Older children decide time
Slattery & Nolan  FCCA 1174 (2 June 2016)
Older children decide time: for full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1174.html
- Each of the children have expressed strong opinions to the mother as to the parameters they wish to have in place regarding their contact with the father.
- The child Y has told the mother that he would like himself and X to make the decisions around how often the visits happen with the father and when they will occur. He did not want the opportunity for harassment to occur by the father in relation to spending time with the children and believed that text messages would be a good way to make contact with the father so long as they were not used for that purpose. He told the mother that he would be happy with a phone call at Christmas and on his birthday. As to the frequency of visits, Y has told the mother that maybe a visit every 2 to 3 months for 1 or 2 days. Y has made it very clear to the mother that he wishes to have a responsible third person with himself and X whilst having contact with the father. He believed that this should be someone that he and X choose as it is them that need to feel supported. He told the mother that he does not want to be just in the father’s care. He told her that he did not want any visits to take place more than 10 minutes drive from where the mother was situated.
- The child X would prefer a one-day visit set for once per month as she does not have to think too much about it. She told the mother that if they were in a confined area then she would want a responsible adult there that she can trust and that she feels comfortable with. If she was out in a public area then a third person would still be preferred. X stressed to the mother that she wants the visits with her father to take place within a 30 minute radius of wherever the mother is so that they can be picked up if there are any problems. She stated that she wants to know that she has a secure, responsible person near them. X felt that she would want such parameters in place at least until she can drive herself and Y to safety if the need arose. She is in agreement to keep contact with the father through telephone calls and text messages so long as they do not become a form of harassment.
- Both children have separately aired to the mother their strong preference for visits that involve no overnight stays. They have told the mother they do not feel comfortable enough with the father to stay overnight.
- The children refuse to attend a visit without the other one being present. The child Y has told the mother that he doesn’t feel safe if X does not attend visits with him. He stated that it was like someone else is there that knows how you’re feeling in that situation. X has told the mother that she would definitely not want to go and see the father without having Y there as backup support.
- The mother confirmed that the two children were very close. They seek comfort and get comfort from each other. She confirmed that the children would wish to see the father together if they were to see him at all.
- The mother was asked why she thought the children were so uncomfortable about being with the father. The mother stated that the children had witnessed a number of incidents themselves as young children and had also seen how the father had treated them along the way since being in Sydney as well. She observed that the children had seen the father’s violent temper towards other people including the mother. The most recent incidents of the father’s temper was the Father’s Day incident in 2014.
- The mother did not believe that the father’s new partner, Ms J, by reason of her relationship with the father, would be able to step in if the children were at risk.
- The mother agreed with the proposition that there was not much of a thread left between the children and the father.
- The mother confirmed that it was her view that it should be up to the children whether they go and see the father given their age. The mother stated that she believed that the children would want to go and see the father as long as they felt comfortable. The children had stated to her that they do not want to shut the father completely out of their life, they want to have a relationship with him but to their choosing. The children would like to choose how often that is and under what circumstances. The mother stated that she believed the children had made up their own minds because of what they had seen and heard and experienced themselves. She stated that the children know that the mother’s wishes are that they have contact with the father as long as they feel comfortable about that and are safe.
- The mother stated that the children did not want to spend block time with the father in Queensland. She stated that the children were very adamant that they do not want overnight contact and that they were happy to have day visits. They also stated that they want such visits to occur in New South Wales that they feel secure and feel that there were other people to call upon if necessary.
- The mother stated that the parties tried to co-parent since the separation but it didn’t work. She stated that it only works when the father gets what he wants. The mother was of the view that if she had sole parental responsibility the father could still have a relationship with the children.
- The mother was asked to give an example of the last time that the father did something that was in the mother’s view harassing or intimidating in terms of getting what he wanted. The mother referred to an incident in 2013 in Queensland. On Father’s Day the parties arranged to put on a barbecue for the father at the local lake. After the children had spent some time playing, they came to the mother and said that the father was harassing them again. The children told the mother that the father kept constantly telling them that they should stay with him. The children stated that they had told the father that they don’t feel comfortable to stay with him “and he keeps on going on and on about it.” The mother confronted the father about what the children had told her and “that’s when it became very abusive and intimidating.”
- The mother did not regard an order that she have sole parental responsibility for the children as affecting the children’s relationship with the father. In terms of any time the children might spend with the father, she saw that as a separate issue. The mother stated that if she was given sole parental responsibility for the children that would allow herself and the children to move on and rebuild their lives (which is why they came to New South Wales) without having the interference of the father and having him intimidate them into what he wanted.
- The mother confirmed that the children do not wish to spend overnight time with father. The children have stated they do not want to spend block periods of time with father.
- The mother stated that the children want a supervisor that they can choose when spending time with the father; their preference is to have one of the maternal family members, the mother, their maternal uncle or maternal grandparents.
- The father confirmed that the mother had been exercising parental responsibility on her own since about late 2012. He was satisfied with the decisions the mother had made in relation to the children’s education. The father applauded the mother for the way she handled X’s spinal surgery; the father confirmed that that surgery was the most significant event in the children’s lives since separation in terms of the need for the parents to be able to co-parent.
- The father confirmed that he had heard the evidence of the mother the day before where she still maintained a concern about the father’s relationship with the child X (in the context of the mother’s concern that the child X is possibly at risk of sexual abuse whilst in the sole presence of the father) and with other young people. The father agreed that if the mother genuinely holds that concern, it would be rather difficult for her to share the parental responsibility with the father.
- The father was asked by the ICL that if the mother was accepted by the court in relation to her significant allegations against the father of family violence, that that would make it also very difficult for the mother to co-parent with the father. The father replied, “I understand that, and that’s why I think those issues should be addressed.”
- The father was asked by the ICL whether he denied perpetrating family violence against the mother. The father replied:
I had situations where I had in my affidavit, I acknowledged that we had an instance where-while we were under extreme stress that it did, in fact, happen and at the time I was a younger man and incapable or under-skilled in being able to cope with the situation that we were in. We were in financial stress and things like moving some, what, 14 times in 13 years or 15 years has put enormous pressure on the family unit and at the time – I’m not making excuses that it’s right, that I did respond in an inappropriate way and I sought help after that.
- The father agreed that if the mother genuinely holds the perspective that some of the father’s past behaviour was coercive and controlling towards her throughout the relationship, that that would make it rather difficult for the mother to continue to be a co-parent with him.
- The father stated that he would not state that his current relationship with the children is a meaningful relationship. He stated that time is needed to make it a meaningful relationship.
- The father accepted that the child X has had some mental health issues recently.
- The father accepted that at the age of the children, 13 years and 15 years, they were both at the stage where their peer group and in the child X’s case, her part-time employment, was probably going to take precedence over their relationship with both parents. In this context the father stated:
I’m aware that that is the time we’re approaching with their developmental stage and to share with you my fears that I fear that I’ve missed that opportunity to have that trust and grounding with my children, so I feel that they can come to me and come back to me when in need for just a dad relationship or help, that that has now passed.
- The Family Report Writer stated that both children reported that they have witnessed the conflict between the parents both prior to and since separation and they tend to place the blame on the father for being the perpetrator. She stated that the parties need to be cognisant of the fact that children who are exposed to ongoing family conflict and violence are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety as well as other cognitive and behavioural problems are commonly seen in such children.
- The Family Report Writer stated that the children’s energies need to be invested into mastering the challenges of adolescence which involve autonomy, personal identity, separateness from rather than in measurement with family and self-directed goal attainment. Forming significant peer relationships is also an extremely important part of adolescence and is of the essence for the children. As the children move through their adolescence, their views will assume greater importance and they will most likely articulate them and act on them irrespective of any Orders that are in place.
- The Family Report Writer recommended, inter-alia, that the children spend at least one weekend per term with the father in Sydney and at least one week during each of the school holidays, preferably longer during the Christmas school holidays, in the future. She recommended that Ms J or the father’s sister be the supervisor until the time that the children choose they no longer need supervision.
(5) That the children shall spend time with and communicate with their father in accordance with their wishes and as arranged directly between the children and their father.
(6) That the father shall do all such things as are necessary to accommodate the children’s wishes in relation to spending time with him including any request by the children or either of them that another adult be present during the time the children or either of them spend with their father.
(7) That the mother shall do all such things as are necessary to encourage the children to maintain a relationship with their father and shall facilitate any reasonable request by the children or either of them to spend time with their father.