ANDREWS & GRANT (No.2)
[2015] FCCA 953
•17 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANDREWS & GRANT (No.2) | [2015] FCCA 953 |
| Catchwords: FAMILY LAW – Parenting – Child aged 7 years – Child has lived primarily with Mother since birth – Mother’s persistent disregard for Court Orders – Mother’s inability/unwillingness to support Child’s relationship with Father – Child’s exposure to unremitting conflict over many years – deficiencies in each household – expert recommended significant change required – Child moved to Father’s primary care. |
| Legislation: Family Law Act 1975, ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Dundas & Blake [2013] FamCAFC 133 H v W (1995) FLC 92-598 R and R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MR ANDREWS |
| Respondent: | MS GRANT |
| File Number: | SYC 3007 of 2009 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 13, 14, 15, 16 and 24 October 2014 |
| Date of Last Submission: | 24 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Schonell SC |
| Solicitors for the Applicant: | Mills Oakley Lawyers |
| Counsel for the Respondent: | Mr A. Givney |
| Solicitors for the Respondent: | Tilley Family Law & Mediation |
| Counsel for the Independent Children’s Lawyer: | Ms L. Boyle |
| Solicitors for the Independent Children’s Lawyer: | S Davitt Family Lawyers |
THE COURT ORDERS THAT:
All previous parenting Orders be discharged.
The Child X born (omitted) 2007 live with the Father.
The Father have sole parental responsibility for decisions concerning X’s long term care and welfare.
X spend time with the Mother as follows:
(a)During school terms, each alternate weekend from after school on Friday until before school on Monday (or Tuesday if Monday a public holiday) commencing on Friday 24th April 2015.
(b)For the second half of the school holidays at the end of Terms 2 and 3 in 2015 and in Terms 1, 2 and 3 in all odd numbered years thereafter, from 5.00p.m on the day which falls on the middle day of the holidays until 5.00p.m on the afternoon before the school term recommences, or 5 p.m. before X is required to recommence school if the first day of the school term is a pupil free day.
(c)For the first half of the school holidays at the end of terms 1, 2 and 3 in 2016 and all even numbered years thereafter, from after school on the last day of the school term until 5.00p.m on the day which falls on the middle day of the holidays.
(d)For the second half of the Christmas school holidays in 2015/16 and in alternate years thereafter, and for the first half of the Christmas school holidays in 2016/17 and alternate years thereafter.
(e)From 4.00p.m on Christmas Day until 6.00p.m on Boxing Day in 2015 and in all odd numbered years thereafter noting that X will spend time with the Mother in the first half of the 2016/17 school holidays and will therefore spend Christmas Day until 4 p.m. with the Mother in all even numbered years.
(f)On the Mother’s Day weekend from Friday after school until Monday before school if X is not already spending time with the Mother on that weekend.
(g)On X’s birthday, from after school or 3.00p.m if a non-school day until before school the following morning or 9.00a.m. if a non-school day noting that if X is already with the Mother on her birthday in accordance with these Orders, this order will not apply, and X will not spend time with the Father on that birthday.
(h)On the Mother’s birthday, from after school or 3.00p.m if a non-school day until before school the following morning or 9.00a.m. if a non-school day noting that if X is already with the Mother on her Mother’s birthday in accordance with these Orders, this order will not apply.
(i)On the Maternal Grandmother’s birthday, from after school or 3.00p.m. if a non-school day until before school the following morning or 9.00a.m. if a non-school day noting that if X is already with the Mother on her birthday in accordance with these Orders, this order will not apply.
(j)At other times as agreed in writing.
The school holiday periods will be those that apply at (omitted) school, or at the school X is attending at the relevant time.
For the purposes of calculating the changeover day in school holidays, the last day of the school term will be the first day of the holiday period (Day 1) and the last full day before the new term recommences, or the day after if the day before the term commences is a pupil free day will be the last day (last Day). The midpoint of the school holidays will be 5.00p.m on the middle day. If there are an even number of days in the school holiday period, the middle day will be the first of the middle days.
When the Easter period does not fall in the school holidays from the year 2017, X spend that Easter period with the parent with whom she did not spend the Easter period in the previous year.
Notwithstanding any other Order, X spend time with the Father as follows:
(a)From 4.00p.m Christmas Day until 6.00p.m. Boxing Day in 2016 and in all even numbered years thereafter noting that X will be living with the Father in the first half of Christmas school holidays in 2015 and in all odd numbered years thereafter, so X will spend Christmas Day until 4.00p.m. with the Father in all odd numbered years.
(b)From after school on the Wednesday immediately before the Easter weekend in 2016 until before school on the first school day after the Easter weekend.
(c)On the Father’s Day weekend from after school Friday until before school Monday but if the Father’s Day weekend is the Mother’s usual weekend, X spend time with the Mother on the following weekend in substitution for the Father’s Day weekend noting this will mean X has two consecutive weekends with the Mother.
Except as otherwise provided, alternate weekend time be suspended during all school holiday periods and recommence on the second weekend of every new school term in 2015 and all odd numbered years and on the first weekend of every new school term in 2016 and all even numbered years.
When not at school, changeovers occur at the (omitted) Park kiosk, when, until X attains 10 years, each party will arrange an agent to attend changeovers on that party’s behalf, such agent for the Father not to be Ms M, and neither party shall attend changeover at (omitted) Park before X attains 10 years.
The Mother forward X’s current passport to the Father’s solicitors within 14 days.
The Father be permitted to obtain and renew a passport for X without the consent or signature of the Mother and, unless the Father has agreed to X travelling overseas with the Mother (when he will provide her passport to the Mother for the period of travel) the Father will hold X’s passport.
The Father is permitted to remove X from the Commonwealth of Australia for the purposes of holidays up to three weeks during times when she is living with him on condition that the Father provides the Mother with not less than 6 weeks written notice of his intention to travel with such notice to include details of destination and period of travel.
The Father provide return ticketing details to the Mother, a full itinerary and contact details for X for the duration of the holiday no later than 14 days prior to travel.
Except with the written consent of the Father, the Mother, by herself, her servant or her agent is hereby restrained from removing or attempting to remove the Child X born on (omitted) 2007 (female) from the Commonwealth of Australia until she attains the age of 16 years.
The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit the Mother from removing or attempting to remove the said Child from the Commonwealth of Australia.
Until the Child attains the age of 16 years, the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
In the event X travels overseas with the Mother in accordance with these Orders, the Mother return X’s passport to the Father within 7 days of her return.
The Father facilitate X’s attendance at therapy with Dr L, psychotherapist, or as otherwise recommended by Dr L or by X’s school, and each party attend upon Dr L (or other therapist recommended by Dr L) as requested by Dr L or the recommended therapist.
In the event the Mother is consulting a therapist, the Mother forthwith notify the Independent Children’s Lawyer of the name and contact details of her therapist, and the Independent Children’s Lawyer provide a copy of these Orders and Reasons for Judgment to the Mother’s therapist.
The Father ensure that Ms M does not consume alcohol when X is in his care.
Except as otherwise provided, each party be restrained from attending X’s school during periods X is in the care of the other party, and the Father use his best endeavours to ensure Ms M does not attend the school when X is in the care of the Mother.
For a period of 18 months, each party be restrained from attending any school event to which parents are invited or extracurricular activity (inside or outside school) in which X is involved, unless X is in that party’s care in accordance with these Orders.
When the period of 18 months referred to in Order 21 has expired, the parties may both attend events at the school to which parents are invited, or extracurricular activities, when the parties shall maintain a respectful distance from each other and each other’s partner, and shall ensure X observes that they behave in a respectful manner towards each other.
The Mother is authorised by these Orders to obtain duplicate copies of X’s school reports and school photograph order forms.
Each party be restrained from attending the residence of the other unless invited to do so in writing.
The parties advise each other urgently in the event X is involved in any accident which requires attendance at a hospital with such advice to include details of the accident and/or injury, details of the treating hospital and the treating medical practitioner.
Each party advise the other if any medication has been prescribed for X.
Each party advise the other of any specialist appointments regarding X and the outcome of any consultations.
Each party keep the other advised of his/her residential address and contact telephone numbers.
The parties communicate issues of an urgent nature by mobile telephone and otherwise communicate by email.
Each party be restrained from telephoning X during the time when she is living with/spending time with the other party on condition that the party caring for X ensures X telephones and speaks to the other party on at least one occasion each week.
Each party be restrained from:
(a)Denigrating the other or the other’s partner or family members in the presence or hearing of X;
(b)Coercing X to negotiate changes to these parenting Orders on behalf of either party;
(c)Involving X in the parenting arrangements;
(d)Discussing the family law proceedings with X.
(e)Using X as a messenger between them.
The Father provide a sealed copy of these Orders to the Senior and Junior (omitted) School Prinicipals,
The Independent Children’s Lawyer provide a sealed copy of these Orders and Reasons for Judgment to Dr L by the close of business today.
The Father forthwith organise a consultation between X and Dr L as soon as possible, for X to have the orders explained to her.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Andrews & Grant (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3007 of 2009
| MR ANDREWS |
Applicant
And
| MS GRANT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting case concerning the parties’ only child X, who had her 7th birthday during the course of the 5 day trial. X has lived primarily with the Mother since her parents’ separation when she was 5 months of age. The parties’ relationship was unstable from soon after their marriage, and the Father formed a relationship with his present wife before the parties finally separated. Since then, the parties’ relationship has been acrimonious which has resulted in X being repeatedly exposed to a damaging level of conflict throughout her life.
The Court expert, Dr C, consultant psychiatrist, said[1]:
X has had a very unfortunate start to her life because of her exposure to years of disagreeable behaviour by her parents, which has been noxious to her development…the family circumstances have undoubtedly had a detrimental effect on her, possibly on her cognitive development but most certainly on her emotional development.
Dr C said “something has to change for this child. I just really hope it’s not too late.”[2]
[1] Report of Dr C dated 25 July 2014 at page 21
[2] At page 33 of 16 October 2014 transcript of proceedings
The Mother has repeatedly breached Court orders providing for X’s time with the Father. This has resulted in X missing out on a regular, predictable, consistent pattern of time with her Father and considerable uncertainty in her parenting arrangements. One of the significant issues in this case is whether the Mother is likely to breach Court orders into the future, whatever orders are made.
In her latest report, Dr C recommended that X spend equal time, week and week about, with each party. However, in cross examination, Dr C said she was not wedded to that recommendation. She said if the Court determined that equal time was not in X’s best interests, she would recommend that X live primarily with the Father, not the Mother. Further, Dr C said that if the Court found that the Mother was likely to continue to breach Court orders, she would recommend that X live primarily with the Father.
Each party and the Independent Children’s Lawyer were represented by counsel, the Father by Mr Schonell SC, the Mother by Mr Givney and the Independent Children’s Lawyer by Ms Boyle.
Background facts
The parties commenced living together in 2003 and married on (omitted) 2004. In late January 2007, the parties separated for the first time, when the Father moved in with his present Wife, Ms M. The parties attempted reconciliation in (omitted) 2007 as a result of the Mother’s pregnancy with X, and X was born on (omitted) 2007. The parties separated on a final basis in March/April 2008. Their divorce became final in August 2009.
The Father, aged 43 years, lives with Ms M, aged 44 years in an apartment they purchased in (omitted). They married in (omitted) 2010. Both are (occupation omitted). The Father specialises in (omitted). Ms M specialises in the (omitted) area. She says she prepares (duties omitted), and is generally more available than the Father during the working week.
The Mother, aged 41 years, lives with X in a two bedroom apartment in (omitted), approximately 50 metres from the maternal grandmother’s residence, and close to (omitted) school where X attends. She holds a (qualifications omitted) and has been a (occupation omitted) for 15 years. The Mother is currently employed in (omitted) 3 days a week from 9.00a.m. until 5.00p.m. The maternal grandmother collects X from school and takes her to the Mother’s home when the Mother is working. At the commencement of the hearing, the Mother was proposing to relocate to the more affordable (omitted) area, and hoped to purchase a three to four bedroom home with a garden. She proposed that X be enrolled in a less academically challenging school on (omitted). However, at the end of the hearing, the Mother said she supported X remaining at (omitted) School and would therefore remain living in that area.
At the time of hearing, X was in Year 1 at (omitted) School where she started at pre-school in early 2012. She was attending Early Bird classes at school 3 mornings a week, speech therapy at school and swimming lessons on Fridays after school.
Current parenting arrangements
At the time of hearing, X was spending time with the Father on alternate weekends from Friday after school until Monday before school and from after school Tuesdays until Wednesday mornings before school in alternate weeks during school terms. At the conclusion of the hearing, those orders were varied by consent to provide for X to spend time with the Father from Friday after school until Wednesday morning each alternate week during term time. X is spending approximately half each school holiday period with each party.
Orders sought by the Father
In his Amended Application filed on 22 September 2014, the Father seeks Orders for sole parental responsibility, and for X to live with him. He seeks Orders for X to spend time with the Mother during school terms on each alternate weekend from after school Friday until the commencement of school on Mondays, for the second half of the (omitted) short school holiday periods, for 2 weeks during the Christmas school holidays and on special occasions. The Father seeks an Order permitting him to take X overseas on holidays, but seeks a restraint on the Mother removing X from Australia without his prior written consent. The Father seeks restraints against the Mother attending X’s school, or any extra-curricular activity, without his prior written consent, and seeks an Order restraining the parties from telephoning X when X is in the other parties’ care.
Orders sought by the Mother
In her Response to an Application in a Case filed on 12 December 2013, the Mother sought orders to reduce X’s time with the Father by excluding the alternate Tuesday nights and limiting her time during school holidays to 4 nights every alternate weekend. She wanted changeover to occur at (omitted) or inside (omitted) Police station. At interview with Dr C in June 2014 and in her affidavit sworn 22 September 2014, the Mother said she wanted to relocate to the (omitted) during the 2014/15 Christmas school holidays. In her Amended Response filed on 7 October 2014, the Mother sought Orders for sole parental responsibility and for X to live with her. She sought Orders for X to spend time with the Father during school terms each alternate weekend from after school Friday until the commencement of school on Mondays, for one week in each short term school holidays, for two block periods during the Christmas school holidays and on special days. The Mother sought Orders for changeover to take place at X’s school, and otherwise at each parent’s residence. She sought restraints against the Father consuming any alcohol or non-prescription drugs during any periods of time X is in his care, or 12 hours prior, and an order that the Father ensure that his wife does not consume alcohol or non-prescription drugs during any period of time X is in the Father’s care, or 12 hours prior. The Mother sought an Order permitting each parent to take X overseas subject to certain conditions and for the Mother to hold X’s passport.
On 24 October 2014, the final day of hearing, the Mother changed her position. She no longer wanted to relocate to the (omitted). She no longer sought final orders. She sought orders on an interim basis for a period of approximately 12 months, for equal shared parental responsibility, for X to live with her Father from Wednesday to Monday each alternate week and for alternate 2 week blocks in the Christmas school holidays, and from 4 p.m. Christmas Day to 4 p.m. Boxing Day. In the alternative to her proposal for equal shared parental responsibility, the Mother sought an order for the Father to have sole parental responsibility for X’s choice of school.[3] She proposed that both parties be permitted to attend school events at (omitted), but that she be restrained from attending and remaining at X’s school for 1.5 hours before the start or conclusion of the school days X is in her Father’s care.[4] She proposed changeovers outside the school occur at (omitted) Park and that neither parent attend changeovers. The Mother offered an undertaking to the Court to attend therapy with Ms G, psychologist, at least fortnightly for a period of 6 months. The Mother sought an Order permitting each parent to take X overseas subject to certain conditions and for the Mother to hold X’s passport.
[3] At page 78 of 24 October 2014 transcript of proceedings and Exhibit 26
[4] Exhibit 26
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks final orders[5] (substantially agreed by the Father at the end of the hearing) for the Father to have sole parental responsibility, for X to live with the Father, for X to spend alternate weekends with the Mother from Friday after school until Monday morning, including the Mother’s Day weekend, excluding the Father’s Day weekend, and for half school holiday periods. The Independent Children’s Lawyer proposes that the Mother be restrained from attending at X’s school (apart from changeovers) without the prior written consent of the Father, and from attending any extra-curricular events for X outside X’s time with her, without the prior written consent of the Father. The Independent Children’s Lawyer proposes that the Father be permitted to renew a passport for X without the Mother’s consent, that the Father hold X's passport, and that the Mother be prohibited from taking X outside Australia without the Father’s written consent. The Independent Children's Lawyer seeks an order for the Father and Ms M to engage in family therapy with Dr L, child and adult psychotherapist, and for X to attend individual or family therapy as recommended by Dr L. The Independent Children's Lawyer seeks orders in relation to exchange of information about X.
[5] Exhibit 25
Recommendations of Dr C
Dr C, consultant psychiatrist, prepared two reports for the Court. The first report was in early 2010 when X was two and a half years of age, and the second report was in mid-2014 when X was almost 7 years.
In her 2010 report,[6] Dr C recommended that X spend unsupervised time with the Father and Ms M on condition neither consumed alcohol before or during X’s time with them for 5 years. She recommended X commence overnight time with the Father at the age of three years, two nights a week to start after 3 months, increasing to 3 nights each week by aged 4 years (6 nights a fortnight). Dr C recommended that the Father and Ms M continue in psychotherapy for a minimum period of two further years. Dr C recommended that changeovers occur without the parents coming into direct contact[7] and that the Father undertake a parenting course such as Triple P.
[6] Exhibit 20
[7] At page 12 of 2010 report – Exhibit 20
Final orders were made by consent in March 2011, providing for X to spend considerably less time with the Father than recommended by Dr C in her 2010 report. Those March 2011 orders were never strictly implemented.
At further interview with Dr C in mid-2014, the parties gave different factual accounts of what had occurred since 2010, each party highly critical of the other’s conduct.
In her report dated 25 July 2014, Dr C raised concerns about the parenting capacity of each party, and recommended a week about arrangement. This was despite her view that generally, in a high conflict situation like this one, and with a child of X’s young age, a parallel parenting arrangement week and week about would not be recommended. In cross-examination, Dr C said she was not wedded to an outcome of week and week about but[8]:
I strongly believe change has to happen, that what has been happening can’t continue… I really have many concerns about [the Mother’s] parenting and her difficulties with being able to reflect on how she parented…there were …reservations about [the Father’s] household as well.
[8] At page 13 of 16 October 2014 transcript of proceedings
In cross examination Dr C said:[9]
I was conscious of her [X”s] age and the inadequacies of both families….the child’s attached to her mother, and I’m very concerned not to interrupt attachments…if it’s possible. ..
I was trying to support the child’s relationship with all three of her parents, and hoped that – that she would be supported in this change by the parents being supported in their turn by the therapy with Dr L” [sic].
[9] Ibid at page 32
Dr C said that if the Court did not support an equal shared parenting arrangement, she would favour X living with the Father, not the Mother. Dr C was impressed by the Father and Ms M’s commitment to ongoing therapy with Dr L, and was confident the Father would ensure X received appropriate therapeutic support from Dr L. Dr C said it would be helpful for the Father, Ms M and X to engage in family therapy with Dr L. She did not believe that the Mother would support X’s engagement with Dr L.
I asked Dr C what her recommendation would be if the Court came to the conclusion that the Mother is likely to continue to breach Court orders. Dr C said that in those circumstances, she would recommend that the Court implement the Father’s proposal, to protect X from further exposure to conflict and to protect X from the Mother’s undermining of X’s relationship with the Father and his wife.
Litigation history
On 29 May 2009, when X was 19 months old, the Father commenced proceedings in the Family Court seeking orders for X to spend time with him.
On 3 August 2009, the parties entered into consent orders for X to live with the Mother and spend time with the Father for 1.5 hours on 3 mornings a week under the supervision of the maternal grandmother.
On 7 September 2009, Orders were made by consent appointing Dr C as the single expert in the proceedings.
On 22 September 2009, final property Orders were made by consent.
On 1 March 2010, the first report of Dr C was completed.[10]
[10] Exhibit 20
On 13 October 2010, after a defended interim hearing, the Family Court made further interim orders for X to spend unsupervised time with the Father for 1.5 hours on two evenings a week, and 4 hours each Saturday, with a graduated increase to one overnight each week. The Father was restrained from consuming alcohol 12 hours prior to spending time with, and during all periods of time X spent with him. Each party was restrained from using any non-prescription drugs.
On 25 March 2011, the Family Court made final parenting Orders by consent providing for the parties to have equal shared parental responsibility, for X to live with the Mother and spend time with the Father on a gradually increasing basis. The Father says Dr L gave him advice as to the arrangements most likely to meet X’s needs and he largely followed that advice in agreeing to the March 2011 orders. From January 2012, when X was 4 years of age, the orders provided for X to spend each alternate weekend with the Father from after school/pre-school Friday until 4.00p.m. Sunday, and each Tuesday overnight, as well as time on special days and holidays as agreed. The Court noted that the parties intended to vary these Orders when X was 6 years old. As discussed later in these Reasons, the Mother wrongly assumed that the March 2011 Orders no longer applied once X was 6 years of age (her 6th birthday was on (omitted) 2013).[11] In any event, a few weeks after X’s 6th birthday, on 18 November 2013, the Court confirmed that the March 2011 orders as varied by orders made in April 2013, remained in force and directed compliance with those Orders.
[11] (omitted) school records state that the Father held the same view, although I find the evidence on this issue as a whole unclear as to what the Father believed at the time.
On 19 February 2013, the Father filed a contravention application in this Court, returnable before me on 11 April 2013. On that day, on an interim basis, this Court varied the Orders of 25 March 2011 such that X’s time with the Father would occur on each alternate weekend from 2.30p.m Friday until 8.30a.m Monday morning and in the alternate week, from 2.30p.m. Tuesday until 8.30a.m. Wednesday, (still 4 nights a fortnight but arranged differently). The Court ordered changeovers to occur at (omitted) school. The orders provided for X to have a block period of 5 days with the Father during the April 2013 school holidays, and a block period of four days in the June/July 2013 school holidays. The parties were directed to attend UNIFAM to assist them to develop the ability to communicate with each other directly and to improve their co-parenting skills.
On 31 July 2013, the matter was again before this Court. Orders were made for the parties to attend all UNIFAM appointments, and comply with Orders made on 11 April 2013 during the period of the adjournment.
On 18 November 2013, the Court noted that the parties had been unable to reach agreement as to school holiday time, and that X had not spent any time with the Father between 9 September 2013 and 15 October 2013. It was noted that there was an interim apprehended violence order in place against the Father for the protection of the Mother. The Father was granted leave to make an oral application to vary the 2011 orders (as amended by orders made in April 2013) and an Independent Children’s Lawyer was re-appointed. The Father’s contravention application was withdrawn and dismissed. On an interim basis, the Court ordered that any changeovers away from (omitted) take place in the foyer of (omitted) police station. The parties were mutually restrained from abusing/harassing one another or their respective families, denigrating one another by text message, discussing the proceedings with X or using her as an intermediary in relation to changes to parenting arrangements. The parties were ordered to facilitate X’s therapy with Ms L. An order was made for each party to comply with orders made 25 March 2011 as varied on 11 April 2013.
On 19 November 2013, the Father filed his application to vary the Orders made in March 2011 (and amended in April 2013) seeking equal shared parental responsibility and an equal time arrangement. On 12 December 2013, the Mother filed a Response seeking to retain the March 2011 orders except that time now occur with the Father on alternate weekends from 2.30p.m. Friday until 8.30a.m. Monday, and on four consecutive nights each alternate weekend during the 2013/2014 Christmas school holiday period.
On 20 December 2013, the Court made orders in relation to X’s time with the Father during the Christmas school holidays and the April, July and October 2014 school holiday periods. These Orders provided for X to spend time with the Father for two block periods totalling three weeks during the Christmas 2013/2014 school holidays, and for the second half of the April, July and October 2014 school holidays. The changeover location was changed from (omitted) Police Station to the café at (omitted) Park, when not at (omitted). An Order was also made in relation to X’s telephone time.
On 24 February 2014, the Court re-appointed Dr C as the court expert.
On 3 June 2014, the Court noted that the Mother’s legal representative had agreed to advise the Mother of the importance of complying with Court Orders and the potential ramifications of not doing so. The matter was listed for final hearing. Dr C was to prepare a second report.
On 18 July 2014, the Court ordered that neither party consult any therapist for X pending the outcome of the proceedings and placed X’s name on the airport watch list. The Mother was restrained from cancelling X’s enrolment at (omitted), or enrolling X at any other school. A schedule of precise times that X was to spend with the Father was annexed to the Orders.
On 21 August 2014, Dr C’s report was released.
On 22 September 2014, the Father filed an Amended Application seeking orders, inter alia, for him to have sole parental responsibility, for X to live with him and to spend time with the Mother on alternate weekends from Friday until Monday, half school holidays and on special occasions.
The final hearing commenced on 13 October 2014 and continued for 4 days before it was adjourned part-heard. The hearing was finalised on 24 October 2014, when judgment was reserved.
On 24 October 2014, the Mother’s counsel sought to admit a report dated 23 October 2014 from a psychologist, Ms G, whom the Mother had consulted for the first time in the 8 day period of the adjournment between 16 and 24 October 2014 on three occasions. Counsel submitted that the report would assist the Court to understand the Mother’s state of mind when she behaved in a manner seriously criticised by the Court expert. The Father’s counsel and counsel for the Independent Children’s Lawyer objected to the tender. Senior Counsel for the Father argued:
a)The Mother had been aware for many months of the various options available to the Court in relation to X’s parenting arrangements, and to the issues relating to her parenting capacity identified by Dr C;
b)The Mother’s counsel had earlier objected to the Independent Children’s Lawyer’s attempt to explore the Mother’s personality traits and psychopathology, during her cross examination of Dr C;
c)He had cross-examined the Mother as to whether she had attended any therapists since separation, and her answer was “no-one” with the exception of a therapist immediately consequent upon the separation itself; this report, if allowed in, would raise many more questions on that topic; and
d)There is an inherent unfairness to the Father in having to meet the report on the last day of the hearing, when the Mother has had ample opportunity over a long period, to adduce this evidence.
e)Extending the hearing by allowing the evidence would not be in X’s best interests.
Ms Boyle, counsel for the Independent Children’s Lawyer, also objected to the tender because:
a)The Mother had given much of her evidence;
b)The Mother had had a long time, since the release of Dr C’s report, to engage in therapy and to file evidence from her therapist;
c)If the report were admitted, Dr C may have to be recalled; and
d)The court could give very little weight to a report prepared after the Mother’s three sessions of therapy during the course of the trial.
I agreed with the submissions advanced by both the Father’s and the Independent Children’s Lawyer’s counsel and rejected the tender.
On 24 October 2014, the final day of hearing, the parties agreed to vary the orders in place at that time. Interim orders were therefore made, by consent, for X to spend time with the Father from after school Friday until before school Wednesday in each alternate week, and an order was made for X to attend upon Dr L for therapy on 28 October 2014 and thereafter as Dr L recommended. The Independent Children’s Lawyer was to provide copies of Dr C’s two reports to Dr L.
On 28 January 2015, the Father filed an Application in a Case seeking that the matter be relisted urgently. When the matter was listed late on the same day, the Application had not been served on the Mother in accordance with the Rules. The Court attempted to contact the Mother by telephone without success. The Husband then sought and was granted leave to withdraw his Application which was then dismissed.
On 18 February 2015, the Mother filed an Application to adduce further evidence which was listed before me at short notice on 6 March 2015. The Application was opposed by the Father. The Mother’s counsel, Mr Blackah, did not represent the Mother during the trial. Mr Blackah requested an adjournment to give him time to read the full transcript of the trial. The Father’s solicitor and the Independent Children’s Lawyer did not oppose a short adjournment. The matter was listed on 30 March 2015. On 17 April 2015, I made an order dismissing the Mother's application and published reasons.
On 26 March 2015, the Father filed an Application in a Case seeking orders in relation to the April 2015 school holidays. That Application was heard and determined on 30 March 2015 providing for X to spend the first half of the holidays (including the Easter period) with the Mother, but permitting the Father to attend X's Easter Hat Parade at (omitted) on Wednesday 1 April and restraining the Mother from attending at (omitted) at any time on that day.
Legal principles
These proceedings were commenced after 7 June 2012. Relevant amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore apply.
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that the Court must regard the best interests of the Children as the paramount consideration. To determine the Children’s best interests the Court must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations, when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.
Section 60CC(2A) requires the Court, in applying the primary considerations, to give greater weight to the consideration set out in section 60CC(2)(b).
The objects of the parenting provisions of the Family Law Act 1975 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 to, 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.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children. An additional object has been included to give effect to the Convention on the Rights of the Child.
Father’s mental health history
The Father has been in therapy with psychologist Mr S since 2008 on an approximately weekly basis. The Father describes himself as having poor self-esteem and a tendency to procrastinate. “I’ve not done what I should have in life.”[12] He describes his therapeutic support as “very helpful”.
[12] Cross-examination of Father on 13 and 14 October 2014
The Father acknowledges that he was drinking to excess in early 2008 but said this behaviour stopped when addressed in therapy. However, the Court was only provided with one record of the Father’s consultations with Mr S in June 2008[13] and the content of those notes was not clear. The Father said that Mr S was not prepared to jeopardise his therapeutic relationship with him by reporting to the Court.
[13] Exhibit 5
The Father was consulting Mr S twice a week at the time of Dr C’s interviews in January 2010. At that time, the Father claims to have been drinking moderately. He told Dr C that he had been drinking excessively in 2008 but had stopped when it was “pointed out he was being self-destructive.” He also acknowledged using cocaine but said he stopped after separation. Dr C did not assess him [in early 2010] as being alcohol dependent, but said he had used alcohol in a “defensive, destructive manner”.[14]
[14] Exhibit 20 at page 11 of 2010 report
In July 2014, the Father told Dr C that he drinks approximately once a week, and does not keep alcohol in his home. He said he has not used any other substances for 5-6 years. He would like X to live in an environment with no alcohol. Dr C said he needed to continue his individual therapy, which he has done, and continues to do.
The Father first consulted Dr L in 2010 because of his highly conflictual relationship with the Mother and his need for guidance on how to manage X in such an acrimonious environment. He and Ms M have taken advice from Dr L for a number of years in relation to parenting issues and continue to consult Dr L for guidance.
I accept the Father’s evidence on these matters. I am satisfied that the Father was using alcohol to excess when he first engaged Mr S, recognised his need for therapy, and has addressed that need by regular attendance on the same therapist over many years. I am satisfied the Father no longer drinks to excess and is genuinely committed to ensuring X is in a substantially alcohol free environment. I am satisfied that the Father has also acknowledged his need for professional help from an experienced child and family psychotherapist, for guidance on how to best support X, how best to manage her behaviour and on what parenting arrangements might best promote X’s welfare. I accept Dr C’s opinion that the Father’s has demonstrated considerable insight into his vulnerabilities generally, but in particular as a parent, by engaging in these therapies.
Father’s wife’s mental health history
Ms M gave Dr C a past psychiatric history of anxiety. She told her that in 1989 she saw a psychiatrist who treated her with medication (until 2004) and cognitive behavioural therapy. She had suffered sexual abuse by a neighbour as a child and had an abusive, alcoholic father.[15]
[15]Exhibit 8
Ms M deposes to difficulties in her relationship with the Father from 2006 because of the stress and sadness caused to the Father by the Mother’s refusal to allow him more than limited, intermittent contact with X. In July 2008, she began psychotherapy with Ms C twice a week. She has had periods of reliance on alcohol for stress relief and to block bad feelings. She claims to have been drinking 2-3 glasses four times a week in 2008, but to have stopped in 2009 when pregnant. However, she miscarried at 10 weeks and thereafter consumed a bottle of wine, three times a week, until New Year’s Day 2009.
In her 2010 report, Dr C says that Ms M was insightful into “her significant need for therapy and seemed committed to continuing”[16] and that the first step in recovery was acknowledging a problematic use of alcohol. She recommended that Ms M remain abstinent when X was in the Father’s care.[17]
[16] At page 11 of 2010 report – Exhibit 20
[17] Ibid
In August 2012, Ms M was admitted to (omitted) Hospital for 3 weeks for treatment of depression and alcohol dependence.[18] The discharge summary disclosed her drinking during the day in the prior 6 months, and binge drinking 1-2 bottles of wine in social situations. She reported depression and anxiety since she was 18 years of age. She had been undergoing IVF treatment unsuccessfully which had necessitated a reduction in her workload. However, Ms M said she found the treatment at (omitted) Hospital detrimental to her emotional health. The Father said that Ms M was abstinent from the time of her discharge from (omitted) Hospital until December 2012 when she started drinking excessively again.
[18] Exhibit 8
On 8 April 2013, Ms M was admitted to the (omitted) Clinic substance abuse unit for “detoxification and rehabilitation to achieve abstinence” under the care of Dr B, consultant psychiatrist.[19] Ms M said she was depressed and abusing alcohol and the Father confirmed that she had been drinking alone at lunchtimes. She was prescribed an anti-depressant by Dr B, and stopped drinking. As recommended by her treating medical team, she attended Alcoholics Anonymous for 2-3 months as well as the (omitted) Drug and Alcohol day programme. She left the drug and alcohol day programme on 31 August 2013[20] “to focus more on underlying mood and anxiety problems.” The Father said she was much improved after her discharge from (omitted) Clinic.
[19] Exhibit 7
[20] Exhibit 7
However, having been abstinent from alcohol use from April 2013 until early 2014, in early February 2014, having decided not to proceed again with further IVF treatment, Ms M lapsed into alcohol use for one and a half weeks before returning to abstinence. The Father has not seen her drink since February 2014 and has never seen her drink while X has been in their care. Ms M takes anti-depressant medication, and reports to Dr C in June 2014 that although she still experiences anxiety, she is no longer depressed. She said the Mother’s “physically and verbally abusive” behaviour remains a “constant stressor”[21] but despite this, Ms M told Dr C that she had “never had such consistent happiness before.”[22]
[21] Exhibit 7
[22] At page 13 of 2014 report – Exhibit 20
Ms M says that she and the Father have experienced stress, pain and disappointment from their desire to create a better family life for X and to have another child. By mid-2012, she had had four miscarriages, several IVF treatments, a failed embryo implantation, as well as five operations. She had lost a family member who had been her primary carer. She says she understands she has been diagnosed with “alcohol dependence”[23] and is committed to maintaining abstinence. She has not had a drink since February 2014, and prior to that had not had a drink for a number of months. She is aware that consuming alcohol does not help anxiety. She continues to consult Ms C twice a week, takes medication for anxiety and intends to continue in therapy. She tries to attend yoga classes and to meditate. Ms C has taken only brief notes of consultations, because Ms M did not want Ms C’ notes produced on subpoena if the Father was ever involved in litigation. The Mother’s counsel was critical of the Father’s failure to provide evidence from Ms M’s (and his own) treating therapists. Mr Givney submitted that the Court should conclude that there were “underlying issues being masked”.[24] I did not reach that conclusion.
[23] At paragraph 114 of affidavit of Ms M sworn on 22 September 2014
[24] At page 149 of 24 October 2014 transcript of proceedings
Dr C said that excessive alcohol consumption was a “maladaptive way of coping with trauma in her life.” She spoke to Ms C about Ms M’s progress. Dr C said that therapy has helped Ms M to develop more healthy adaptive strategies for coping with stress and distress. Dr C says the appropriate and sensible approach is total abstinence for the rest of Ms M’s life.
I have given careful consideration to Ms M’s mental health history. I am satisfied that Ms M has demonstrated a genuine commitment to addressing complex past issues in her life, including alcoholism and the inability to have her own child. I find she has shown considerable determination and courage by maintaining her strong relationship with the Father and a responsible job as a (occupation omitted). However, I also accept Dr C’s opinion that Ms M remains vulnerable to relapse and needs to remain abstinent for the rest of her life.
Mother’s mental health history
Apart from early after the parties’ separation, the Mother says she did not consult a therapist. As already noted, the Mother did consult a therapist, Ms G when the hearing was adjourned part-heard between the 16 and 24 October 2014.
The Father raises concerns about the level of the Mother’s alcohol consumption and her illicit drug use. At interview with Dr C in 2010, the Father said the parties, when living together, used to binge drink on weekends and use cocaine. He said the Mother introduced him to cocaine “as she knew dealers”.[25] He suspected the Mother may have used cocaine on one occasion after X was born. The Father described occasions during the course of these proceedings when he observed the Mother intoxicated in X’s presence. These occasions are referred to later in these Reasons.
[25] At page 8 of the 2010 Dr C report – Exhibit 20
Evidence concerning each party’s conduct
X has never known life without her parents in conflict. For the whole of her 7 years, her parents’ hostile exchanges have played out in front of her. Dr C says that X is acutely aware that she has been the centre of the conflict between her parents for the whole of her life. Dr C has made it clear to the parties and to this Court that X’s circumstances must change, and change now, for her to have any chance of normal development.
Each party’s affidavit material is replete with allegations critical of the other’s behaviour. Given X’s serious predicament, I have found it necessary to set out many of these allegations, and to make findings about them.
Father’s allegations about the Mother
The Father has long held the view that the Mother was doing her best to destroy X’s relationship with him. He has feared he would never be a major part of X’s life.[26] The Father alleges that from the time of their separation the Mother has sought to limit his involvement with X. He asserts that the Mother has deliberately breached Court orders time after time, and has constantly interfered with or prevented X ordered time with him. The Father alleges that the Mother has repeatedly denigrated him and his wife to X and cruelly involved her in disputes between the parties, causing X unremitting confusion and distress.
[26] At page 2 of 2010 report – Exhibit 20
The Father believes that if the Mother had her way, X would have limited time with him, and nothing to do with Ms M.
The Father alleges that before Court orders were made, the Mother would permit X to spend only limited intermittent time with him, which is the reason he commenced Court proceedings in May 2009. Once the first orders were made in August 2009, providing for the maternal grandmother to supervise, the Father alleges that he would be told that the grandmother was not available to provide supervision on many occasions, so the Mother would substitute herself.[27] Because of their conflict (particularly in relation to the issue of supervision) and their generally poor communication, X’s time with him was seriously disrupted.
[27] At paragraph 16 to 17 of Father’s affidavit filed on 22 September 2014
In November 2009, the Mother accused the Father of making sexual advances towards her, and stopped contact altogether, an allegation vehemently denied by the Father. The Father made it clear to the Mother that he would no longer accept supervision by the Mother and would only spend time with X when the maternal grandmother was available. On occasions when the grandmother told the Father she would not be supervising the Father’s time, the Father did not attend to see X. The Mother then accused the Father of failing to turn up. The Father then attended each Saturday morning but there was never an answer at the Mother’s door. On Christmas Day 2009, the Father arrived with presents for X, including one suggested by the Mother, but the Mother did not answer the door and the Father did not see X on Christmas Day. During June/July 2010, X’s time with him was still irregular. In August 2010, the Mother alleged “you gave up your rights to see X.”[28] The Father deposes to occasions when X would be calling out “dada, dada” from inside the home, but the Mother still refused to let her see him.[29]
[28] At paragraph 45 of Father’s affidavit sworn on 22 September 2014
[29] Ibid
Despite the orders, the Father alleges that the Mother refused to allow X to spend time with him on many occasions, including her 3rd birthday in (omitted) 2010,[30] when he organised a trampoline to be delivered to X, at the Mother’s request. While further interim orders were made by the Family Court on 13 October 2010 providing for X to spend time with the Father several times a week, the Father deposes to the Mother only complying with the orders when it suited her, and to her being particularly obstructive in school holidays. He says changeovers were problematic unless the maternal grandmother facilitated. He described ‘dramas’ when he was due to collect X from day care as to whether Ms M could collect X. The Father says he did not bring contravention proceedings because he was trying to keep the peace, and considered it best to await the final Court hearing.
[30] At paragraph 53 of Father’s affidavit sworn on 22 September 2014
The Father alleges that the Mother has called the police when the Father has been 10 minutes late returning X at “arbitrary” times imposed unilaterally by the Mother and threatened to call police if he has been one minute late.[31] The Mother called police when the Father took X out of Sydney to the (omitted) for a weekend in 2012 without telling her, despite there being no requirement on him to do so. X was present when the police called. The Father alleges that in the June 2013 holidays the Father and Ms M took X to Queensland. The Mother would not permit them more than 4 days away and called the police when they changed their hotel without telling her.[32] The Mother would not permit X to attend the paternal great aunt’s birthday party. The Mother prevented X greeting the Father and Ms M at X's Easter hat parade.
[31] At page 3 of 2014 report – Exhibit 20
[32] Ibid at page 4
The Father alleges that the Mother has been highly derogatory of Ms M and has persistently denigrated both him and Ms M in correspondence and in front of X, and has made it crystal clear to X that she despises them both. In particular:
a)X has said to Ms M “Mummy says Daddy left me because you made him.”[33]
b)The Mother has kept X home from school when Ms M was due to assist with reading at the school.
c)On 5 May 2014 the Mother emailed (omitted) School asking staff to prohibit Ms M from helping with reading, despite X’s wish that she participate.[34]
d)X has said many times “Mummy hates Daddy”. When Ms M has said “does that make you upset” X has responded “No, it makes me scared because Mummy said one day she’s going to kill Daddy.”[35] X has told Ms M that she was “not scared Mummy gets angry with Dad… scared Mummy will kill Dad. She always says one day I’ll kill your Dad.”[36]
e)The Mother questions X after her time with the Father, accepting X’s reports as 100% reliable, whatever the Father might say in response to the Mother’s complaints. For example, the Mother believed that the Father and his wife were drinking around X; and the Mother believed X was in therapy with Mr S despite the Father’s explanation to the contrary.[37]
[33] At paragraph 54 of affidavit of Ms M sworn on 22 September 2014
[34] Exhibit 22
[35] At paragraph 55 of affidavit of Ms M sworn on 22 September 2014
[36] At page 11 of 2014 report – Exhibit 20
[37] Exhibit 12
The Father alleges that telephone communication is problematic for X. In particular, he alleges:
a)The Mother calls and texts incessantly if calls are not answered immediately when X is with him, and the Mother's messages often becoming abusive.
b)The Mother has involved the police on two occasions because of unanswered calls.
c)On 14 July 2013, there were 25 missed calls from the Mother to the Father in a period of 2 hours when X was holidaying with him and Ms M in (omitted).
d)During her 8 day holiday with the Father and Ms M during the April school holidays in 2014, the Mother frequently called and texted X “miss you” despite an order she should only call once every 4 days. While speaking to her Mother, X “looked regressed, lying down, (using a) baby voice (to say) “miss you too”.[38]
e)On 24 April 2014 the Mother repeatedly said to X on the phone “Mummy misses you so much… why don’t you ask Daddy to bring you home? He will if you ask him” causing X confusion and distress.
f)Until changeovers occurred at (omitted) School, the Mother did not pack what X needed for school on Mondays on weekends X was with the Father, so the Father was left with no choice but to go to the Mother’s home over the weekend to collect necessary items for X. On Sunday 5 May 2013, when X was with the Father and due to remain with him until the Monday morning, he and X went to the Mother’s home to collect her uniform. The Father says the Mother was “drunk”. As they were leaving, the Mother grabbed X into her arms and said “X can’t go she needs her mummy. Mr Andrews 3 nights away from me is too long.” She looked at X and said “she needs her mummy, yes you do.” The Father says he left X with the Mother fearing there would otherwise be a “drama” in front of X.[39]
[38] At page 11 of 2014 report – Exhibit 20
[39] At paragraph 68(a) of Father’s affidavit sworn on 22 September 2014
The Father alleges that the Mother has made unilateral decisions which have affected X’s time with him, without any consultation. In an email from the Mother dated 20 October 2013,[40] the Mother informed the Father she had enrolled X in (hobby omitted) at (omitted) “at her [X’s] request” and needed to be taken every Sunday from 8-9a.m. On 20 October 2013, the Mother advised the Father that she had taken X to an optometrist, paid a deposit for glasses and the Father was required to meet 50% of the cost.[41]
[40] Exhibit 3
[41] Ibid
Father’s undisputed allegations about the Mother’s conduct
The Mother was cross-examined at length on the Father’s allegations about her behaviour, many of which were conceded by the Mother.
The Mother uses disdainful, contemptuous language about the Father and Ms M in her emails and text messages to the Father. The Mother refers to Ms M as “the slut”, “as (omitted)” “a drunk and a slut who has done half the (omitted) in town” “either lazy or drinking again”. [42]
[42] Messages from October 2011 to August 2014 a paragraph 145 to 147 of Father’s affidavit sworn on 22 September 2014
The Father details examples of the litany of text messages/emails between him and the Mother since October 2011.[43] Remarks from the Mother, including numerous messages on the same day, include repeated references to the Father as “Forrest” conceded by the Mother to be a reference to Forrest from the movie Forrest Gump, and therefore to a man with an intellectual disability. Examples of the Mother’s messages include:
[43] Ibid
you guys [the Father and Ms M] are so sad…It’s cause you two have NO friends. Hilarious!!!
…you really are dumb aren’t you…Haha! Idiot!
..thanks for putting (omitted) School on notice you are a deadbeat! Knew it wouldn’t take long for your true colours to shine!
(omitted) School has not started idiot! Haven’t taken your medication today?
Is your therapist aware of your ongoing disordered behaviour? This is very unhealthy for X to be around. Do you think increasing your medication or perhaps a stay in hospital might help you?
Hey idiot…. You are really dumb aren’t you?
Won’t have time to get them idiot as working. Return them to my house loser.
…As you are ADHD and autistic you probably forgot now am guessing.
..Are you out drunk again! That would be typical!
Hey dumbo…
…deadbeat father!
You SICK motherfucker!... you are a sick fuck…Get HELP retard! Increase time with your therapist you need help!!!
Hey forest [reference to Forrest Gump] junk food not allowed at (omitted) School! (several references to the Father as ‘Forest’ in communications)
Earth to retard! …do you wanna play this game dumbo?
Out getting pissed as usual you drunk!
..I thought you were being helped by your gay therapist??? H h h how is Mr S?... H h h hilarious! Are you still known as the stuttering (occupation omitted)?
R r r retard! D d d drunk! Omg you are the biggest loser
Earth to forest! Come in?
Hey forest weren’t you listening last night no chocolate. Der chocolate mousse is chocolate. God you are dumb. Stop giving her crap to eat.
Forest! Get a life! … Lucky (omitted) was desperate for a husband cause no one else would date you.
Run forest run!!
Earth to forest! Maybe you could give me (omitted) number to converse with?
…same old Mr Andrews attracting losers!.. maybe a question for therapy this week?
F.f.f.forest re.re.remember g.g.g.gynastics [sic] tomorrow.
You have s. s. s.serious m. m. m.mental problems!
Coward! If ever grow a set of balls give me a call! Won’t hold my breath loser…
Did you ever think the reason you love Mr S is cause he is gay and you are totally closet! Just a thought for your next therapy session!!!
… You and your slapper wife are idiots!
The Mother calls the Father (in X’s presence) “deadbeat” “f-f-f-f- forrest” and “you are such a retard/idiot”. X has in turn said to the Father “you are an idiot” and “Mummy says you are an idiot.” [44]
[44] At paragraph 149 of Father’s affidavit sworn on 22 September 2014
The Mother has sent emails to Ms M’s (employer omitted) in late 2012 and early 2013, disclosing that the Father is in therapy and suggesting the Father suffers from a mental illness.[45]
[45] At page 38 of Father’s affidavit sworn on 22 September 2014
The Mother was called into (omitted) School in mid-2013 to explain a poster X prepared about her family for a class presentation, on which the Mother wrote under the photo of the Mother “loves you, (takes care of)” and under the Father the word “monster”.[46] X was not permitted by her teacher to proceed with her presentation and the Mother was called to the school. (omitted) School staff advised the Mother that the tension between the Mother and Father was toxic for X and likely to be affecting her emotional development.[47] They referred X to the school counsellor. The Mother did not tell the Father about this meeting nor about the school’s recommendation for X to see the school counsellor.
[46] Exhibit 9
[47] Ibid
The Mother cut out the Father’s comments from X’s reading folder[48] when he recorded, under parent comments, that he had found X struggled to read a particular book.[49] Check WHEN??
[48] Exhibit 15
[49] At paragraph 125 of Father’s affidavit sworn on 22 September 2014
On 25 May 2012, the Mother wrote to the Father asking him to sign a passport renewal application for X.[50] She sent the forms to the Father via X. On 27 May 2012 the Mother wrote again, suggesting she needed the passport so X could visit her cousins in (country omitted). On 28 May 2012, the Father responded asking for details of the Mother’s plans for overseas travel, timing of proposed travel, contact details and a copy of the itinerary. He also expressed his concern that the Mother was not supporting X’s relationship with him and whether the Mother would agree to him having time to make up for 2 recent weekends when the Mother had taken X away. Exhibit 10 is an Application for a passport to issue for X without the Father’s consent, lodged by the Mother on 29 May 2012. She states her wish to travel to (country omitted) with X for 14 days in September 2012. In her Application, the Mother states in her application that the Father has “refused to sign stating I am a flight risk”.
[50] Exhibit 11
In October 2012, the Mother believed the Father had taken X to consult his psychologist Mr S, as a result of X telling her that she had been to Mr S’s office and had been given a fish[51]. The Mother told X she was opposed to her seeing Mr S. The Mother told the Father that X had said she had seen Mr S more than once and that X was “distraught”. The Mother did not believe the Father’s explanation (confirmed by Mr S) that he had briefly dropped in to Mr S’s office with X and Ms M approximately 18 months earlier to drop something in, not for a consultation, and Mr S had met X in the reception area and given her a fish. The Mother accused the Father of lying, told him she was “disgusted” She emailed the Father on 13 October 2012 at 5 p.m and at 9 p.m and emailed the Father’s father at 11.59 p.m about this issue. She emailed the Father’s solicitor on 14 October 2012 and the Father again on 15 October and 17 October 2012. She demanded to speak to Mr S directly. She threatened to withhold X from the Father indefinitely. The Mother did not accept the Father’s explanation of what occurred in his email to her of 17 October 2012, because “you have a long history of lying.”…“your version of events does not coincide with what X has told me.”[52] The Mother had a number of conversations with Mr S and did not accept his repeated assurances X had not been engaged in any therapy, (his version being identical to the Father’s version). The Mother insisted Mr S and the Father’s explanation was “not what X had disclosed to me.” The Mother then determined that X would not spend time with the Father on the following weekend in accordance with Court orders and informed the Father of her unilateral decision to withhold X by text message.[53] In a Notice of Abuse filed in April 2014,[54] the Mother asserts that X has been taken to his psychologist against her wishes as an example of her exposure at the Father’s hands to “psychological abuse”.
[51] At paragraph 51 of Mother’s affidavit sworn on 22 September 2014
[52] Annexure G35 of Mother’s affidavit sworn on 22 September 2014
[53] Exhibit 12
[54] Exhibit 23
On 30 January 2013, the Father agreed to give the Mother his iTunes password to download music for X’s iPad with a spending limit of $20.00. Without consulting the Father, and without later explanation, the Mother spent $647.07 on the Father’s account.[55]
[55] At paragraph 64(b) of Father’s affidavit sworn on 22 September 2014
In May 2013, the (omitted) school counsellor recommended that X consult Ms L, psychologist, to help her address her emotional issues.[56] On 18 November 2013, the Court made an order by consent for X to engage in therapy with Ms L, but as a result of problems raised by the Mother, it required the further Court orders proposed by the Independent Children’s Lawyer on 20 December 2013 for a mechanism to be resolved for therapy to start. In February 2014, Ms L advised the Father that the Mother wanted to stop the therapy. On 6 March 2014, the Mother formally withdrew her consent to X consulting Ms L, against the advice of Ms L, without consultation with the Father, and in breach of the Court’s order.
[56] At paragraph 109 of Father’s affidavit sworn on 22 September 2014
The Mother also failed to comply with Court orders as follows:
a)On 6 July 2012, the Mother did not make X available at (omitted) School for collection by the Father for her weekend with him.
b)On 24 July 2012, although the Mother had advised the Father that she intended to take X on a holiday from 24-30 July 2012, and was aware of the details of the orders concerning her travel, she did not provide the Father with details of the proposed holiday as required by Order 8 of the March 2011 orders. When she travelled with X to (country omitted) in September 2012 for 2 weeks, she provided no details as required by Court orders, but rather told the Father to google the resort.
c)On 19 October 2012, the Mother withheld X from the Father for the weekend.
d)On Christmas Day 2012, the Mother was almost an hour late for changeover, and then withheld X from the Father after a serious altercation in front of X, detailed later in these Reasons.
e)From early 2012, the Mother regularly kept X home from school on Tuesdays to prevent X spending Tuesday overnights with the Father as ordered by the Court. Although the Mother had consented to the Tuesday overnight order, she said that weeknights with the Father disrupted X’s school routine and left her tired and upset at school on Wednesdays.[57] On Tuesdays 10 April, 17 April and 26 June 2012, the Mother failed to make X available to spend time with her Father.
f)On 29 January 2013, the Mother withheld X from the Father’s care, as a result of the Father refusing to agree to a variation of the orders to stop the midweek time.
g)From immediately after the March 2011 orders were varied in April 2013 so that X spent each alternate Tuesday overnight with the Father, the Mother wanted the Tuesday nights discontinued.[58] On 15 May 2013 and 20 June 2013, the Mother again started asking the Father to drop the alternate Tuesday nights.[59]
h)The Mother did not facilitate any telephone communication with the Father in 2012 and on only two occasions in 2013. The Father says he stopped calling after so many calls went unanswered.
i)Despite the orders providing for X to spend additional time with the Father during school holidays as agreed, with the Mother to facilitate that time, the Mother refused X additional time with her Father every school holidays, until the March 2011 orders were varied in April 2013.
j)On Tuesday 6 August 2013, the Father went to (omitted) School to collect X, who, unbeknown to him, was absent from school. When the Father then went to the Mother’s home, there was no answer.
k)On the weekend of 9 August 2013, the Father made inquiries as to X’s health. The Mother told the Father that X was unwell, was not at school and would not be available on that day. Text message exchanges as to the time of pickup resulted in the Mother threatening the Father with police action. X commenced her time with the Father on the Saturday afternoon, rather than the Friday afternoon.
l)The Mother advised the Father she was taking X to (country omitted) from 15-29 September 2013, so X was not available to spend her time with the Father on Tuesday 17 September or the weekend of 20 September 2013. The Father was given no contact details, or details of destination as required by Order 8 of the March 2011 orders. The Mother did not make X available to speak to her Father during the holiday.
m)On 4 October 2013, the Mother concedes that X did not spend time with the Father in accordance with Court orders, though she disputes the Father’s and paternal grandfather’s version of what occurred.
n)On 11 October 2013, the Mother sent an email to the Father to advise that she no longer agreed to Tuesday nights.[60] On (omitted) 2013, X turned 6 years of age. The Mother took the view that the orders expired on that day. She said to the Father:[61]
[57] At paragraph 47 of Mother’s affidavit sworn on 22 September 2014
[58] Ibid at paragraph 70
[59] Ibid at Annexures G46 and G 48
[60] Annexure E to Father’s affidavit sworn on 22 September 2014
[61] At paragraph 71 of Father’s affidavit sworn on 22 September 2014
Idiot, the orders no longer exist. You can spend time with X when I say so.
The Mother advised (omitted) School that the orders had expired, but there was an agreement for X to spend alternate weekends with the Father.[62]
o)On Tuesday 28 October 2013, the Mother kept X away from school and X did not spend time with the Father. The Mother telephoned the Father in response to his request to collect X to say “the orders don’t apply anymore. You can see X when I decide you can and otherwise not at all.”
[62] Annexure F of Father’s affidavit sworn on 22 September 2014
On 18 November 2013, the Court was advised the Mother was not complying with Court orders and the Court made an order:
Each party comply with Orders made 25 March 2011 as varied on 11 April 2013.
On 20 December 2013, after an interim hearing, the Court made orders for X to spend defined time with the Father during the Christmas period, the Christmas school holidays, the April, July and October school holidays in 2014. The orders then provided for X to spend alternate weekends with the Father from after school Friday until before school Monday, alternate Tuesday nights from after school Tuesday until before school Wednesday. The Mother breached those orders as follows:
a)On 4 and 18 February 2014, the Mother kept X home from school, or collected her early, so X did not spend time with the Father.
b)At a meeting with (omitted) on 12 March 2014, the Father agreed not to try to collect X on Tuesdays for the remainder of the term because X was missing too much school as a result of the Mother’s attitude to the alternate Tuesday nights. However, on 5 May 2014, the Father’s solicitor advised the Mother, the Independent Children’s Lawyer and (omitted) School (including copy of the orders) that X would be spending time with the Father on alternate Tuesday nights in accordance with the Orders.[63] On Tuesday 6 May and 20 May and 3 June 2014, the Mother kept X home from school (all days she should have spent with the Father).
c)On 9 May 2014, the weekend of Mother’s Day, the Mother stopped X spending time with the Father. The orders did not provide for X to spend time with the Mother on Mother’s Day. The Father initiated a proposal that X return to the Mother at midday on Mother’s Day instead of Monday after school.[64] The Mother demanded that X be returned to her on the Saturday evening of that weekend. The Mother threatened to call the police if the Father collected X after school on Friday 9 May 2014.[65] When the Father advised the Mother he would be collecting X that day, she sent him an SMS:
…I always let you have X all Father’s Day. Your access is denied. Bring a breach application. If you cause conflict and embarrassment to X in front of her peers you are an idiot that doesn’t deserve your daughter.”
Again the Father asked what time the Mother would like to collect X on Mother's Day. He said she could collect X early on the Sunday if she wished. The Mother did not reply. The Father consulted police at (omitted) Police Station with a copy of the orders before collecting X after school on Friday 9 May 2014. When the Father arrived at the school with Ms M, the Mother and X were getting into the Mother’s car after a Mother’s Day event at the school. The Father blocked the Mother’s exit. The Mother beeped her horn screaming “move, move”. The Father moved his car further down the road and walked towards the Mother’s car. The Mother then “rammed her car into the back of my car.”[66] The Father left without X.
d)In June/July 2014, the Mother travelled with X to (country omitted) without notice to the Father. The Father found out about the trip from X and by Dr C, not from the Mother.
e)In the July 2014 school holidays, the Mother failed to make X available for time with the Father until 3 July 2014, days later than required by the orders.
[63] Annexure H of Father’s affidavit sworn on 22 September 2014
[64] Annexure J1 of Father’s affidavit sworn on 22 September 2014
[65] Annexure K of Father’s affidavit sworn on 22 September 2014
[66] At paragraph 79 of Father’s affidavit sworn on 22 September 2014
On 18 July 2014 the Court made orders specifying the precise days X was to spend with the Father. Nevertheless, the Mother continued to breach the Court’s orders as follows:
a)X was due to spend time with the Father on Tuesday 22 July 2014. On 19 July 2014, the Mother emailed the Father asking him to drop the mid-week time on alternate Tuesday nights. The Father replied that he did not agree to any changes. On 21 July 2014, the Mother asked for X to remain with her on the following two contact Tuesdays because her cousins were staying and “she needs to spend time with them.”[67] (It is common ground that the cousins were staying for 3 weeks). On Tuesday 22 July 2014, the Mother kept X home from school without advising the Father. The Father had been told by (omitted)[68] School that X was not at school and emailed to ask the Mother where he could collect her for his overnight time. X did not spend time with her Father on 22 July 2014, 5 August 2014, 19 August and 2 September 2014, when the Mother kept X home from school. Between 20 May and 2 September 2014, school records[69] disclose X was absent on 8 Tuesdays. The (omitted) school notes highlight staff concerns about X missing school and the negative impact on X’s confidence and progress.[70]
b)The Mother sent the Father a text message before the September 2014 school holidays without providing any details of her proposed holiday as required by Court orders.
c)The Mother discussed with X moving to (omitted) and changing her school to (omitted), before raising the issue with the Father. She said ‘because (omitted) wanted to leave (omitted)’.
[67] Annexure 0 to Father’s affidavit sworn on 22 September 2014
[68] Ibid at Annexure P
[69] Exhibit 21
[70] Exhibit 22
Findings on the Mother’s conduct
I accept the truth of the Father’s allegations as to the Mother’s conduct, and for the most part, prefer the Father’s version of the facts when it differs from the Mother’s. However, as later discussed, I am critical of the Father participating in hostile exchanges with the Mother in X’s presence, however frustrated and desperate he may have felt about the Mother’s attitude to X’s court ordered time with him.
I find the Mother has been resistant to X seeing the Father, except intermittently and strictly on the Mother’s terms, from the time of separation. I am satisfied that the Mother has repeatedly breached Court orders since they were originally made in 2009, and despite interventions by the Court to clarify each party’s obligations, the Mother has continued to decide for herself as to when and whether to follow the Orders, right up until the time of final hearing. I accept the Father’s evidence that he decided not to bring repeated applications for contravention, because he hoped that when final orders were eventually made, the parties would be able to cooperate. Sadly for X, that has not been the case.
Considerable time was spent at hearing on the issue of Tuesday overnight contact which, by order of the Court in March 2011, should have occurred each week. Despite her consent to this order at the time, the evidence clearly discloses that the Mother never supported X spending overnight time with the Father on Tuesday nights. As a consequence of her attitude, I find that the Mother endeavoured to prevent Tuesday contact occurring whenever possible, even before it became overnight. The Mother strongly opposed Ms M having any involvement in X's collection from day care, so if the Father could not arrive by 4 p.m precisely, the Mother would often arrange for X to be collected by her mother and miss X’s time with the Father. This resulted in many nasty exchanges between the parties, the Father frequently unsuccessful in his efforts to ensure the Tuesday contact occurred.
I find it unnecessary to canvass all the issues around the Tuesday nights. I am satisfied that from time to time, the Father endeavoured to ameliorate the Mother’s concerns by agreeing to drop the Tuesday nights but on certain conditions. However, I find those conditions were not met, yet the Mother would assert that the Father had agreed to no Tuesday night contact. I accept that in October/November 2013, the Mother was adamant that the March 2011 orders no longer applied (which was incorrect) and I accept that the Father also gave (omitted) School the impression that those orders no longer applied. However, on 18 November 2013, this Court made it abundantly clear that the Tuesday nights would occur, but on alternate weeks. The Mother insists that the day after the Court made those orders, the parties reached agreement that there would be no Tuesday nights but there would be extra school holidays. I am not satisfied that was so. I find that the Mother herself, by keeping X home on contact Tuesdays in November 2013 was of the view that the order applied, because she would otherwise have sent X to school. I accept that the Father agreed to drop the Tuesday night contact between early March and early May 2014, and advised (omitted) School accordingly, because he was so concerned about the impact on X of the Mother (or grandmother) arriving to collect her from school when he was also in the line up to collect her. The (omitted) School notes state “he was quite emotional as we discussed ways to support X.”[71]
[71] Exhibit 19
Annexure H to the Father’s affidavit[72] is a letter from the Father’s solicitors which states clearly that the Tuesday night order must thereafter be followed, advice ignored by the Mother when she kept X home from school on Tuesday 6 May 2014. On 7 May 2014, the Father emailed the Mother in relation to X’s absence from school on Tuesday 6 May as no arrangements had been made for handover. His email states that she should always be available on the Tuesdays she was to spend with him. The Mother responds on the same day[73]:
You are incorrect and there are no orders for Tuesday nights and I won’t agree to such self-serving demands…
[72] Sworn on 22 September 2014
[73] Exhibit 17
Dr C does not believe the Mother has a genuine investment in supporting X’s time with the Father and Ms M, though X does have a relationship with them, wants and needs those relationships.
While I have been critical of the Father’s conduct towards the Mother in front of X from time to time, I accept the Father’s evidence that he and his wife nurture a positive relationship between X and the Mother, always speaking of her in positive terms to X. I accept their evidence that X talks positively and openly about her Mother when in their care. I am satisfied that the Father and Ms M encourage and facilitate telephone communication between X and the Mother when appropriate. I make these findings despite the difficulties the Father and Ms M have encountered in their relationships with the Mother and X’s challenging behaviour at times. I am satisfied that the Father would choose open constructive communication with the Mother for X’s sake, if it were possible, which has not been the case. The Father would like X to be spared the confusion caused by the Mother’s denigration of him and Ms M. He would like the Mother to stop involving X in adult issues. The Father would like the Mother to support X in therapy. I find that if the Mother had complied with Court orders and supported X’s time with him, the Father would not have sought primary residence of X. I am satisfied his proposal has been advanced to protect X.
While the Mother asserts that she supports X’s relationship with her Father and acknowledges his importance to X, her conduct has not been consistent with her words. The Mother has behaved irresponsibly in repeatedly denying X time with her Father, despite the existence of Court orders. The Mother has not supported X’s relationship with her stepmother despite her importance in X’s life. The Mother has not sought skilled professional assistance to address her difficulties, despite Dr C’s advice in two reports. As already noted, I am not persuaded that the Mother’s last minute efforts to consult a therapist in the few days before the final day of hearing, is evidence of the Mother’s commitment to change. I find that the Mother holds a rigid view that she is right and the Father and Ms M are to blame for X’s predicament.
I give substantial weight to these findings.
Any family violence involving the child or a member of the child’s family.
I have earlier addressed this factor.
If a family violence order applies, or has applied, to the child or a member of the child’s family any relevant inferences that can be drawn from the order, taking into account the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
As already noted, an Apprehended Violence Order was made against the Father for the protection of the Mother on 19 November 2013 for a period of 6 months. No findings were made. The order was made by consent on a without admissions basis. There have been no family violence orders since.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
As already noted, on the final day of hearing, the Mother asked for another chance to prove herself by seeking interim orders for 12 months providing for X to live primarily with her and to spend 5 nights a fortnight with her Father. The Father and the Independent Children’s Lawyer strongly opposed such a course. Both submitted that litigation had to end for X’s sake.
I am not satisfied it is possible in the circumstances of this case to eliminate the risk of future litigation. Until the Mother is able to support X’s relationship with her Father and stepmother, I find that the risk of further litigation remains high, whatever orders the Court makes. However, I agree with the Independent Children’s Lawyer that the Court should not invite further litigation which the Mother's proposal would do.
Parental Responsibility
Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
As a result of my findings that the parties have engaged in family violence, the presumption does not apply. In addition, 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[175].
[175] Section 61DA(4) Family Law Act 1975
While the Father sought an order for equal shared parental responsibility in his application filed in November 2013, at hearing he sought an order providing for him to have sole parental responsibility.
At the commencement of the hearing, the Mother sought an order providing for her to have sole parental responsibility. The Mother told Dr C and confirmed in cross examination that it was not possible for herself and the Father to share parental responsibility because of the level of conflict between them and paucity of their communication. However, at the end of the hearing the Mother changed her position. She sought an interim order for equal shared parental responsibility for a period of 12 months, or in the alternative, for the Father to have sole parental responsibility for decisions relating to X’s schooling.
Dr C says joint parental responsibility has not worked for X and while each party has transgressed, she supports the Father having sole parental responsibility. The Independent Children’s Lawyer supports this position. Counsel for the Independent Children’s Lawyer submits that the Court could have no confidence that the parties would achieve joint decision making, given the long history of hostility between them.
As already detailed, I find the parties’ relationship highly conflictual. I find the content of the Mother’s communications with the Father frequently destructive and harmful. I find that the Mother has made major decisions concerning X without consultation with the Father. Although to a limited extent, the Father has also transgressed, the Mother’s decision to withdraw X from Court ordered therapy, her proposal to move house and to enrol X in another school without consultation, her decision to take X overseas without the Father’s knowledge or consent and her decision to obtain a passport on false pretences, are all concerning examples of the Mother’s resistance to involving the Father and his wife in decision making for X.
As noted, I am not satisfied that the presumption in favour of equal shared responsibility applies in this case because there has been family violence. In addition, as a result of the findings I have made, I am not satisfied it would be in X’s best interests for the parties to have equal shared parental responsibility. The Full Court in Dundas & Blake [2013] FamCAFC 133 held that[176] “it is necessary for there to be explicit and cogent reasons why the presumption should be rebutted.” I find that the Mother’s style of communication with the Father effectively stifles meaningful communication. I agree with the Father that it is unlikely the parties would agree on any major decision. I am not satisfied the Mother has the capacity or willingness to engage in constructive meaningful communication with the Father, and an order requiring shared decision making would be unworkable and would likely lead to further litigation. Any change in this position seems unlikely in the foreseeable future.
[176] At paragraph 61
The Father will have sole parental responsibility for X. I am satisfied that after these proceedings have been finalised, the Father will inform the Mother of any significant issues arising in relation to X. I am satisfied that if the Mother gains insight into her past conduct, and she is able to have a constructive conversation with the Father, the Father will willingly engage in such communication.
As there will not be an order for equal shared parental responsibility, section 65DAA(1) does not apply.
Discussion and Determination
X, at 7 years of age, has only experienced her parents in conflict. She knows her Mother has a poor opinion of her Father and has contempt for her stepmother. She has witnessed her parents’ frightening altercations and hostile verbal exchanges. I agree with Dr C’s assessment that[177]:
…something has to change for this child. And I just really hope it’s not too late for her development.
[177] At page 33 of 16 October 2014 transcript of proceedings
In her July 2014 report, Dr C highlighted her reservations about both households because of deficiencies in parenting of all three parents. While she had fewer reservations about the Father’s proposal being in X’s best interests than the Mother’s proposal[178]at that time, she concluded in her report that the Father’s application for X to live primarily with him was probably premature, given his and Ms M’s observed difficulties at interview with X and their capacity to parent long term together is untested. Dr C said[179]:
Because of X’s chronic developmental problems and exposure to her parents’ conflict, it would be very detrimental for her to live in another household with a couple who do not work together.
[178] At page 23 of July 2014 report – Exhibit 20
[179] Ibid
However, in her oral evidence at hearing, Dr C said she was impressed by the Father and Ms M’s consistent efforts to improve their parenting skills, by working “insightfully” with experienced clinicians who did not identify any psychiatric disorders and found no contraindications to them parenting X. She noted that such efforts to change had not been made by the Mother.
Dr C’s primary recommendation was for X to spend equal time with each party, supported by family therapy with both parents. [X seeing the therapist with her Mother, and separately with her Father and Ms M]:[180]
It would be of assistance to X to have family therapy with both parents, initially not together at the same time, aiming for them to develop consistency in their expectations of her, agreement about their behavioural management and ongoing, thoughtful review of her needs.
[180] Ibid
Dr C said it was her hope that a week about arrangement would give the Mother less incentive to breach Court orders and support her position as X’s mother. However Dr C was concerned about the Mother’s history of taking unilateral action if things were not enacted in accordance with her wishes.[181] She doubted the Mother would engage in family therapy. For those reasons, Dr C was not wedded to her primary recommendation of week and week about.[182] She said if the Court was satisfied the Mother was likely to further breach Court orders, she would support the Father’s proposal, being less time with the Mother, because[183]:
…the first priority is that X needs to be protected from her parents, her parent conflict and difficulties with each other. And if [the Mother] is breaching orders about X spending time with her Father, then she is perpetuating the conflict and not protecting X. She is undermining the Father’s relationship with X which is another thing that needs to be protected, and she would be demonstrating a poor capacity to change…
[181] At page 48 of 16 October 2014 transcript of proceedings
[182] Ibid at page 47
[183] Ibid at page 46
She said that while it would be easier for X to adapt to week about, Dr C questioned whether such an arrangement would protect her from her parents’ ongoing hostility and whether the conflict would in fact, worsen in a week about arrangement. Dr C said that if the Mother was going to expose her distress to X in the week she is with her (for example, “how can I let you stay in the care of that couple’?),[184] then her time “definitely needs to be restricted even more.” As already noted, I have found the Mother has spoken in derogatory times to X about the Father and Ms M and has otherwise involved X inappropriately in adult issues.
[184] Ibid at page 40
Dr C is pessimistic about the Mother’s capacity for change. Counsel for the Independent Children’s Lawyer submits that the Court could have no confidence that the Mother’s about face on the final day of hearing, will make any difference to the Mother’s behaviour in the future, and as already noted, the Father’s counsel submits that the Mother’s latest position[185] does not demonstrate an understanding of the matters highlighted by Dr C, but rather reflects the Mother’s desperate attempt to try to avoid losing control.[186] Senior Counsel submits that if the Mother genuinely understood Dr C’s evidence, she would not be seeking interim orders to keep this litigation going. I agree with counsel’s submissions. The Mother has admitted to serious contraventions of Court orders. I find the Mother is likely to persist in ignoring Court orders when compliance does not suit her agenda. This would mean exposure to ongoing conflict for X and a further undermining of X’s relationship with the Father. I find it particularly telling that the Mother persisted in breaching her obligation to facilitate X’s time with her Father, despite the proximity of this final hearing, and despite her professional obligations as a (occupation omitted). Her actions have been brazen. I also agree with Dr C that the Mother is unlikely to support X in therapy, even though such therapy is recommended for X’s well-being.
[185] Exhibit 26
[186] At page 117 of 24 October 2014 transcript of proceedings
I have given consideration to the Mother’s proposal for interim orders on the basis X remains in her primary care. Given my findings about the seriousness of her conduct, and Dr C’s concern that it may be too late already to repair the developmental damage X has suffered, I have agreed with the Father’s counsel and the Independent Children’s Lawyer that interim orders would not be in X’s best interests.
I have decided not to implement a week about arrangement but to move X to the primary care of her Father. To reach this decision I have carefully weighed the many complex factors in this case. I am acutely aware of the strong bond between X and her Mother formed over her 7 years, and X’s likely close relationship to her maternal grandmother. However, the damaging effect upon X highlighted by Dr C as a result of the ceaseless litigation and ongoing conflict between her parents, and the Mother’s failure to support X’s relationship with the Father, is profoundly disturbing. I have been critical of both parents, particularly the Mother, for their disregard of the emotional needs of X to be delivered from the never ending turmoil and strife. I am not confident that the Mother, despite her assurances to the contrary, is truly capable of the insight required to cease these damaging behaviours while she remains in a position of ultimate control of X’s life, as her primary carer. As noted, I find it likely the Mother will continue to breach Court orders which will result in X’s further exposure to conflict between her parents. The Father, whilst acknowledging deficits in the skills of parenting, is taking positive steps with his wife, through counselling and education, to be a more competent parent and to provide for X’s emotional needs. The Father has supported X’s relationship with her Mother. Dr C noted the well-formed bond between Father and daughter and the positive relationship between X and Ms M. Also of note was the consistency and dependability at the core of these relationships.
Dr C did not recommend a lengthy break from the Mother if X were to be moved to the Father’s primary care, to ensure her attachment to the Mother was protected. However, Dr C said that if there was to be a move to the Father's primary care, X needs to live primarily in the Father’s home straight away because she “needs to understand that the change has happened.” I find that the Father and Ms M are child focussed and although I was not satisfied they fully appreciate the challenge a change of residence will mean to X, I am comfortable that they will take advice and whatever steps are necessary to help X make the adjustment. Ms M said “we would prioritise settling X in ahead of all other things.” Given Dr C’s evidence about the importance of Ms M remaining abstinent, I have restrained the Father from permitting her to consume alcohol when X is with them.
Dr C accepted that X would undergo a grief process, and would experience a sense of loss, but because she has a good relationship with her Father and Ms M, is familiar with their home, would have the stability of her school community and would be supported by a clinician, she believed it probable that X would be able to grieve in a healthy way, without being traumatised.[187] Dr C said that Dr L would help X understand why the Judge decided it was time to spend more time with her Father and step-mother, but still see her Mother. She would work through any sense of grief, unfairness and any sense of worry about the Mother.[188] She was confident X would make the adjustment successfully.
[187] At page 38 of 16 October 2014 transcript of proceedings
[188] Ibid at page 40
Dr C recommended clarity and simplicity in the orders to the extent possible, to avoid opportunities for the parties to misconstrue what was to occur. She recommended that if X were living with the Father, she should spend from Friday afternoon to Monday morning with the Mother on alternate weekends during school terms, (or Tuesday if a public holiday weekend) not some other combination involving school nights. Dr C did not support any other time during the school week, because of potential problems with uniforms, homework and equipment. She referred to the history of the Mother keeping X home from school or getting her there late when she was due to be collected by the Father, or when Ms M was reading at the school. She referred to the Mother’s Day incident and the parties letting their conflict spill into the school without regard to its impact on X. Dr C wanted X in a stable place at the school without disruption. She said it was also important for X not to be confused about who is coming today to collect her. She therefore recommended alternate weekend time with the Mother if X were living with the Father.
Dr C said changeovers should occur at school or at holiday care during school holidays. Dr C said it was imperative that the parties have no contact with each other or Ms M with the Mother at any time, particularly if X is present. Changeovers will therefore occur at school, but when not at school will occur at the kiosk at (omitted). Until X attains 10 years, each party will be required to arrange for a third party to attend the changeovers when at (omitted).
The parties agree that X’s time with each party during short school holidays should be shared equally and I have ordered accordingly. X will spend the Easter period with the Father in 2016 because she spent the Easter period with the Mother in 2015. Mostly the Easter period falls in the first term school holidays when X will spend that period with the parent who has her care during that time. However, I have made an order for X to spend alternate Easter periods with each parent when the Easter period does not fall in the school holidays.
In relation to the Christmas school holidays in December/January, Dr C recommended two, possibly three week blocks (if something special). In Dr C’s view, X would manage at least two weeks away from each parent, rather than only one week as suggested by the Mother. Given X will be 8 years of age by Christmas 2015, and given Dr C’s recommendation to keep the orders as clear as possible, I have made orders for X to spend half of all school holidays with each party.
X will spend the Mother’s Day weekend with the Mother and the Father’s Day weekend with the Father. She will spend time on her birthday, her Mother’s birthday and her maternal grandmother’s birthday with the Mother, as well as alternate Christmas Day mornings. I accept the Father’s evidence that he will ensure that X spends extra time with her Mother for special events involving the maternal family. The Father said he was mindful of X’s close relationships with her grandmother and her cousins. The orders do not provide for X necessarily to spend time with the Father on his birthday, Ms M’s birthday or even X’s birthday, although given that X will spend the majority of her time with the Father, it is likely X will have some time with him on those special days. I have sought, as far as practicable, to reduce opportunities for conflict between the parties, including restraining each party from attending the other’s residence without prior written consent.
X’s schooling at (omitted) remains a vital platform for her emotional stability. Dr C was strongly opposed to any change in school which in X’s present state of adjustment to changes, would be damaging.[189] She is known at (omitted), secure in her friendships there and has had intense involvement in that school, becoming more settled in 2014. Dr C has noted the “safe haven” nature of her school life. I am satisfied the Father recognises the importance of X remaining at (omitted) and will ensure her continued enrolment there. I find it unnecessary to make an order about X’s attendance at (omitted).
[189] Ibid at page 11
Every effort must be made by both parents to keep X’s school life regular, happy, normal and free from any intrusions of their personal difficulties as has happened in the past. Given Dr C’s recommendation that the parties be kept apart to avoid any possibility of conflict in front of X, I have restrained each party from attending X’s school when X is in the care of the other party. I have also restrained the Mother from attending X’s school events or from attending her extracurricular activities in the Father’s time, the Father from attending those events in the Mother’s time. However, after 18 months this restriction in relation to school events/extracurricular activities will be lifted. I agree with Dr C that X should not miss out on having both her parents participate in activities important to her for any longer than necessary. It is hoped 18 months will be sufficient time and that the parties will thereafter behave in a respectful manner towards each other at any school event. The regular school life and educational decisions will be handled by the Father alone without interference from the Mother. The Father will be required to serve a sealed copy of these Orders on the Principals of the Senior and Junior schools at (omitted).
The evidence discloses that telephone communication has been problematic for X, particularly in relation to the Mother unsettling X by the content of her calls, when X has been in the care of her Father. The Mother would like to call X at any time and for X to call her anytime, though she has no confidence the Father would facilitate those calls. She said she would accept an order for calls every 4 days. The Father wants telephone calls from the Mother prohibited or strictly limited. I agree with Dr C that telephone communication has not worked in X’s best interests in the past and must be carefully controlled. I have decided telephone communication will be limited to one occasion each week when the caring party will facilitate X calling the other party. The non-caring party will not be permitted to initiate calls unless there is an emergency. I accept Ms M’s evidence that she and the Father would never stop X from calling her Mother if X wished to do so. While there is a limit to what a Court can do to control the content of conversations between a parent and a child, I urge the Mother not to burden X with adult issues during those calls.
As already noted, the Mother applied for a passport for X on the basis of false evidence. The Mother has also taken X overseas without advising the Father. In these circumstances, I find it in X’s best interests for the Mother to be restrained from taking X out of the country without the Father’s prior written consent. To ensure the Mother’s compliance with this restraint, X’s name will be placed on the Airport Watchlist until she is 16 years. In the event the Father gives his consent to X’s overseas travel with the Mother, the parties will be required to take whatever steps are necessary to have X’s name temporarily removed. The Mother will be required to provide the Father’s solicitors with X’s passport, and the Father will be authorised to renew the passport without the Mother’s consent in the future. He will be permitted to travel overseas for up to three weeks with X on condition he gives the Mother proper notice and details of the proposed travel.
Dr C recommended that X engage in family therapy with Dr L, the Father and stepmother. She said this might be a foil to the Mother’s lack of support for X’s relationships with them. She recommended individual therapy for X start immediately, rather than after judgment, and Dr L agreed to be involved in long term therapy for X[190]. An interim order was made with the consent of both parties and the Independent Children’s Lawyer at the end of the hearing for X to commence therapy with Dr L. I have made this order on a final basis. As requested by the Independent Children’s Lawyer, Dr L was provided with copies of Dr C’s two reports. I have ordered the Independent Children’s Lawyer to provide a copy of these orders and Reasons to Dr L immediately and for the Father to arrange for X to see Dr L again as soon as practicable, to have these Orders explained.
[190] Exhibit 27
I have not made any order for the Mother to attend individual therapy, but if she is engaging in therapy, I have required her to immediately advise the Independent Children’s Lawyer of the therapist’s contact details so the Independent Children’s Lawyer can provide a copy of these Orders and Reasons to the Mother’s therapist.
I have included orders in relation to exchange of information and restraints as sought by the Independent Children’s Lawyer to protect X.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X.
I certify that the preceding two hundred and sixty six (266) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Associate:
Date: 17 April 2015
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