FATHER WANTS TO SPEND TIME WITH HIS CHILDREN, CHILDREN ARE FEARFUL OF THEIR FATHER AND WISH NOT TO SPEND TIME WITH HIM
Picton & Alleva [2021] FCCA 10 (13 January 2021)
This is a parenting proceeding where the father seeks time with the children despite the children being fearful of him and wishes not to spend time with him.
Facts:
Sixteen year-old X and her fourteen year-old brother, Y do not have a relationship with their father, Mr Picton. Their mother, Ms Alleva told the court the children are fearful of the father as a consequence of his violence both during and after their relationship. The father asked the court to make orders that would enable him to re-commence spending time with Y and for re-unification therapy to commence. He proposed that X spend time with him in accordance with her wishes. The mother opposed the father’s application although she was open to an order that the children spend time with the father as initiated by them.
Issue: Should the children spend time with the father?
Law:
- Family Law Act 1975 SS.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC
Analysis:
It is clear that the children have a close and loving relationship with their mother despite some earlier difficulties. They do not have a relationship with their father. They do not wish to have one. The father blames the mother for this and fails to accept any responsibility for his part in that.
The mother claimed the children’s fear of the father arose out of his violence to her in front of the children and his continual stalking. The father claimed the fear was generated by the mother’s denigration of him and is unwarranted. The court is satisfied that it is a combination of both those things. The children witnessed family violence between their parents. The mother, no doubt fearful of a continuation of that violence, instilled in the children the need for the family to be kept safe.
The father’s attempts to see the children at their school and sports classes, whilst not intending any harm to the children, has nonetheless aggravated the sense of fear in the children because it has allowed the mother to perpetuate the narrative of risk. The father’s failure to take up the option of supervised time at a contact centre deprived the children of the chance to separate their mother’s fears from the father’s motivation to be involved in their lives in a positive way.
This is a particularly sad case as the children’s emotional wellbeing and their relationship with their father may have been much different if the father had have sought legal action a number of years ago. The length of time since the children have seen them, their current ages and entrenched views mean that it is not in their best interests to make positive orders for them to spend time with their father now. To do so would backfire and set back any chance of the children seeking their father out when they get older. It is important though for the children to know that if they change their minds and want to spend time or communicate with their father they are able to do so.
Conclusion: The court orders that the children spend time or communicate with the father at such times as initiated by the children.
