Relationship between a meaningful relationship and the need to protect – Hulls & Hulls

HULLS & HULLS

[2015] FamCA 1074

FAMILY LAW – CHILDREN – Best interests – With whom a child lives – With whom a child spends time – Long-term detrimental effect of the children of the current shared care arrangement continuing – Where the parents have poor communication and ongoing conflict – Issue of the father’s conduct and undermining of the mother’s relationship with the children – Parental responsibility – Family violence – Shared parental responsibility not in the children’s best interests. FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where it is just and equitable that orders effecting a property adjustment be made – Identification of property pool – Father’s farming partnership considered a financial resource – Overall financial and non-financial contributions should be regarded as favouring the wife – Consideration of s 75(2) factors particularly wife’s future care of the children and the lack of any real financial support from the husband.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79

Bevan & Bevan [2014] FamCAFC 19 Chapman & Chapman [2014] FamCAFC 91 Goode and Goode (2006) FLC 93-286 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 MRR v GRR (2010) 240 CLR 461 Russell & Russell [1999] FamCA 1875; (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120

APPLICANT:

Ms Hulls

RESPONDENT:

Mr Hulls

FILE NUMBER:

DUC

173

of

2014

DATE DELIVERED:

3 December 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Dubbo

JUDGMENT OF:

Foster J

HEARING DATE:

2, 3 and 4 November 2015

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1074.html

“The children in the conflict

35. It is clear that the children have been caught in the middle of this conflict and they are torn between an alignment with the father and an alignment with the mother.
36. Following a referral from the child’s GP Dr K under a Mental Health Care Plan in 2013 the child B had been engaged with a clinical psychologist Ms L since July 2013. The psychologist notes on initial interview contained the following:

… main concern is [B’s] anger and ability to manage emotions – concerned re impact of the parents separation and of being a witness to their “bad marriage” especially over past 5 years. Has seen counsellor at school… Discussed a general treatment plan in relation to anger, separation anxiety.

37. It is readily apparent from the psychologist notes (Exh N) that the father has sought to frustrate the children’s engagement with the psychologist, resulting in Ms L writing to the Forbes Community Health Centre on 5 September 2014 in the following terms:

I am wondering whether you had the capacity to accept a referral for [C Hulls]… I have had intermittent involvement with the family over the past 12 months and he is at present refusing to engage in treatment with me. The background of the family includes domestic violence and his parents are now separated. His mother, [Ms Hulls], is concerned that he has very little respect for women. His father, [Mr Hulls], has indicated to me that he believes there is currently no reason for counselling. [Ms Hulls] however has reported increasing aggression, poor social skills, threats towards herself from [C] and sexualised talk increasing over the past few months.

38. Subsequently on 24 September 2014 Ms L forwarded to the Department of Family and Community Services a Risk of Significant Harm Report in relation to both children. The report included the following:

The mother… Has reported acts of physical aggression directed at herself from [C]. She has also reported that he has been engaging in sexualised talk and inappropriately grabbing at her. The father has indicated that he does not feel psychological counselling is necessary and has cancelled appointments that are booked for the weeks the children are in his care. He has also reportedly failed to take [C] to a doctor or dentist appointment in relation to decaying teeth earlier in the year. The father has apparently told the boys that psychological counselling is not necessary and they refused to engage when brought with their mother. Termination of treatment has been deemed appropriate in relation to [B] but not [C] with reports of continuing aggressive behaviours, poor social skills and sexualised talk.

39. A perusal of the student records in relation to the child C at the D Town Public School post-separation reveals also significant behavioural issues in relation to violence, rudeness, disobedience and lack of respect for authority.
40. The father asserts that he spoke to the psychologist who told him “there was no need for counselling”. That assertion is simply false in light of the psychologist’s complaint that the father refused to bring the children when they were in his care and her concerned notification to the Department and her attempt to obtain supplementary support.
41. The father demonstrated little insight into the needs of his children by involving them in his decision. He rejected the assertion that it was derelict of him to leave it up to the children.
42. Many aspects of the children’s aberrant behaviour since separation are reflective of the concessions by the father as to his own behaviour post separation and engagement by him of the children in the interparental conflict. He has told the children “if your mother hurts you let me know” and “if you don’t like her discipline let me know”. Such comments can only undermine the mother’s parental authority and such is reflected in the children’s conduct particularly the youngest child. The father acknowledging that C complains about the mother to him “a lot”.
43. There is a strong inference that the children’s behaviour particularly the younger child C is a learned behaviour from exposure to the father and his relationship attitude to the mother and the mother’s new partner. The father further acknowledges that he has spoken to the children about the current proceedings.
44. Overall the father demonstrates little if any reflective capacity to focus on the needs of his children over his own and the priority that he places on the conflict with the mother to the detriment of the children.
45. Both parents have now re-partnered although neither live with their present companions. The father reported to the family reporter that he had no problem with the mother’s new companion Mr J as “I consider he took a problem off my hands”, that comment evidencing the father’s demeaning attitude towards the mother.

The family reporter

46. Both children were seen by the family reporter, who has had many years of experience in that role, in interview on 4 March 2015.
47. The family reporter observed that the children moved easily between their parents and their parents’ respective partners during the course of the day.
48. The older child B expressed the view that he was comfortable with the current shared arrangement continuing. Whilst acknowledging that his parents did not get on very well he denied that they said bad things to each other. The child was reflective of his younger brother’s use of the conflict between the parents to his own end telling the family reporter that when C gets angry with the mother “he tells mum he wants to live with dad all the time” and “if he’s told to do something and he doesn’t want to do it, he chucks a tantrum”.
49. On interview the younger child C said he didn’t like either school work or home work. He described the current living arrangements as “good… But there’s more rules at mums’”. He would prefer to live with his father with every second Saturday at his mother’s, although conceding a continuation of the current week about arrangements would be “all right”.
50. He would not prefer to live primarily with his mother and spend time with his father on weekends and school holidays because “she’s always on [B’s] side”. C was clearly enmeshed in the issue of parental conflict acknowledging his mother referred to the father as “he’s going to be at [Ms M’s]” (the father’s companion) and the father referring to the mother as “a cheater”, although not knowing the connotation of the term.
51. In evaluation the family report writer assessed the children as having very good relationships with each of the parents and their parents’ respective new partners.
52. Of concern was the question of weight to be afforded to the children’s views, as reflected above. As to a shared parenting arrangement the family reporter was of the view that the parent’s lack of communication and cooperation effectively makes the arrangement unviable. The evidence is clearly indicative of that.
53. As to B’s views the family report writer opined that the form and content of B’s views suggested that he was keen to avoid being drawn into the parental dispute or to favour one parent over the other.
54. As to C’s views it appears that underlying reasons related to the greater attraction of farm related activities, the relative lack of parental rules and discipline in his father’s household and the perception of differential treatment by his mother. The family reporter notes that none of these reasons are particularly persuasive and indeed some may actually be reasons to disregard C’s preference on the basis they are not likely to be in his long term interests. The family reporter further commented:

It is therefore not surprising that [C’s] verbal preference favours the least restrictive parental environment, although this is not necessarily a good reason to accede to this preference.

55. Of significant concern to the family reporter was the allegation that the father undermines the mother’s parenting of the children. This circumstance is illustrated by an incident in January 2015 school holidays when after an incident between the two boys at the mother’s residence, the child C telephoned the father who then collected the child and instead of seeking to resolve the issue, took the child to the local police station and had the child speak to the police before returning the child to the mother the next day, it appears without protest. It is also reflected in the father’s actions in relation to an incident in March 2014 where the children manipulated a situation to avoid accompanying the mother and her companion to a funeral.
56. In the view of the family reporter the father has effectively created expectation that C can avoid or escape the consequences of his actions in his mother’s household whenever it wants: a “get out of gaol free card”. This is clearly reflected in the B view of his younger brother’s antics with the mother and the incidents since separation.
57. Of particular concern is the father undermining ongoing psychological assistance for C and the view of the treating psychologist that a Significant Risk of Harm Report was required as a consequence of her position as a mandatory reporter.
58. The family reporter was clearly of the view that things must change:

69. This is not a sustainable parental approach, and it is one which is likely to cause unnecessary problems and emotional trauma for both [C] and [Ms Hulls] in future, although I suspect [Mr Hulls] already knows this. It seems hard to imagine [Mr Hulls] could not be aware of these consequences, especially when they are so aligned with his views, and the outcome that he seeks. I would also note that [Mr Hulls] is not an unintelligent person. Collectively, these factors give [Mr Hulls’] claim that “I thought I was doing the right thing” something of a hollow ring. A more appropriate parental response in the circumstances of this incident would have been for [Mr Hulls] to take/send [C] back to his mother’s house and allow them to sort out the issues which had arisen.

59. The family reporter observes:

78. The single incident of family violence in 2008 or 2009 which has been acknowledged by [Mr Hulls], his propensity to act in ways which undermine [Ms Hulls’] parenting, and his belief that these children need to be protected from [Ms Hulls’] controlling and potentially abusive parenting, collectively suggest that [Mr Hulls] may not be an appropriate primary parent for these children. [Mr Hulls’] attitude and behaviour suggest that if [B] and/or [C] were to live with their father, [C’s] relationship with his mother could be at risk of deteriorating, potentially to the point of extinction. Nothing about [Mr Hulls’] discussion of these issues gave any confidence that he would promote or protect the children’s relationships with their mother….

60. This conclusion by the family reporter is supported by the oral evidence by the father as referred to above.
61. The family reporter then said:

80. On the other hand, I have no such concerns about the children’s continuing relationships with their father if they were to live primarily with their mother. Indeed, my major concern in this eventuality would be that [Mr Hulls] may continue to undermine [Ms Hulls’] parenting of (and relationships with) the children, especially [C].

81. If the Court was to form the view that the disputed allegations of family violence have any validity whatsoever, I would imagine it may need to give very serious consideration to restricting [Mr Hulls’] time with, and influence upon, the children even more than [Ms Hulls] is proposing. In such circumstances it may be appropriate for the Court to send a strong message that such behaviour is not only inappropriate, but is incompatible with children’s best interests.

82. In relation to the question of parental responsibility, [Mr Hulls] reported that “we don’t speak … if it’s really, really urgent we will send a text message”, and “the best thing is that we not see each other”. This is hardly the kind of parental relationship that is necessary to support equal shared parental responsibility for the ‘major long term issues’ in the children’s lives, so it seems likely that this responsibility may need to be vested solely in one parent. In any case, it would seem likely that the presumption of equal shared parental responsibility outlined in Section 61DA of the Family Law Act may not apply in this instance due to the family violence which has previously been substantiated.

62. The family report writer said:

89. Clearly there is an asymmetry of power in the relationship between these parents, and the information obtained during the preparation of this family report lends support to [Ms Hulls’] perception that [Mr Hulls] continues to be a disruptive, undermining and at times hostile influence.

63. The evidence at trial is clearly supportive of this conclusion.
64. The family report writer continued:

90. At least one of the ways in which [Mr Hulls] appears to maintain this hostility is by allegedly making offensive hand gestures to [Ms Hulls’] partner, [Mr J]. [Mr Hulls] specifically denied that he does so, but during interview [C] confirmed that this occurs, and said he is not happy when he father behaves in this manner. This behaviour suggests that [Mr Hulls] has a propensity to allow his hostility or negative feeling towards [Ms Hulls], and those associated with her, to take precedence over the needs and interests of the children.

91. Given the foregoing circumstances I do not consider it would be reasonable or appropriate for these parties to hold equal shared parental responsibility for [B] and [C]. In any case I would imagine that the presumption in favour of equal shared parental responsibility outlined in Section 61DA of the Family Law Act is not likely to apply in this instance due to the acknowledged history of family violence.

92. On the basis of the information currently available to me, I recommend that [B] and [C] should live primarily with their mother, and spend time with their father.

65. In his oral evidence the family report writer saw the father’s undermining of the mother as a very problematic circumstance for the mother’s control of the children. He expresses concern about the prospect of the father covertly communicating with the children should orders as recommended by him be made and the need to address such an issue with proper counselling of the father (and the mother) in the context of the Parents not Partners program conducted through Interrelate.
66. The family reporter saw problems for the children if the father’s behaviour continued in that their ability to develop interpersonal relationships would reflect their own parent’s relationship that demonstrates lack of civility and disrespect.
67. The father was seen to have limited reflective capacity as to the needs of the children with the prospect that he would see the children’s best interests through the lens of his own interests with the prospect of the destruction of the children’s relationship with the mother.

Best interests of the children: s 60CC

The primary considerations: s 60CC(2)

80. The primary considerations are:
    1. The benefit to the child of having a meaningful relationship with both of the child’s parents; and
    2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence with this factor to be given greater weight of the two primary considerations.

Section 60CC(2)(a) – “meaningful” relationship

81. In Mazorski & Albright [2007] FamCA 520; Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.

82. In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
83. The risks to the children of a continuation of the present shared care regime are evidenced by the circumstances post separation and the considered views of the family report writer.
84. The children’s relationship with the mother into the future is at risk by reason of the father’s lack of reflective capacity and his relentless conflict with her and his either conscious or unconscious undermining of her to the children.
85. The children need a message that their relationship with their mother is valuable and important to them into the future and should not be seen through the rigidity of a shared care arrangement that takes no account of the risk that their father poses to their relationship with the mother.
86. As such the children’s relationship with the mother needs to assume primacy in temporal terms to send a message to them that she is an important figure in their lives.
87. Of necessity the children’s relationship with the father in terms of time spent will diminish but he will remain engaged in their various sporting and schooling endeavours. Such a reduction will provide some balance and place the children’s relationship with the father in a circumstance that will not present as a risk to them into the future and thus render the father relationship valuable and important to the children.

Section 60CC(2)(b) – need to protect

88. This is the subject of significant concern to the family reporter and those concerns being reasonably expressed and supported by the evidence are accepted. The father represents a risk to the children in terms of the prospective insidious diminution of their relationship with the mother and their own capacity to form mature relationships as they get older.
89. This can on the view of the family report writer be addressed by a reduction in the children’s time with the father. That view is accepted notwithstanding that particularly the younger child may be disappointed and feel aggrieved.
90. The children should be seen by the family reporter after the making of orders.

The additional considerations

91. The additional considerations are set out in s 60CC(3) of the Act. The relevant considerations are discussed below.
92. The views of the children are discussed above as is the family reporter’s view that they should not be given significant weight. That view is accepted. There are good reasons about any significant weight being attached to the youngest child’s views in all the circumstances as referred to above. For the reasons set out above a determination of this matter transcends a simple appreciation of the children’s expressed views.
93. The children have a good relationship with both parents subject to overarching issue of conflict and risk discussed above. They have a good relationship with the partners of each of their parents and enjoy a relationship with extended family on both sides.
94. Both parents have taken the opportunity to participate in decisions about the major long-term issues in relation to the children. Since separation they have continued notwithstanding contraindications as to same to implement a shared care arrangement.
95. Prior to separation the mother provided the primary income into the household supplemented by the father’s farm and off farm income. Subsequent to separation the mother has made a significant contribution to the maintenance of the children by reason of her superior income whilst they are residing in her household, the continuing provision of accommodation to the children by her in maintaining mortgage payments without contribution from the father, the maintenance by her of ongoing private health cover for the children and notwithstanding a shared care arrangement the payment by her of periodic child support to the father by reason of his modest farm income.
96. The mother’s proposal seeks to change the shared care arrangement that has been implemented post separation. As discussed above there are good reasons for a change in the best interests of the children. The family report writer expresses the view that the children, particularly the youngest child will be disappointed with such a result and there could be some issues arising.
97. However both parties need to be conscious of the best interests of the children and the issues impacting on the children as discussed in these reasons. It is hoped that both parents engaging in the post-separation parenting program referred to above will assist in settling the children after a change as will the children being seen by the family report writer after final orders. Notwithstanding some disruption that may occur, that disruption must be balanced against the prospective long-term detrimental effect of the children of the current shared care arrangement continuing. The changes proposed will render an imbalance in the defined time the children spend with the father and mother but otherwise contact will still continue in relation to the children’s activities as will the children’s contact with their respective parent’s partners and extended family.
98. There is no practical difficulty or expense in the children spending time and communicating with each of their parents. However the current arrangement with changeovers should be implemented after school on Friday and then thereafter before school on a later day should continue so as to avoid the necessity of personal contact between the father and mother. Otherwise as suggested by the family reporter it would be appropriate that if the children are in possession of a mobile phone or laptop on which they can contact the other parent then such devices should be in the control of the parent with whom they are spending time so as to avoid misuse particularly in the hands of the father.
99. Both the mother and father have capacity to meet the children’s needs including their emotional and intellectual needs. The mother represents a more formalised parenting regime probably as a consequence of her long-term occupation as a teacher. She clearly is able to provide for the children’s emotional and intellectual needs within her household particularly in circumstances where there will be an initial period of difficulty particularly with the youngest child.
100. The father needs to be alert to the issues discussed in these reasons for judgment and hopefully be conscious of his future obligations as a parent to these children. Should his behaviour continue as has in the past then he will fall well short of being able to address the needs of his children, particularly their emotional needs. But on the other hand he offers to these children particularly the youngest an engagement with a rural lifestyle and perhaps a greater freedom in parenting style that the children enjoyed. His younger child has a great interest in the rural life and into the future may well work on the land. However that of course is contingent upon his continuing progress in education and appropriate psychological development into the future. The father needs to be conscious of these issues and not seek to undermine the mother or continue to pursue conflict. Should he do so he will fail miserably in his obligations to his children.
101. The subject children are not children of immature years. The eldest B is now 14 years of age and in high school. The youngest C is now 10 and a half years of age and in primary school and in several years will follow his brother into high school. They have had a difficult few years over the latter period of their parents’ cohabitation and in the years since separation. Appropriate parenting arrangements now may well see these children develop with appropriate intellectual and psychological maturity. The children are at an impressionable age and, as it appears, from the post-separation history can be easily influenced either openly or insidiously such as to undermine their respect for, and their relationship with, their mother. The father needs to be conscious of this issue.
102. The attitude of both the mother and father to the children and their conduct as to their responsibilities of parenthood has been discussed at length above. Regrettably for these children, the ongoing conflict and inappropriate shared care arrangements has demonstrated the little reflective capacity on the part of the father to consider the needs of his children over those of his own desire to pursue the mother. The mother for her part seems to have had little capacity to empower herself against the father and has been the subject of inappropriate behaviour by both children. It is hoped that by formalising the children’s arrangement in an appropriate way both parents will move into the future with a better understanding of their responsibilities of parenthood.
103. There are clearly issues of family violence in the history of this matter as discussed above. It is to be inferred that the children have been exposed to same. By reason of the circumstances as discussed above it is appropriate that the mother should hold sole parental responsibility for the children. Historically there was a short lived Apprehended Domestic Violence Order against the father by reason of the bullet incident. That order was discharged following the parties’ reconciliation after the father had pleaded guilty to charges of intimidation and assault.
104. It is hoped that orders to be made in the context of these proceedings will be least likely to lead to the institution of further proceedings in relation to the children. Whether further orders are necessary into the future may well depend upon the father’s future conduct.
105. There are no other facts and circumstances that are considered relevant.

Discussion as to parenting orders

106. The matters discussed above are clearly indicative in the best interests of the children of orders that facilitate the mother having sole parental responsibility for the children, for the children primarily living with the mother and for the children to spend more circumscribed time with the father. The mother’s proposal is that the children spend time with the father each alternate weekend during school term from after-school Friday to before school Monday or Tuesday if Monday is a public holiday together with other specific days and half the school holidays. The family reporter expresses some reservations as to whether indeed three nights a fortnight is too much in the context of the matters discussed above.
107. However the children have a significant relationship with the father particularly in relation to their engagement in the rural lifestyle and their respective sporting pursuits. The father’s time with the children will not be limited simply to the defined time but the mother is in agreement that he should be able to continue his engagement mid-week with the children’s training and sport and where applicable their weekend sporting activities. Otherwise he should be at liberty to attend on other occasions significant to the welfare of the children including occasions pertaining to education, religion, health and other extracurricular activities.
108. Orders as substantially proposed by the mother and supported by the family reporter in relation to parenting will be made.”