts and the mother denies that all arrears have been brought up to date.
- The mother is in employment on the three days a week when C is in childcare. Current evidence is that C is at preschool now four days a week so it may be that the mother has increased her employment. There is no doubt that she would be assisted by substantial financial contribution by the father.
- The mother agreed that she had not discussed with the father where C would go to preschool, where she would go to school, or more particularly in which year. There is currently a dispute between the parents as to whether she should start in 2017 (the father) or 2018 (the mother). The mother did discuss with the father where B would go to high school which led to a disagreement. The mother wanted a particular Christian high school with fees; the father was incredulous and probably rude in responding to the likelihood of the parties being able to afford that.
- On an interim basis the mother has had sole parental responsibility. She has exercised it by not inviting the father to any events at school despite her concession that B might have enjoyed his father being present. It is apparent that she has enjoyed the freedom from having any need to contact the father that comes with total decision making however, it is a worrying indicator for the future. The mother presses for a final order for sole parental responsibility for both children. It is likely that she would continue to take the view that since she was not obliged to include the father in any decision making she would not do so. Further, that having made decisions herself, she would not tell him what decisions she had taken.
- The father presented as disconcertingly self-assured. I ultimately concluded that this presentation helps him to remain calm and is not the revelation of arrogant superiority which it might first appear to be.
- It is likely that the father despaired of maintaining his relationship with his children after B returned from staying with the father’s parents in the fourth term of school in 2013. The father was unable to see either child, after B’s return, until April 2014 and then only in a supervised setting.
- His frustration and opposition to the need for supervision erupted from time to time in the contact centre with unconsidered remarks in front of the children about there being no need for the supervision to go on. He was critical of the mother. He was in that respect, his own worst enemy; contact was suspended for a period of months between May and September 2015 to the detriment of the children.
- When challenged about his statements made at the centre to the children that they would soon be coming to his home, the father gave the following evidence, “I was out of line giving the children false hope. I felt really bad. I didn’t mean to do that. It reduced me to tears”.
- However the contact centre records reflect an attuned, loving, interested and imaginative engagement with the children. In that setting C moved from barely recognising her father to being fully engaged and full of love and affection for him.
- I conclude that the father takes being a father seriously. He has a focus on the mother as being the source of all his difficulties in having time with his children. He too sought sole parental responsibility. He indicated that if he had that authority he would quickly move to equal time, week about, provided that worked for the children. If not he would reduce time as necessary.
- I am satisfied that that level of control would not be in the best interests of the children. Equal time week about would be disruptive for both of them given their history and the likelihood that if something went wrong, time would suddenly be reduced, could be nothing other than adverse especially in combination with the proposed change of residence. I consider that the intention to exercise parental responsibility that way, although well intentioned, was without insight as to the impact on the children. More than anything, they need certainty as to being able to see and spend substantial defined time with each of their parents without further disruption or conflict.
- The father has been developing a business for the past five or six years but it has not come to the point where it provides full time work for him. There is also the fact that he and his current wife now have a child born in 2016, aged eight months at time of trial. There is change foreshadowed in the household. The husband’s wife was a beneficiary of an inheritance, now expended, which allowed them to rent a home and live comfortably without either of them having to be in full time employment. The father is now seeking employment and his wife, whose evidence I unreservedly accept, intends to return to employment in or around January 2018 when their child W is two.
- The father has his wife, their infant child and his wife’s two children aged 11 and six as members of his household.
- Since November 2015 when the subject children have been coming to the household things have gone well and he has begun to be hopeful that there will be no further disruptions to his time with them. However his clear position was that the children come to live with him. Realistically if they did so, a significant part of the day to day care would fall not only on him but his wife and the full time household of five children aged between 12 years and eight months is an untested one on a permanent basis.
- The father is a believer in shared care but this is not a case where the children would have the benefit of the fluid, easy, cooperative parenting that gives rise to constructive shared care.
- The father has embraced assistance for parenting and emotional self-regulation for himself. He found Interrelate helpful and counselling from BB Centre and a psychologist he has been seeing regularly in 2016.
- It is a positive aspect of the father’s capacity as a parent that he persisted with time at the contact centre from April 2014 until November 2015 despite his own disappointment and the restrictions implicit in contact centre visits.
- I accept that the father had believed that supervised contact as a result of the interim Orders, would not go on as long as it did and was drawing on his experience of having had shared care of the children in the past, particularly B. The father missed only one access visit and even that was when an overseas flight was either delayed or the father underestimated the time of arrival.
- The father did accept Dr AA’s assessment of him as having an abrasive manner “He is qualified to judge me. I am not going to argue with him.” I conclude that the father did learn from the Family Report in combination with his attendance on psychologists that there are different ways of reacting and that emotional regulation will assist him in important relationships.
- I consider that the father has underestimated the impact on the mother of the minimal amount of child support he has paid, particularly when B has reported back on the father having a boat and having gone on an overseas holiday just prior to the one access visit that was missed. The mother is living on a Centrelink benefit and no doubt struggles from time to time meeting the financial requirements of the children. It is likely to affect real improvement if the father makes a more substantial contribution especially as B moves now into his teenage years with all the associated extra-curricular activities that come with that.
- When his cross examination resumed in September 2016 the father was disappointed that he and the mother were unable to agree on when C should start school. He thought she was ready and it was worth sending her in 2017. The mother is confident she is not and wants to send her in 2018. The Court cannot come to a conclusion about that. The parents will have to consult with the preschool that C attends, perhaps with the principal of the school proposed and otherwise one will have to make the concession that the other one should decide if they cannot agree after having received that advice.
- The father was challenged with the affidavit that the mother had filed updating the position since November 2015. The mother had chosen not to include the fact that she had changed C’s preschool but did include a list of negative statements attributed to the father and said to have been reported to her by B. The father denied that he had made the majority of the statements. It is possible that B made the statements he did to please or impress or antagonise his mother but it seems unlikely that the father would make salacious comments about his pregnant wife or his own vasectomy and intimate life with his wife to his son. That is uncharacteristic of all prior evidence but the possibility remains that B has made those comments to the mother falsely attributing them to the father. It would be important for the mother to consider all possibilities rather than simply accepting that the father would speak in that way to the child.
- The father gave impressive advice about managing C’s distress when she has to leave contract periods. Part of her difficulty is that she knows that B is spending overnight time and she is not allowed to. She has made a friend of the younger daughter of the father’s wife and enjoys her time in the household. She simply does not want to leave. The father described that his method was to say goodbye as quickly as possible, say “I love you, see you soon”, drop her off and let her go.
- The father was insightful when asked for his explanation as to why a teacher was complaining that B made silly noises in the classroom and would not stop. He considered several possibilities: that the child might not understand the subject; that he might be being distracted by friends or that the teacher was not suited to teaching that subject to B. He also thought he might be showing off for his mates or the girls in the classroom.
- The father spoke with great affection about his son, that what characterised him was “His kindness and understanding beyond his years, that he was empathetic. He is not cruel as kids his age can be.” Sadly, part of the explanation for the child’s understanding beyond his years is likely to be his exposure to his parents’ inability to manage themselves and to promote good relationships between himself and the other parent.
- The father too may have listened carefully to Dr AA. He has continued to engage with a psychologist in order to learn emotional regulation. His ability to do so was certainly on display in the witness box on the last two days of hearing in September 2016.
- This was a most finely balanced matter where arguably both children could have been moved into the care of their father given the mother’s past antagonistic resistance to allowing time between the children and their father and to allow it to progress in a reasonable way.
- The mother has changed her position since this hearing commenced in November 2015 and that is to her credit.
- I consider that the relationship of both children living full time with the father or at least having the majority of time with him is an untested arrangement, especially in circumstances where there would be a blended household and a change possibly of where the family lives and who would be working in the next one to two years.
- There is certainty in the mother’s household and continuity.
- It would particularly be difficult for C to move out of her mother’s full time care, she has had her needs well met other than the qualification that the mother has simply underestimated the significance of C’s relationship with her father and has likewise, underestimated and dismissed the significance of relationships with the wider paternal family.
- I consider that C does need a period of time where she steps up in the time spent especially with overnight time. However by 2017 both children will be, in my view, quite comfortable with spending five nights in each fortnight with their father and substantial holiday time.