Aaron and Robinson
[2013] FMCAfam 41
•30 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AARON & ROBINSON | [2013] FMCAfam 41 |
| FAMILY LAW – Children – whether to reduce or increase child’s time with father – best interests of child – credibility of witnesses – whether a witness was a “hired gun” – who should pay expenses of witness. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Sch.1, Pt 2 Federal Magistrates Act 1999 (Cth) Pt 6, Div.5 Federal Magistrates Court Rules 2001 (Cth) r.21.02(1)(b) Family Law Rules 2004 (Cth) Div.15.5.2 |
| Blanch v Blanch and Crawford (1999) FLC 92-837 Champness & Hanson (2009) FLC 93-407 MRR v GR (2010) FLC 93-424 |
| Applicant: | MR AARON |
| Respondent: | MS ROBINSON |
| File Number: | MLC 158 of 2011 |
| Judgment of: | Roberts FM |
| Hearing dates: | 16 & 17 November 2011, 13 February 2012 and 4 & 5 June 2012 |
| Date of Last Submission: | 5 June 2012 |
| Delivered at: | Launceston |
| Delivered on: | 30 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Elleray |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr Davis - 16 & 17 November 2011 Mr R Hammill - 13 February and 4 & 5 June 2012 |
| Solicitors for the Respondent: | Schembri & Co Lawyers |
ORDERS
That all previous Parenting Orders are discharged.
That MR AARON (“the father”) and MS ROBINSON (“the mother”) have equal shared parental responsibility for [X] born [in] 2005 (“the child”).
That the child live with the mother.
That the child spend time and communicate with the father as follows:
(a)During school terms:
(i)in Week 1 from after school on Thursday until the start of school on the following Tuesday morning; and
(ii)in Week 2 from after school on Wednesday until the start of school the following morning.
(b)By telephone at reasonable times and the mother is to ensure that such telephone calls are facilitated.
(c)For half of each school holiday as agreed, but failing agreement on a weekly rotational basis commencing with the 1st week in odd numbered years and the 2nd week in even number years.
(d)Notwithstanding the provisions of paragraph (c) above:
(i)From 4.00 p.m. on 24 December until 4.00 p.m. 25 December in even numbered years;
(ii)From 4.00 p.m. on 25 December until 4.00 p.m. on 26 December in odd numbered years; and
(iii)For a minimum of 4 hours on Easter Sunday as agreed, but failing agreement from 1.00 p.m. to 5.00 p.m.
(e)From 9.00 a.m. until 5.00 p.m. on Father’s Day.
(f)For a minimum of 3 hours as agreed on the father’s and the child’s birthdays, but failing agreement from 3.00 p.m. until 6.00 p.m. on those days.
That when handovers of the child do not occur at the child’s school the father is to collect the child from the mother’s residence at the start of each period referred to in Order No. 4 and the mother is to collect the child from the father’s residence at the end of each period.
That the mother be and is hereby restrained from permitting MR S from taking part in any handover of the child either at the child’s school or at any other location.
That the mother and the father are permitted to attend school concerts, assemblies, parent/teacher interviews and participate in such school activities as parents are normally permitted to attend from time to time, including acting as parent help at the child’s school.
That the father and the mother must advise the other of any emergency requiring medical treatment for the child as soon as possible but within 4 hours of such treatment being required.
That the father and the mother must each advise the other of their current telephone contact details and address and advise the other of any changes within 24 hours of such change.
That the father and the mother are each restrained from denigrating or abusing the other by any method whatsoever.
That the father and the mother must each enrol in a post- separation Parenting Course conducted by Relationships Australia (or a similar organisation) within 14 days of today and they must each attend and complete such course at the earliest practicable opportunity.
That the father and the mother must each notify the other of the details of both enrolment and completion of the post-separation Parenting Course as provided for in the preceding Order hereof within 48 hours of both enrolment and completion.
IT IS NOTED that publication of this judgment under the pseudonym Aaron & Robinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 158 of 2011
| MR AARON |
Applicant
And
| MS ROBINSON |
Respondent
REASONS FOR JUDGMENT
In this matter, the applicant is MR AARON (“the father”) and the respondent is MS ROBINSON (“the mother”). They are in dispute about the parenting orders that should be made about their 7 year old child, [X] born [in] 2005 (“the child”).
Brief Background
Unless a contrary intention is clear from the context, where I refer to facts below in these Reasons, they should be regarded as findings of fact, especially where there is a dispute between the parties in relation to those facts.
The father is almost 36 years old and the mother is aged 40 years. They lived together from September 2004 until November 2006. The child is their only child.
On 3 May 2007 the parties consented to orders (“the consent orders”) which provided that they have equal parental responsibility for the child and, inter alia, that the child live with the father as follows on a fortnightly basis as follows:
Week 1
(a) 8.00 a.m. Friday until 6.30 p.m. Monday;
(b) 8.00 a.m. Wednesday until 6.30 p.m. Wednesday;
(c) 6.30 p.m. Thursday until 6.30 p.m. Friday
Week 2
(d) 8.00 a.m. Monday until 8.00 a.m. Tuesday
(e) 8.00 a.m. Wednesday until 6.30 p.m. Wednesday
Those consent orders contained notations that:
·the arrangements would be varied when the child commenced school;
·the father was seeking “equal time” shared care arrangements when the child commenced school; and
·the mother reserved her position in relation to “equal time”.
There seems to be agreement that the child has generally spent time with the parties in accordance with the consent orders.
The mother commenced a relationship with Mr S in late 2010. They have since had a child, [Y], who was born in 2012.
In 2010 the father had sought mediation with the mother but that did not occur. He then commenced these proceedings on 10 January 2011 by filing an Application in which he essentially sought orders for the child to live with him and the mother on a weekly rotational basis. The mother filed a Response on the first Court day (23 February 2011) which sought orders that the child live with the father for less time than was provided for in the consent orders. On 23 February 2011 the matter was set down for a one day hearing before me in Melbourne on 8 June 2011.
In late March 2011 the mother commenced taking the child to a psychologist, Ms B, without consulting the father about that course of action. That stopped after the father objected.
The father filed a trial affidavit on 25 May 2011 and the mother filed a trial affidavit in Court on 8 June 2011. At that time, she had not filed an affidavit from her de facto partner, Mr S, despite having stated in February 2011 that she had been living with him “since about October 2010”.
Arising from matters in a report by Ms B annexed to the mother’s trial affidavit, the matter was further adjourned to obtain a Family Report and listed for hearing before FM Connolly on 13 October 2011 with two days allocated.
On 27 September 2011, the mother’s solicitor filed an affidavit sworn by Ms B, which purported to be an “Affidavit of single expert witness”. I will comment further about that below.
On 10 October 2011 FM Connolly released a Family Report by Regulation 7 Family Consultant, Ms K (“the Family Report”) but on 13 October 2011 he ordered that she prepare an updating report “with respect to the mother’s partner Mr S’ relationship with the mother and the child”. He then listed the matter with priority for hearing before me on 16 November 2011, still with an estimated hearing time of two days.
FM Connolly released the updating report (“the Addendum Report”) on 10 November 2011.
The matter came on for hearing on 16 November 2011. The father was represented by Ms Elleray of Counsel and the mother was represented by Mr Davis of Counsel. Unfortunately, the hearing did not conclude by the end of two days, so I made special arrangements to return to Melbourne to finish hearing the matter on 13 and 14 February 2012.
When the matter came back before me on 13 February 2012, the mother was represented by Mr Hammill of Counsel.[1] However, on that day the matter had to be further adjourned because the mother’s witness, Ms B, did not attend to give evidence and Ms K could not be located. I was prepared to adjourn the matter to a date in March, but neither party appeared particularly happy with that, so the matter was adjourned to 4 June 2012 with a further two days allocated. In fairness to the mother, she was in an advanced state of pregnancy in February, so it was not difficult to understand why she preferred hearing dates in June.
[1] No explanation was given about why she was no longer represented by Mr Davis.
The matter then continued on 4 June 2012 and I reserved my decision the following day.[2]
[2] The five days of hearing were 16 and 17 November 2011, 13 February 2012, and 4 and 5 June 2012. For convenience, I shall simply refer to those days as “Day 1” for 16 November 2011 through to “Day 5” for 5 June 2012.
At the start of the hearing the father was seeking orders that would provide for the following:[3]
[3] See Exhibit “F1”
a)That the parties have equal shared parental responsibility.
b)That the child live, spend time or communicate with the father as follows:
i)in Week 1 from Thursday at the conclusion of school until the start of school on the following Tuesday morning;
ii)in Week 2 from Monday at the conclusion of school until the start of school the following morning;
iii)by telephone at any reasonable hour with the child being assisted to call;
iv)for half of each school holiday, with Christmas and Easter days to be shared;
v)for four hours on the child’s birthday, the father’s birthday and any half sibling’s birthday unless otherwise agreed; and
vi)at such other times as may be agreed between the parties.
c)That the parties engaged in family therapy.
By the end of the hearing, the only change to his position was that the one night in Week 2 would start after school on Wednesday, and not on Monday. [4]
[4] See Transcript: Day 5 at page 40
At the start of the hearing the mother was seeking orders that would provide for the following:
a)That the child live with the mother.
b)That the child spend time with the father as follows:
i)from after school on Friday to the commencement of school on the following Monday each alternate weekend;
ii)for one half of all school holidays being the first half in odd numbered years and the second half in even numbered years;
c)That arrangements for Christmas and special events operate in accordance with the 2007 consent orders.
d)That the Christmas school holidays be shared on a week about basis up until the end of that holiday at the start of 2014.
At the end of the hearing the mother’s position appeared still to be that the father’s time during school terms should be for three nights each alternate weekend and for one other night in the other week. Her counsel described that as “four overnights which, in essence, is a reduction of one day from what is the status quo”. [5]
[5] See Transcript: Day 5 at page 52
Essentially, the dispute between the parties is whether the child’s time with the father should be increased or decreased.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[6]
[6] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [7]
[7] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[8]
[8] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section was amended in some respects by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (“the Amending Act”). However, Item 45 of Schedule 1, Part 2 to the Amending Act provides that the amendments to section 60CC do not apply to proceedings instituted before 7 June 2012. These proceedings were commenced prior to that date, so it follows that I must apply section 60CC as it applied prior to the amendments enacted by the Amending Act.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[9]
[9] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[10]
[10] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. That debate may continue from time to time. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[11]
[11] See Mulvaney & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[12] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[13]
[12] Section 61DA
[13] Subsection 61DA(4)
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[14]
[14] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[15]
[15] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[16] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[17] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of sub-section 65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in sub-section 65DAA(1)(c).[18]
[16] MRR v GR (2010) FLC 93-424
[17] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[18] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[19]
[19] See KB & TC (2005) FLC 93-224
Before turning to consider the evidence in the light of the principles set out above, I wish to make some general comments in relation to the evidence.
Credit
There are significant conflicts in the evidence, particularly between the parties in relation to allegations made by the mother about the father, so I consider it important to set out my findings in relation to credit.
In her affidavit sworn 23 February 2011 (her “first affidavit”), the mother said that in the previous three months the child had “told [her] on several occasions that he is scared of the [father]”. When it was pointed out to her by the father’s counsel that “it must have been only about a month after Mr S moved in”, she responded by saying that the child had been scared of his father prior to that. Questioned about why she had only referred to the previous three months, she responded:
It has gotten progressively worse.
Shortly thereafter, this exchange took place:
Ms Elleray: You’ve got a new man living in your home. My client’s evidence is there’s conflict in your home?
The mother: There isn’t.
Ms Elleray: That you and Mr S are on again, off again. That’s true, isn’t it?
The mother: That’s untrue. That’s very untrue.
Ms Elleray: But it has been true. You’ve been – you have had conflict, you and Mr S?
The mother: No, it was strained at the start, when we were trying to work – he was settling things with his wife, and that was what – with his ex-wife.
Ms Elleray: He was on again, off again?
The mother: It wasn’t on again, off again. We had a - - -
Ms Elleray: So much so that you asked - - -?
The mother: We had a disagreement at - at the current place that we’re living at, together, so it wasn’t off again. He was trying to work things out with her.
Ms Elleray: But he moved out. He got a removal van, didn’t he, and moved out at one stage. You're on your own?
The mother: He had - he had - he had a bed. That was it.
Following a further question from Ms Elleray, it seemed to me that the mother was not being very forthcoming in her answers, so I said to the mother:
Perhaps, if you answer the question, it may assist me. You were asked: did he get a removal van and move stuff out? The answer must be yes or no?
Her response to that was:
He did get a removal van for his bed.[20]
[20] See Transcript: Day 2 at pages 21 and 22
Significantly, Mr S conceded that he had moved out of the mother’s home to go back to his wife “to assist her because she wasn’t coping” but that “it actually turned out to be one day”.[21]
[21] See Transcript: Day 2 at page 71
I gained the very clear impression that both the mother and Mr S were trying to minimise the significance of their separation at that time. It was also clear to me that their relationship had been “on again, off again”, at least in its early stages, and they were both trying to cover that up.
It was then put to the mother that at that time the father went over to do some gardening and to help her and that those were the events surrounding 23 and 24 October 2010. To that she responded:
That’s when things were okay with [Mr Aaron], at that stage.[22]
[22] See Transcript: Day 2 at page 22
That simply does not fit with her version of what happened on 24 October 2010 as set out in paragraph 36 her first affidavit. That version suggests that the father attended her home uninvited and “somehow managed to get through [her] locked security gate”, whereas in her oral evidence she clearly conceded that he was there as an invitee to do some gardening and help her at a time when “things were okay”. Further, the mother’s counsel appeared to accept that the father had been asked to the mother’s house to do some gardening on that day, because he questioned the father thus:
You attended at the home on 24 October to help out with a bit of gardening. Correct – or for that type of reason?
I also note that at the end of paragraph 36 of her first affidavit, the mother said that her solicitor would be obtaining a copy of the relevant police report but none was produced. I can infer that, if he did in fact get such a report, it was of no assistance to the mother.
In the circumstances, I prefer the evidence of the father in relation to what occurred on that day.[23]
[23] See Transcript: Day 1 at pages 56 to 58
The father annexed to his affidavit filed 25 May 2011 copies of some text messages sent by the mother to him. The mother responded in her second affidavit that “for the most part they were a reaction to messages that had been sent by the Applicant to me, which he has chosen not to exhibit”. I will refer to some of the mother’s text messages below in a different context, however, at this stage I simply note that her text messages were quite vile and at no time did the mother produce the father’s text messages to which she says she was “reacting”.
During cross-examination the mother said more than once that she had hardly spoken during the interviews with Ms B.[24] That simply does not fit with what Ms B said in a report dated 7 June 2011 and subsequently deposed to in an affidavit filed 10 November 2011. She said:
The subject of [the] father has been discussed almost constantly at our meetings as this seems to be the principal concern of not only [the child] but his mother and the conversation inevitably returns to this.
[24] See Transcript: Day 2 at page 39
Further, a reading of the handwritten note that Ms B made on 31 March 2011 shows me very clearly that the mother must have provided almost all the information that Ms B noted on that day.[25] At the top, the name of the mother’s solicitor is noted and almost the first thing noted below that is:
Court proc’gs – shared custody. Fa wants more time – court proc’gs to counter this. Mo feels this is not in child’s best ints.
[25] See Exhibit “F7”
Further down she also notes matters that clearly came from the mother, not the child:
Once partner entered her life fa started to put press’re on child – yet he has sev’l partner, Bi-polar type …
The things quoted in the two paragraphs above are only a sample from those notes. However, they show clearly that the mother was very involved in providing Ms B with information, rather than “hardly speaking” to her. Indeed, when she was questioned at length about her notes of 31 March 2011, Ms B confirmed that almost everything that she had noted on that day was told to her by the mother.[26]
[26] See Transcript: Day 4 from pages 22 to 26
This was not the only instance of the mother’s own evidence conflicting with that of Ms B. In an affidavit prepared by the mother’s solicitor,[27] Ms B had said;
During our sessions [the child] was constantly fearful that he was going to be late for “daddy” because of our meetings. This made him very anxious. The fear of his father and the threat he posed was implicit all the time.
[27] Affidavit filed 10 November 2011, at paragraph 8
When the mother was questioned about that, this exchange took place:
Ms Elleray: He was worried about missing daddy, wasn’t it? He was worried that your sessions would go long and he wouldn’t be able to see him, because it was Thursdays when you took him, which is my client’s time. You had to get out of [suburb omitted] and back to changeover?
The mother: There was only one time that it was around that time that he was to be picked up.
Ms Elleray: He was nervous about the sessions going over time and missing - - -?
The mother: No.
Ms Elleray: - - - and not getting to see his dad, wasn’t he?
The mother: No, that’s not true.
The mother’s evidence was also inconsistent with that of her partner about attendances at appointments with Ms B.
Despite being the mother’s partner, Mr S had somewhat unusually not completed an affidavit. However he completed a Proof of Evidence,[28] and gave oral evidence. When cross-examined he initially said he had attended “one or two sessions with Ms B”, but later reduced that to only one session. Even later in his evidence he said that he had gone to “the original one” and he confirmed that by saying he was present at the first session. His words were:
In the first session, myself and [the mother], I did hear conversations. I was present in the meeting. [29]
[28] Exhibit “M2”
[29] See Transcript: Day 2 at page 76
That conflicted directly with the earlier oral evidence of the mother. When she was asked which session Mr S was at, she had replied:
I can’t remember if it was the second or the third. It wasn’t the first one.[30]
[30] See Transcript: Day 2 at page 59
In her affidavit filed 8 June 2011 (her “second affidavit”) the mother said:[31]
After discussions with the Applicant, I believe the reason he no longer works with children is that he was accused of stealing funds at [omitted]. He was dismissed and has not been able to obtain further work with children.
[31] At paragraph 9
When the father’s counsel put it to her that it was a lie, she did not confirm the truth of that allegation, but said instead: “I don’t know that that’s a lie” and “I believe that that’s what happened. There was money that went missing, and then soon after that, he was sacked by them.” [32] In my view, the mother clearly did not know whether what she alleged was true or not, so she should not have made such an allegation.
[32] Transcript: Day 2 at page 29
However, the mother also made a further allegation against the father about the time when he had worked with children in her interview with the author of the Family Report on 31 August 2011. Paragraph 29 of the Family Report contains this:
She further added concerns regarding the father disclosing to her having assaulted “the naughty kids” during his work with children. The mother reported “it scares me when [X]’s naughty” as to how the father may respond to the child …
The mother had not said that in either of her affidavits and the father denied that allegation when it was put to him on Day 1. However, when the mother gave her oral evidence on Day 2, it was not put to her by her own counsel. That was somewhat surprising, given the seriousness of such an allegation.
The mother makes allegations about the father being violent towards her which the father denies. He says at paragraph 23 of his second affidavit that he is not, and has never been violent towards her. I note that the mother obtained an Intervention Order against the father on 27 August 2009 in relation to an incident that she had alleged took place on 12 August 2009. The father was not in court at the time that the Intervention Order was made. Annexure “E” to her first affidavit is a copy of her report to the police on 13 August 2009 in which she admits that she when she had arrived at the father’s unit the previous day she was “angry” and “ended up swearing at him once”. She also said that she had called him a “loser” before he hit her twice. However, she omitted to mention in her statement to the police on 13 August 2009 that a fortnight previously she had sent this text message to the father:
29/07/09 @ 22:46 - Listen to me u fucken cunt. Stop putting [X] to sleep during the day. If u don’t want to be with him then just fuck of and leave us alone. U r ruining him and he wont sleep. U selfish fucken cunt of a fucken shit dad
She also omitted to mention in that statement to the police that she sent the following three text messages to the father on the same day that she was complaining about:
12/08/09 @ 19.31 - Bring him Fucken out.
12/08/09 @ 21.21 - Open wide u fucked up idiot. Open wide. Lol Lol Lol Lol
12/08/09 @ 22.01 - and by the way u know that dead brother of yours. What fucken fag. And how good that one fuckcn gay [Aaron] is fucken dead. Lol.
I note that the police do not appear to have charged the father in relation to the assault alleged on 12 August 2009, nor are there any complaints by the mother of any breaches of the Intervention Order that she obtained on 27 August 2009.
In my view, the significance of what I have set out above about the Intervention Order obtained by the mother in August 2009 is that she does not appear to have properly put the facts before the police, and she clearly minimised her own culpability in what was an incident that should never have occurred in the presence of the child.
The father’s evidence was given in a forthright manner, and although he was cross-examined in a robust fashion at times, he was generally unshaken. Further, he appeared willing to make admissions and concessions that were contrary to his interests when such were required of him.
Having seen and heard both parents cross-examined vigorously in the witness box for lengthy periods, I have no hesitation in concluding that the mother is more prone to exaggeration and fabrication than the father. Consequently, where their evidence conflicts, I generally prefer the evidence of the father.
Ms B’s evidence.
I have significant concerns about the evidence of Ms B. Those concerns relate in a very large part to the manner in which she was involved in the proceedings, but they also relate to Ms B’s general credibility.
At the start Ms B’s cross examination, this exchange took place:[33]
Ms Elleray: You know for a fact that on 31 March 2011 when you first met [X] and his mother it was in the context with the backdrop of current court proceedings, you notes reflect that?
Ms B: No, no, I must say, I can amend that, no, I wasn’t aware that court proceedings were ongoing. There was – my role, as I perceived it and I must tell you this, was to alleviate a current – a child in current distress.
[33] Transcript: Day 4 at page 18
That was clearly untrue because:
·court proceedings and the mother’s solicitor’s name is mentioned at the top of her handwritten notes of the first appointment;
·the mother’s solicitor and court proceedings are mentioned in her notes of the second appointment; and
·during the third appointment she noted “60/40 access now – he is asking for 50/50”.
It was hardly surprising that Ms B changed her evidence after some of that was pointed out to her.
It was the mother’s evidence in her second affidavit that she was so concerned about the child’s lack of happiness that she started taking him to see Ms B. She attached a copy of Ms B’s report dated 7 June 2011. In that report, Ms B said this:
My strongest recommendation possible is to reduce access of this highly dangerous individual (for this child, anyway) to the lowest possible level, ideally prohibit access completely, or make it conditional on supervision.
Ms B repeated that extremely strong statement in her affidavit filed 10 November 2011, notwithstanding that she had not ever had any contact with the father.
Ms B was quite adamant that it was her professional opinion that it would have been inappropriate to speak to the father. I have a significant difficulty with the fact that she could arrive at a conclusion that the father was a “highly dangerous individual” without ever seeking his side of the story. It did not surprise me that Ms B conceded in cross-examination that she had not been involved in many family law matters in her professional experience exceeding 35 years.[34]
[34] See Transcript: Day 4 at pages 12 and 61
Early in her cross-examination, Ms B had been asked whether the fact that court proceedings were on foot had suggested to her that she could be in a situation where she was being used by the mother to assist her case to prevent the father from having more time with the child. Her answer was somewhat tortuous and unconvincing. She said:
I see what you’re saying. I see exactly what you’re saying. I thought of this. I did think of this. I thought very carefully about this and I see your point and it’s a valid one. I take your point. I really do take your point but on the other hand I thought of this carefully and I thought “no”. I do really think that professionally I have – I do have concerns here and I have a very strong professional problem with this child – I have strong concerns about what I’m seeing and I have a very strong – a strong real concern over and above this issue.
However, later in her cross-examined of nearly two and a half hours, she conceded that it was possible that she had been used as a “pawn” in the proceedings “by the mother to block the father having any more time if she could demonstrate through [Ms B] that this child was scared of [the father]” and that perhaps her view had softened. [35]
[35] Transcript: Day 4 at pages 41 and 61
I point out that Rule 15.07 of the Federal Magistrates Court Rules 2001 provides that an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses. Some of the key point of those guidelines are:
·an expert witness has a duty to assist the Court on matters relevant to the expert’s area of expertise;
·an expert witness is not an advocate for a party; and
·the overriding duty of an expert witness is to the Court and not to the person retaining the expert
In Re W and W: Abuse Allegations; Expert Evidence[36] Nicholson CJ and O'Ryan J said:
As to the evidence of Dr W, we are of the opinion that Dr W demonstrated bias and thus little, if any weight, should have been attached to his opinion. In our view, he stepped out of the role of an expert witness and assumed the role of advocate.
[36] (2001) FLC 93-085
Overall, it became very clear that Ms B had also assumed the role of an advocate for the mother. That is especially clear from the letter that she wrote to the Court on 14 September 2011, and which she said she wrote on her own initiative. [37] That letter is attached to her affidavit.
[37] Transcript: Day 4 at pages 62 and 63
The evidence of Ms K
The Family Report and the Addendum Report were received into evidence and Ms K was cross examined by both counsel for a total of approximately two hours. At the outset, I will say that I have no concerns at all about Ms K’s credibility or professionalism. However, I do have significant concerns about the manner in which Ms B influenced the reports of Ms K.
At paragraph 50 of the Family Report, Ms K reported:
Ms B described the mother, as generally warm, nurturing and protective towards [X], including Mr S. She described Mr S to be somewhat more protective of [X] with regard to his father than Ms Robinson. Ms B described the mother as “a little passive” and that she generally doesn’t condemn the father, though at times has denigrated Mr Aaron in the presence of [X], which the psychologist stated is not helpful for [X] and thus, has recommended the cessation of the child being subjected to such negative behaviour.
I must admit that I found describing the mother as a “passive” person who “generally doesn’t condemn the father” to be a little difficult to accept, given her comments about him in her affidavit material and in the witness box. That description of her certainly did not sit well with the vile text messages that she sent to the father. I note that Ms K commented that “passive response is not reflected according to those messages”.[38]
[38] Transcript: Day 5 at page 17
In paragraph 51 of the Family Report, Ms K had said:
From Ms B’s perspective [X] requires ongoing therapeutic and emotional support, particularly if he maintains a relationship with his father though recommends that due to concerns regarding the father’s emotional abuse towards the child, that the time spent between them should either be limited or for Mr Aaron and [X] to not spend time together.
Ms K was asked if she concurred with that view, she said that she did not. She then declined to comment when asked if she thought that view was “over the top”.[39] (However, I am prepared to be more forthcoming and state that I consider most of Ms B’s views in this matter to be “over the top”.)
[39] Transcript: Day 5 at page 25
The following exchange then took place:
Ms Elleray: Do you say that you saw anything in the sessions that you had that warranted Mr Aaron’s time being limited, or for there to be no time together, given the 2007 orders had been in existence up until the father brought proceedings?
Ms K: Based on my immediate observations, not necessarily, but my immediate observations is not the only content that I take into consideration to write my report, and base my evaluation recommendations. So to answer your question, no, based on my immediate observations.
Ms Elleray: You would disagree with Ms B’s assessment, as contained in paragraph 51 of your report?
Ms K: I’m not saying that I disagree. What I’m saying is based on my – based on your question around my experience of the child with his father, there was nothing to suggest any immediate concerns, but my report is not just based on my observations.
I must say here that the Family Report and the Addendum Report were clearly not solely based upon Ms K’ own observations. She was very clearly influenced to a significant extent by the views of a fellow professional, Ms B, which I find to be erroneous. Ms Elleray went so far as to say that her reports had been “tainted, poisoned, infected”.[40] Those are strong terms indeed, and I note that in his closing submissions Mr Hammill stated that Ms B’s evidence was “open to significant criticism and all of them properly made”.
[40] Transcript: Day 4 at page 3
However, that is not to say that the Family Report, the Addendum Report and the oral evidence of Ms K were not of assistance to the Court. The real benefit of them was to show very clearly to me that the child’s concerns are not a real fear of his father (as alleged by the mother) but rather an anxiety and fear of conflict that might occur when his father and Mr S come into contact with each other. Clearly, the father and Mr S both need to control their behaviour towards each other if the do come into contact. I will refer to that aspect of this matter more below.
Section 60CC - Primary considerations
The benefit to the child of having meaningful relationships with both parents
The term “meaningful relationship” in relation to section 60CC has been considered by Australian courts in a number of cases. For example, in Mazorski and Albright,[41] Brown J said this at paragraph 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 quantitative one. Quantitative 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.
[41] Mazorski and Albright (2007) 37 Fam LR 518
The Oxford Dictionary of English[42] defines “meaningful” as “serious, important or worthwhile”, and I consider that “worthwhile relationship” is synonymous with “meaningful relationship” for the purposes of section 60CC.
[42] 2nd Edition revised
In the Family Report, Ms K referred to the earlier reports in the previous proceedings and how those reports emphasised the strong bond between the child and each of his parents. The parents settled those proceedings on the basis of Orders whereby the child would spend substantial parts of each fortnight with each parent, so it is therefore not surprising that at paragraph 52 of the Family Report
Ms K stated that both parents “demonstrated an emotional bond and connection to the child given their longstanding shared parenting arrangement”.
I am satisfied that the child has very worthwhile relationships with both parties and that those relationships should not be reduced in quality unless there are other factors that show that it would be necessary in the child’s best interests.
The need to protect the child from harm from abuse, neglect or family violence
In the Family Report, Ms K made these recommendations (which she effectively repeated in the Addendum Report):
56. It is therefore recommended that the child primarily live with his mother and that this arrangement in time will also enable [X] to foster a sibling relationship with his unborn half sibling. As it is beyond the scope of this Report to determine level of risk posed to the child in the presence of the father, it is recommended that the Court determine this. Thus, for at least 6 to 12 months and pending further review that [X] spends reduced time with his father. That is, depending on the level of risk deemed by the Court a range of options may be considered in terms of [X] and the father spending time together provided the child's best interests are prioritised and minimal disruption is caused to his routine, which include:
Provided risk being deemed as low, for [X] and his father to spend fortnightly overnight weekends together from Friday directly after school until Monday morning. For them to also spend time and have dinner together 1- 2 nights per week from directly after school until 7 pm on days that are mutually convenient to both parties.
If risk is considered moderate and in order to minimise risks to the child for [X] and his father to spend weekly contact together one day each weekend from 10 am to 6 pm on a day that it also mutually convenient to both parties.
Should the level of risk towards [X] be deemed imminent and significant then a supervised arrangement is recommended via a private option and/or at a publicly funded Children's Contact Centre on a weekly basis for a minimum of two hours.
When she was in the witness box, I asked Ms K about why the lowest risk that she referred to was “low” when there could be a possibility of “none”. Her response was to say that there had been some elements of family violence that had been substantiated in the past and that eliminated “none”. However, when I questioned her further about the substantiation of violence, she referred to the police initiating Intervention Orders and went on to express her understanding that those are initiated by the police based upon their observations. At that point, the mother’s counsel conceded that Intervention Orders are generally sought by the police based upon information provided by the parties.
It seems to me, therefore, that it is a misconception to say that the mere seeking of an Intervention Order by police is a substantiation of family violence.
In this particular matter I am more than satisfied that while the parties’ relationship has been volatile at times the blame cannot all be attributable to the father. I refer to the text messages that are quoted above and also to the fact that I generally prefer the father’s version of events.
In those circumstances, I consider the risk of family violence from the father to the child to be so insignificantly low as to be almost zero.[43]
[43] See Transcript: Day 5 at pages 28 and 29
Unfortunately, that will not of itself alleviate the child of the anxiety that he feels about the father and Mr S coming into contact with each other.
In that regard, I refer to what Ms K said in the Family Report:
33. Initially [X] presented anxiously following Ms Robinson informing him that Mr S was to pick him up after the interview. The child articulated this to the writer expressing fear of his father and Mr S being present at the same time given previous conflict between them. The child was somewhat reassured after discussing his concerns with the mother and her changing these plans, resulting in Ms Robinson transporting the child home and not her partner.
It seems to me to be perfectly clear that the child’s anxiety has been caused primarily because of the incident that occurred between Mr S and the father on 24 October 2011. Although I have determined that the father’s version of that incident is more believable, it does not matter whose version is correct, because the child was clearly very distressed by that incident.
I note also that Ms K stated that there was an underlying sense of tentativeness in the child’s responses and she referred particularly to his refusal to discuss his concerns regarding the volatile relationship between the father and Mr S.
I will therefore be drafting an order that is designed to minimise the stress upon the child arising from contact between the father and Mr S.
Section 60CC - Relevant additional considerations
The child’s views
The child is only 7 years old and he is unlikely to have a mature view about what is in his overall best interests. However, I note that he reported identical wishes in relation to both his parents and that was for them “to not be so angry” and further that he “would never get scared”.
One can only hope that both parents have taken very serious notice of those comments made when the child was only 6 years old.
The child’s relationships with the parents and other people
I have already noted that in the earlier proceedings that resulted in the consent orders, the family report writers had emphasised the strong bond between the child and each of his parents.
Ms K reported that the child demonstrated some warmth and ease in his father’s presence and an ability to gently assert himself with his father.
I note from Exhibit “F5” that the child stated that one of his “likes” was the fact that his father helped in the classroom. In that regard he was a helper on Wednesdays during the child’s year at Prep and he had also been a parent helper during sessions on numerous occasions when the child was at pre-school a year earlier. I also note that the father has specifically asked for his time in “Week 2” during school terms to coincide with the father’s time as a parent helper at school.
There is nothing in the report by Ms K to suggest that the relationship with his mother is any less secure and I conclude that the child has normal and loving relationships with both of his parents.
The addendum Report informs me that the child showed an interest in Mr S and presented as excitable and happy. Further, it reports that: “Mr S, the child and the mother were all mutually relaxed and comfortable in each others presence.”
When I heard the mother’s and Mr S’s evidence, their child had not yet been born. However, there is nothing to suggest to me that [X] would have anything other than a normal sibling relationship with his baby half brother who was born last April.
The willingness and ability of the parents to facilitate and encourage the child’s relationships with the other parent
I do not have any significant concerns about the father’s willingness to encourage the child’s relationship with the mother. I accept that he has always sought to ensure that the child maintains a loving relationship with the mother and is encouraged to want to be with her.[44]
[44] See his first affidavit at paragraph 38.
Unfortunately, I have no great confidence that the mother will facilitate and encourage the child’s relationship with his father.
I am satisfied that the mother consulted Ms B with the specific intention of reducing the child’s time with his father. That is perfectly clear from Ms B’s handwritten notes where she had written that the father wanted more time with the child and that the Court proceedings were “to counter this”. I have no doubt that the mother intended that the supposed expertise of Ms B would be used as a weapon against the father. To that extent, the mother intended Ms B to be her “hired gun”.
However, my concerns about the mother not encouraging the child’s relationship with the father go much deeper than that. I am satisfied that she fabricated and exaggerated evidence in order to achieve her purpose and she certainly did not have the child’s best interests in mind in doing so.
In our judicial system, proceedings generally follow an adversarial format. Unfortunately, that often results in the parties (and their lawyer on occasions) quite wrongly falling into the trap of unnecessarily belittling the qualities and actions of the other party. That does not accord with the principles for conducting child-related proceedings as set out in section 69ZN of the Act. In my view, it is worth re-stating that one of those principles is that “the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties”.[45]
[45] See subsection 69ZN(6)
While it is quite clear that the mother fell into the trap that I have referred to in the paragraph above, it is equally clear that her attitude to the father has been longstanding. In this regard, I refer to some other text messages that the mother sent to the father in 2009. They are vile and do not give me any confidence that she respects the father’s place in the child’s life. For example:
03/06/09 @ 20:21 - Like mother like son. I remember feeling sick just being with u. Now stop making my son sick u ultimate cunt. And y haven’t you killed yourself like your brother yet. I wait with so much anticipation for that happy day.
19/06/09 @ 17:23 - You’re a fucken disgrace. U really should just go kill yourself like your loser brother so my son doesn’t have to grow up eventually realising what a scum you are. And mark my words he will know
23/06/09 @ 19: 11 - Just in case I haven’t mentioned it today u r the biggest cunt on earth
23/06/09 @ 19:13 - I repeat just in case I haven’t mentioned it today u r the biggest cunt on earth
Of particular concern is the fact that on the 19 June 2009 the mother was indicating quite clearly that she intended to influence the child in relation to his attitude to his father.
I also note that when he was asked, the father was prepared to concede that the mother was a good mother. However, when the mother was asked whether she could say anything nice about the father, all that the mother could say was that he was very good to his family and friends.[46]
[46] Transcript: Day 2 page 56)
The likely effect of any change in the child’s circumstances
I have considered this factor carefully. My conclusion is that the child would suffer if there was to be any significant reduction with his time with his father. That is because he has the worthwhile relationship with his father that I have referred to above, and because I have no confidence that the mother would encourage that relationship during any increased time that the child spent with her. Indeed, my concern would be that the mother would deliberately undermine the child’s relationship with the father.
Both parties agreed that there should be a rationalisation of the time that the child spends with his father in order to reduce the number of changeovers. While that is one of the very few things that the parties agree upon, it is sensible because it will reduce the chances of conflict between them. It is quite clear from the evidence that a reduction in the conflict between the parties can only be in the best interests of the child. For that reason, I am of the view that there should be a reduction in the number of handovers in the fortnightly cycle, and whenever possible, changeovers should be at the start and end of the child’s school day.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
The parties live within close proximity of each other and have been able to manage frequent changeovers. The Orders that I propose to make will reduce the number of changeovers so this factor is not of concern.
The capacity of the parents to provide for the child’s needs
I have no doubt that both parents have the capacity to provide for the child’s physical and educational needs. Indeed, Ms K noted at paragraph 53 of the Family Report that both parents were particularly focused on the child’s academic ability and that during the observed sessions they prioritised his intellectual capacity even though this appeared to occur at the expense of listening to his wishes. (In that regard, I note that in the Family Report there are three references to times when the child was with one or other of his parents and the child’s desire to draw on the whiteboard was not given the priority that he thought it deserved!).
I have some concerns about the parties’ capacity to provide for the child’s emotional needs at times. In this regard, it is clear to me that this child is getting caught in the cross-fire of the adults’ dispute. The child’s emotional need for both parents is at times getting lost in that cross-fire. In my view, that applies more to the mother not being aware of the child’s emotional need for his father than vice versa.
The parties will need to be quite vigilant in their dealings with the child in relation to appreciating his emotional need for both of his parents.
The attitudes of the parents to the child and to parental responsibilities
This section 60CC consideration often overlaps with the consideration referred to immediately above. It does so in this case and I do not need to say more about it.
Any family violence and family violence orders
As can be seen from what I have said above, I am of the clear view that the mother has exaggerated the issue of violence (and minimised her own culpability in the volatility of the parties’ relationship).
Having said that, I do not seek to underplay the effects that family violence can have upon children. Those effects are becoming increasingly well known in the community. However, knowledge of those effects is not something that is completely new to courts dealing with family law disputes involving children. For example, in Blanch v Blanch and Crawford Mullane J said:[47]
His Honour’s discussion of the violence allegations appears to have largely overlooked the wide and more serious dangers that an abusive parent presents to children than the obvious danger of physical harm. In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hyper vigilance from witnessing abusive behaviour of a parent. Such effects present a threat to their emotional development. Probably the worst danger to children is the role model that a violent parent provides…..
[47] Blanch v Blanch and Crawford (1999) FLC 92-837 at page 85,748
As I have stated above, I am of the view that what needs to be avoided as much as possible in this matter is contact between the father and
Mr S at times of changeover. As I have said, I will be making an orders in relation to that.
I note that there were no Family Violence Orders in existence at the time of the hearing.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the child
Obviously I will make orders that I think should not lead to further litigation in relation to this child. However, I am of the view that if the enmity between the parties continues (and the child continues to be caught in the cross-fire) it is almost inevitable that there will be further litigation between them.
I doubt that there are any orders that I can make that would prevent that if the parties’ do not “wake up to themselves” and realise how much their dispute is hurting the child that they love so much. In this regard, I am particularly concerned that the mother may not have the insight to see what her attitude to the father is doing to her child. I hope that she can prove me to be wrong about that.
I will be ordering that the parties each attend and complete a post-separation parenting course in the hope that it will help the parties avoid further litigation.
Equal shared parental responsibility and spending time
Both parties seek an order for equal shared parental responsibility and I propose to make such an order, notwithstanding that the parties need to dramatically improve their relationship as between themselves. I am hopeful that their attendance at a post- separation parenting course will assist them in that regard.
If I make an order that the parents are to have equal shared parental responsibility for the child, I must consider whether spending equal time with each of the parents would be in the best interests of the child and be reasonably practicable. To his credit, the father has realised that is not a realistic proposition at this stage of the child’s life.
However, it is a practicable proposition for the child to spend “substantial and significant time” with him in the manner that he proposes. The orders that I make will therefore be essentially along the lines proposed by the father. However, I will make some variations to suit my particular drafting style.
Costs
I heard this matter in Melbourne but I will be delivering this decision in Launceston. My Associate will be able to provide digital copies of these Reasons and the Orders to the parties’ lawyers by electronic means today.
If any costs application is to be made, it should be made within 28 days in accordance with Rule 21.02(1)(b) of the Federal Magistrates Court Rules 2001. That can be done by contacting my Associate to arrange for a listing of the matter, to be heard by telephone or video link if necessary in accordance with Division 5 of Part 6 of the Federal Magistrates Act 1999 (soon to be known as the Federal Circuit Court of Australia Act 1999). The Melbourne Registry file will therefore be retained in Launceston until at least the expiry of that 28 day period.
Having said that, I feel that I should make some comment about a Tax Invoice for $767.00 (excluding GST) that was handed to the Court by Ms B when she concluded her evidence. It is Exhibit “M3” and it is addressed to the father’s solicitors, Victoria Legal Aid, purporting to be a charge for “Court fee – Covering the cost of Psychologists time”. My comments are as follows:
·The mother “hired” Ms B and chose her after consulting Google.
·The father was not consulted about the involvement of Ms B and made it plain that he objected to her involvement in the matter. Notwithstanding that the mother’s solicitor was complicit in her retainer by the mother being continued.[48]
·The mother’s solicitor filed two affidavits by Ms B. One of those affidavits quite improperly described her as a “Single Expert Witness” for the purposes of Division 15.5.2 of the Family Law Rules 2004. When questioned, Ms B made it quite clear that she had not been told by the mother’s solicitor that she was not a Single Expert Witness [49] (and I conclude from the tenor of her evidence that she was not ever told what a Single Expert Witness was).
·Ms B was originally subpoenaed to appear by the mother’s solicitor to give evidence and to produce her entire file.
·It was only after the second day’s evidence that the mother’s legal team decided not to rely upon her evidence. However, by then her affidavit/report had influenced Ms K in the manner that is alluded to above. At that point, the legal team for the father had no other choice but to subpoena Ms B to give evidence and on 13 February 2012 it was noted in the adjournment order I made that “the mother’s Counsel will take no issue with the right of the father’s Counsel to cross-examine Ms B if the solicitors for the father request the issue of a subpoena to Ms B to give evidence”.
·A further subpoena was issued on 13 March 2012 at the request of the father’s solicitors. However, Exhibit “F6” reveals that the mother’s solicitor had already written to Ms B on 16 February 2012 asking her to attend Court on 4 June 2012 irrespective of whether she received a subpoena or not.
·The involvement of Ms B in the proceedings served no worthwhile forensic purpose and only served to “muddy the water” significantly, thereby extending the hearing unnecessarily.
[48] See Exhibit “F3”
[49] Transcript: Day 4 at page 12
In view of what I have set out in the preceding paragraph, I can see no good reason why the father or his solicitors should be responsible for paying any expenses for Ms B. She and/or her employers should look to the mother or her solicitor for any recompense to which they may feel they are entitled.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 30 January 2013
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