BALL & TEMPLE
[2015] FCCA 2431
•30 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
BALL & TEMPLE [2015] FCCA 2431
Catchwords:
FAMILY LAW – Parenting – (country omitted) Father and Anglo-Saxon Mother – need to promote (country omitted) heritage – Mother silent on this topic – Mother unilaterally relocates – May 2013 parents enter into Final Parenting Orders – Mother unilaterally relocates for a second time – Father child-focussed – significant doubts about Mother complying with Court Orders should she have primary care.
Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA
Foster and Foster (1977) FLC 92-081
Hall and Hall (1979) FLC 90-713
Collu & Rinaldo [2010] FamCAFC 53
McCall & Clark (2009) FLC 93-405
Yuill v Yuill [1945] 1 All ER 183
Applicant: MR BALL
Respondent: MS TEMPLE
File Number: MLC 5488 of 2012
Judgment of: Judge Curtain
Hearing date: 17 June 2015
Date of Last Submission: 22 June 2015
Delivered at: Melbourne
Delivered on: 30 September 2015 REPRESENTATION
Counsel for the Applicant: Mr Carne
Solicitors for the Applicant: Bayside Solicitors
Counsel for the Respondent: Ms Sudholz
Solicitors for the Respondent: Wards Barristers & Solicitors Pty Ltd
ORDERS
IT IS ORDERED THAT:
(1)All previous parenting Orders are discharged.
(2)The child, X born (omitted) 2010 (“the child”), live with the father.
BY CONSENT IT IS ORDERED THAT:
(3)The parties have equal shared parental responsibility for the child of the relationship X born (omitted) 2010 (“the child”).
IT IS ORDERED THAT:
(4)The child spend time and communicate with the mother subject to Order 21 as follows:
(a)During all school term periods, two out of every three consecutive weekends from 7.00pm Friday until 5.00pm Sunday commencing 2 October 2015 or such other agreed weekend;
(b)For one half of each of all Victorian school term holidays as agreed between the parties or by default the first week of the school holidays which shall be deemed to commence at the conclusion of kindergarten/school on the last Friday of the school term and to conclude on the middle Saturday of the school term holiday period at 5pm;
(c)In the event that Mother’s Day falls on a weekend when the child is not scheduled to be with the mother then from 9.00am Saturday to 5.00pm Mother’s Day;
(d)From 3.00pm Christmas Eve until 3.00pm Boxing Day, commencing 2015 and each alternate year thereafter;
(e)By telephone as agreed and failing agreement from 4:30pm until 5pm each Tuesday and Thursday night with the mother to initiate the call and the father to facilitate and promote the call and ensure that the child is available;
(f)The child whilst still at kindergarten shall spend one half of the long summer school holidays with each parent as agreed between the parents and, failing agreement, on a week about basis with the mother to have the child the first week of that holiday period which shall be deemed to commence at the conclusion of kindergarten on the last Friday of the school term and to conclude at 5pm on the following Friday until X commences his primary school education;
(g)Upon X commencing his primary education the child spend the long summer school holidays with the parents as follows:
(i) With the mother for two weeks which shall be deemed to commence at the conclusion of school on the last day of the school term
(ii) With the father for the next two weeks;
(iii) With the mother for one week; and
(iv)With the father for one week, which is to conclude at the commencement of kindergarten / school on the first Monday of the school term for the first long summer vacation period, subject to Order 4(d) and Order 5(b), if relevant.
(h)For the second and subsequent long summer vacation periods after X has commenced his primary school education he shall spend one half of the vacation with each of his parents as agreed, and failing agreement, the first half with the mother in the first year of this period and the second half in the next year and alternate years thereafter, subject to Order 3(d) and Order 4(b) if relevant; and
(i)As otherwise agreed between the parents.
BY CONSENT IT IS FURTHER ORDERED THAT:
(5)The mother’s time with the child referred to in Order 4 herein be suspended as follows:
(a) for the father to have time with the child from 9.00am Saturday to 5.00pm Father’s Day; and
(b) From 3pm on Christmas Eve until 3pm on Boxing Day commencing in 2016 and each alternate year thereafter.
(6)At the conclusion of the times referred to in Order 4 herein, the child will be returned to the father with the same clothes, toys and other possessions that the child took with him to the mother.
(7)The parties shall establish a communication book which shall travel with the child and the parties shall exchange all important information regarding the child noting that such communication shall be child focussed and respectful.
(8)For the purpose of changeover:
(a) Changeover take place at any other location as agreed between the parties in writing and in default:
(i) The father or his agent known to the child will deliver the child to the mother’s home at the commencement of the mother’s time with the child; and
(ii) The mother will return the child to the father’s home at the cessation of the time.
(9)At changeover the party collecting the child shall not enter the other party’s home unless expressly invited to do so.
(10)The mother is hereby restrained by injunction from permitting the maternal grandfather to attend any changeover.
(11)The parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any member of their household in the presence or hearing of the child or from permitting any other person so to do.
(12)Within twenty-eight (28) days of these Orders both parents shall enrol in a post-separation parenting course and within six (6) months of these Orders ensure that they have completed that course and provided the other party with a copy of the certificate of completion.
(13)The father shall keep the mother advised in writing at all times of the names of any kindergarten or school attended by the child and ensure that her name and contact details are included in any kindergarten or school documentation.
(14)The father do authorise any kindergarten or school at which the child attends to provide to the mother (at her expense) in respect of the child, copies of all reports, newsletters, order forms for photographs and relevant information usually sent to parents and authorisation will be deemed affected by the father providing to the kindergarten or school a copy of this Order.
(15)The mother is at liberty to communicate directly with the kindergarten or school authorities:
(a) for the purpose of arranging to attend for consultation and attend parent teacher interviews (separately to the father) in regards to the child;
(b) from time to time to discuss all matters relevant to the welfare and educational progress of the child.
(16)The mother is at liberty to attend all kindergarten or school functions and extra-curricular activities to which parents are invited in the usual course with respect to the child.
(17)The parties each keep the other advised in writing of a current residential address and telephone number and advise in writing of any intended change at least fourteen (14) days prior to any change.
(18)The father advise the mother in writing of details of all medical and allied health professionals including dieticians, counsellors, psychologists and psychiatrists who may be providing assistance or treatment to the child and provide an ongoing authority to these professionals to provide information to the mother about all matters relevant to the health and welfare of the child upon a request by her for such information.
(19)The mother is at liberty to communicate directly with the child’s medical professionals, for the purposes of obtaining information as to matters relevant to his health and welfare including information about any treatment recommended or undertaken or medication prescribed.
(20)The parties advise each other immediately in the event that the child suffers a significant illness or injury or requires hospitalisation whilst in their respective care.
THE COURT FURTHER ORDERS THAT:
(21)That, in the event that the mother relocates more than two hundred (200) kilometres from the father’s current home Order 4 is suspended and the child shall only spend time with the mother as agreed between the parties in writing.
(22)That the mother is hereby restrained by injunction from permitting her servant and agent the maternal grandfather to:
(a) Be within 200 metres of the mother’s home at any time when the father or any member of his household is due to deliver the child to the mother’s home; and
(b) Attend any kindergarten/school function at which the father or any member of his household would ordinarily be in attendance without first obtaining the father’s written consent.
(23)That the mother at her expense (if any) shall:
(a) Within twenty-eight (28) days of these Orders:
(i) Start attending upon such psychologist as shall be recommended by Mr G for the purpose of obtaining therapy concerning her feelings toward the father and his partner and provide the therapist with a copy of the Ms S Family Report and this judgment; and
(ii) Obtain and provide a letter from the psychologist addressed to the father confirming that such therapy has commenced.
(b) Continue to attend upon and cooperate with the psychologist until such time as the psychologist confirms in writing that further attendance is no longer necessary;
(c) Provide a copy of the written confirmation from the psychologist to the father within fourteen (14) days of the date of that written confirmation.
(24)That the mother at her expense (if any) shall:
(a) Attend upon Headspace (National Youth Mental Health Foundation) at (omitted) on such dates and times as specified by her support worker or such other external service as her support worker deems appropriate for the purpose of managing her moods and emotions;
(b) Obtain and provide a letter from the support worker/therapist confirming that such therapy has commenced; and
(c) Continue to attend upon and cooperate with the support worker/therapist until such time as the support worker/therapist confirms in writing that further attendance is no longer necessary.
AND THE COURT NOTES THAT:
A.The father currently resides at (omitted)(omitted) in the State of Victoria.
B.The mother currently resides at (omitted), (omitted) in the State of Victoria.
C.In the event that the child becomes involved in after-school activities that would prevent the occurrence of the telephone time as set out in Order 4(e) herein the Mother seeks that the parties attend mediation to consider moving the telephone time from 7pm to 7.30pm.
D.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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 Ball & Temple is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNEMLC 5488 of 2012
MR BALL Applicant
And
MS TEMPLE Respondent
REASONS FOR JUDGMENT
“Those who cannot remember the past are condemned to repeat it.”
(George Santayana)
1.The Respondent mother has on two occasions disappeared with the parties’ child and not told the father beforehand or subsequently where she is living nor arranged for the child to spend regular time with the father. There have been two lengthy periods of around 13 months and 11 months that X has been denied a relationship with his father. In relation to this behaviour there are two major questions for the Court:
a)does the mother now appreciate the need for her son to have an ongoing relationship with both parents?; and
b)whether she is likely to disappear again should she retain the primary care of their child?
2.An important part of the father’s case is that if X is in his primary care he says he can promote the relationship with both parents, unlike the mother. The mother says she can also do this if she is given another chance but can she be believed? Has she learned from her past mistakes not to repeat history?
Background
3.The Applicant father, MR BALL, resides in (omitted) with his partner, Ms C. They are both aged 26 years and have co-habited for 3 years. They have a son, Y aged 2 years.
4.The Respondent mother, MS TEMPLE, recently rented accommodation in (omitted). She is aged 24 years.
5.The Applicant father and Respondent mother lived in a de facto relationship from around (omitted) 2006 to around February 2011. They have one child, X born (omitted) 2010 (“X”), who is currently aged 5 years and 4 months.
6.After they separated, the mother and X went to live at a town called (omitted), over 200 kilometres from the father’s residence with his consent. They agreed that X would spend time with his father about 2 or 3 times per month, with Mr Ball driving to and from (omitted) to see his son. He did this regularly for some months, meeting all of the costs.
7.In May 2011, the mother first became aware of Mr Ball’s relationship with his current partner and she, in evidence, said: “..It was a little bit upsetting, it was a shock...” It is common ground that after this event, the time with X was reduced. The mother says it is the father’s fault; the father says it arose because of the mother’s attitude towards his new relationship. It may have been an unfortunate coincidence. The evidence is not clear.
8.The father and X spent time together on Christmas Day 2011 and subsequently X did not see his father until 4 February 2013. The mother, in January 2012, moved to (omitted) without giving the father any notice or subsequently advising him of where she was residing with their son. Mr Ball made a number of enquiries trying to find the mother and child but with no success. Subsequently he issued proceedings in this Court for a location order and ultimately the parties were involved in litigation.
9.On 4 February 2013, Orders were made in the following terms by the (then) Federal Magistrate Connolly:
“1. Until further order the child X born (omitted) 2010 live with the Mother.
2. Until further order the child spend time with the Father as follows:
(a) For 2 hours on 2 occasions per week on days and at times agreed by the parties;
(b) Upon 6 periods in Order 2a) on one occasion per week for 4 hours on a day and at times agreed between the parties.
3. That the time in Order 2 be supervised by Mr K and take place:
(a) Time in Order 2a at Mr K’s home;
(b) Time in Order 2b at a venue agreed between the Father and Mr K.
4. That the parties and child attend and complete a Family Report with a Family Consultant nominated by the Dispute Resolution Co-Ordinator of the Court.
5. That the matter be fixed for trial on 5 June 2013.
6. That the Father file and serve any material upon which he intends to relay 28 days prior to trial.
7. That the Mother file and serve any material upon which she intends to relay on 14 days prior to trial.
8. Each party file and serve an outline of case 72 hours prior to trial.
9. Usual S65DA2 and S625 Orders.”
10.Approximately 3 months later, on 22 May 2013, the parties entered into final parenting orders which provided:
“BY CONSENT IT IS ORDERED
1. That the Orders made in the Federal Magistrates’ Court of Australia at Melbourne before Federal Magistrate Connolly on 4 February 2013 be discharged.
2. That the Mother and Father have equal shared parental responsibility for the child of the relationship X born (omitted) 2010 (“ the Child”).
3. That the Child live with the Mother.
4. That the Child spend time and communicate (“herein after referred to as contact”) with the Father as follows:
Until December 31st 2013:
(a) each alternate weekend from 8.00am Saturday until 4.00 pm Saturday and from 8.00am Sunday until 4.00pm Sunday;
From December 31st 2013:
(b) each alternate weekend from 8.00am Saturday until 5.00 pm Sunday;
(c) for one half of each of all Victoria term school holidays as agreed between the parties or by default the first week of the school holidays;
(d) for one half of the Victorian Christmas school holidays being the second half of the holidays in year 2014; first half of holidays in 2015 and then alternating each year thereafter;
(e) for Christmas day each alternate year whilst Child is in the Father’s care pursuant to clause 4 (d) of these Orders;
(f) each Father’s Day from 8.00am Saturday before Father’s Day until 5.00 pm Father’s Day in the event that the Child is not otherwise in the Father’s care;
(g) at school/kindergarten/childcare events (including sporting activities) that parents are ordinarily invited to or allowed to attend;
(h) for a period of 3 hours on the Child’s birthday as agreed between the parties or in default from 3.30 pm until 6.30 pm;
(i) at other such times as agreed between the parties.
5. That the Father’s contact with the Child referred to in Order 4 herein be suspended for the Mother to have contact from 8.00am Saturday preceding Mother’s Day until 5.00 pm Mother’s Day;
For the purpose of contact changeover:
(a) the Father or his agent will collect the Child from the McDonald’s Restaurant at (omitted);
(b) the Father or his agent will return the Child at the conclusion of contact to the McDonald's Restaurant (omitted);
(c) or at any other location agreed between the parties.
6. That at the end of each contact period the Child will be returned to the Mother with the same clothes, toys and other possessions that the Child took with him on the contact visit.
7. That the Mother and Father ensure the other is informed by telephone as soon as practical should there arise some event or situation concerning the health, welfare or significant medical issue of the Child whilst the Child is in their respective care.
8. The Mother and Father shall notify each other of any change of address or postal address, email address and mobile telephone number.
9. That the Father is free at his cost to obtain school reports, school notices, medical reports and the like of the Child.
10. That the Mother and Father shall establish a communication book which shall travel with the Child and the parties shall exchange all important information regarding the Child. Such communication be child focused and respectful.
11. That the Father shall be in substantial attendance whilst the Child is in his care.
12. That the Father shall not physically discipline the Child and/or allow any agent to do so or allow the Child to witness any violence whilst the Child is in his care.
13. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
NOTATION:
14. The Father consents to paragraph 6 of the Orders in relation to changeover arrangements however is unable to guarantee that his financial circumstances in the future will enable him to continue with the responsibility of changeover.
15 The Father consents to paragraph 13 of the Orders without admitting the necessity of same.” (sic)
11.The Final Consent Orders are very clear, in Order 4 X was to spend regular time with his father both on alternate weekends and holidays and, more particularly, it says in Order 8, “…The Mother and Father shall notify each other of any change of address or postal address, email address and mobile telephone number...” It was obviously sought because of the mother’s earlier disappearance. It could not be clearer that she must always keep the father advised of her address and other relevant details so that X can continue to have an ongoing relationship with his father.
12.I asked the mother why prior to her move from (omitted) to (omitted) did she not give the father notice? Why didn’t she promote the relationship between the father and the son? Her answer to me was, “..Unsure of that...” I queried her, and again she said, “..Unsure of that. Sorry…” When pressed further, she simply said to me, “..I don’t know…”
13.Subsequently, X and the father had regular time with each other and re-established their relationship. The mother again disappeared in May 2014 when she went to reside with X in a New South Wales town called (omitted), approximately 1,000 kilometres from Melbourne. Yet again, the mother did not give the father notice of where she was going, nor subsequently where she resided nor how he could continue to have a relationship with X. She disappeared for a second time and X did not see his father from December 2013 to 29 November 2014.
14.Although, initially unsettled, X it appears to have now settled with his father and his partner in (omitted). The father seeks an Order that he have primary care of his son and that the child has time with the mother. The mother seeks that X is returned to her care full time and X should have regular time with his father. She has to satisfy the Court that any order that is made will be fully complied with. She has a recent history of not complying with orders. She has breached a number of orders that are very clear and unambiguous.
The evidence
15.The parties’ relied on the following documents:
A. Applicant father’s material:
a)Outline of Case filed 16 June 2015
b)Initiating Application filed on 20 June 2012;
c)Affidavit in support sworn by the Applicant father on 20 June 2012;
d)Affidavit of father filed 9 July 2014;
e)Affidavit of father filed 22 September 2014;
f)Affidavit of father filed 27 January 2015;
g)Trial Affidavit of father filed 16 June 2015; and
h)Reports of Ms S dated 9 May 2013 and Mr G dated 17 May 2015.
B. Respondent mother’s material:
a)Response to Initiating Application filed on 23 February 2015;
b)Affidavit of the Respondent mother sworn and filed on
31 January 2013;c)Affidavit of mother filed on 19 February 2013;
d)Affidavit of the mother filed on 23 February 2015;
e)Notice of Risk filed by the mother on 23 February 2015; and
f)Report of Mr G dated 17 May 2015.
The Applicant’s evidence
A. Applicant father:
16.The father is an (omitted) by occupation and he presented as a quiet gentlemen who was very reluctant to criticise the mother.
17.He detailed in his evidence how X had settled in his care. He said he noted some psychological issues with the boy in February 2015 and he arranged for him to attend a psychologist. He also ensured that X attended a GP and enrolled him in kinder from January 2014. It is inappropriate that he did not consult the mother about the experts and kinder. He gave further evidence that he plans to send him to (omitted) Primary School in 2016, subject to the kindergarten operators confirming that his son is ready for school.
18.He was keen to clarify the circumstances of his business and his employment, both now and in the future. He was also willing to consider at one stage shared care of X with the mother. I found this attitude interesting. It indicated to me that, notwithstanding the mother has on two occasions totally ignored his role as a father over lengthy periods, he still was child-focussed and recognised the importance of both parents in X’s life. He gave evidence that when X first came into his care, he noted that he had unusual eating habits, sleeping habits and that he would not or could not dress himself. For example, when he first came into his care, he could not put his shoes on, and he has only learned to do so with the assistance of his father and his partner.
19.In my view, the father answered questions openly and as best he could. By example, he conceded that he said that the Respondent was a “Good mum.” He then when on to say, “..That’s the problem I have. I try not to say bad things about people. I don’t know why...” He was overly careful not to criticise the mother and I think he was generous and not totally accurate when commenting on her parenting.
20.I noted that the father had his partner in Court but she was not on Affidavit. In the circumstances, given the importance of her role of being involved in the care of X, I insisted that she be called.
B. Ms C:
21.The partner of the Applicant father is a full-time homemaker caring for their son Y and X. She said she met the father approximately 7 years ago and they have been in a de facto relationship for the last 3 years. She explained that the father worked mainly in the morning and both of them were involved in caring for the children in the afternoon.
22.When commenting on the relationship between X and his half-sibling, Y, Ms C said:
And how do you find the relationship between the two boys?‑‑‑It’s amazing. I was a little bit worried at first.
Why were you worried?‑‑‑Just, as has been previously mentioned, X would hold his hands over Y’s face when he was crying, but after we pulled him up on that it has been fine. If either me and Mr Ball are busy and X will get Y drinks and he will tell us if he thinks Y needs his nappy changed if we’re not currently in the room with him. And, yes, he has been an amazing big brother. Last night, actually, Y was having a hard time, so X told Y to come up on his bed and he ended up sleeping with X in his bed. He woke up – I’m not sure what time it was, but I went to get him and he was asleep on X’s bed.
The two boys share a room together?‑‑‑They do, yes.
And how long has that been the case?‑‑‑Only a few weeks now. Y before that was sharing a room with Mr Ball and I.
All right. And why was it that the boys started to share a room a few weeks ago?‑‑‑Well, Y was going to have his own room, and X was insistent that Y share a room with him as he has trouble sleeping on his own. So we thought we would trial it for a little bit.
And how do you find it’s working?‑‑‑It’s amazing. Both the boys sleep much better in the room together than they did separately.
In relation to – so X has been living in your house now for – well, since the end of November. How have you found him in terms of his behaviour and ‑ ‑ ‑?‑‑‑It’s a lot better now. When he first came ‑ ‑ ‑
When you say that what do you mean by that?‑‑‑Yes, I was just about to explain. When he first came into our care, he had a problem with frustration. He would just break down and cry if he couldn’t do something. Now, he doesn’t always ask for help, but he does talk about it and tell us what’s wrong, and he’s able to communicate without having to cry, sort of thing, like having to just drop everything and bawl his eyes out. He didn’t really talk much about his home life when he had been living in (omitted). I mean, we asked him about it, but he didn’t really talk about it, and now all he wants to talk about is his friends, what he has done when he goes to visit his mum, what he does at kindergarten. He has just come – he has come right out of his shell.
So how do you find he is coping with kindergarten?‑‑‑I think he’s coping all right. Again, I – we were speaking to his kinder teacher, and his kinder teacher did say that she has a few concerns about his fine motor skills and his social skills in relation to starting school next year. But apart from that, he – there’s been a few times when we’ve caught up with the kinder mums and he has played with his friends, and he seems to be excelling with his social skills in that respect.
Does he have many friends at kinder?‑‑‑He does. He has lots of friends at kinder.
23.Overall, I found Ms C to be child-focussed, frank, open and certainly fond of X.
C. The Respondent mother’s evidence:
24.The mother has only filed one Affidavit for this trial and relied on two earlier affidavits from hearings in 2013. I was surprised with her lack of material, particularly in not dealing in detail in any of her affidavits with the two occasions she prevented her son having an ongoing relationship with his father by disappearing with him. I would have expected her to detail the circumstances, her concerns for the father-son relationship and make a very clear commitment in her material that this would not be repeated. She made no such commitment in any of her affidavits to following Court orders and ensuring that X has a relationship with his father.
25.The mother first raised her behaviour in the witness box and apologised for her past behaviour; she gave certain commitments about the future relationship between father and son. She presented as a person who generally did not directly answer questions, appeared evasive and often criticised the father: I gained the impression that she gave me answers that she thought I would like to hear. She did not present to me as being child-focussed, save when her needs and the child’s overlapped.
The family report
26.An interesting aspect to this case is that Counsel for the father relied on two Family Reports. The first was dated 9 May 2013 and prepared by Ms S and ran to 34 pages. As she was not called to give evidence and therefore as her evidence was untested, one has to be careful when considering her report. The mother’s Counsel did not object to this report going into evidence.
27.
The second report was dated 17 May 2015 and was prepared by
Mr G for this trial and runs to 17 pages. He was cross-examined.
28.The following was put to the current expert:
“Mr G, you had the benefit of reading Ms S’s report ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ in the lead-up to your consultations with these parties?‑‑‑Yes.
And I think you describe - correct me if I’m wrong, sir - but I think you describe her report as being comprehensive?‑‑‑Yes, very much so.
There was nothing that stood out to you about it that was of concern?‑‑‑No, not at all.
A. The Ms S report (marked Exhibit “A”):
29.The relevant paragraphs in this report are:
53. Throughout the interview Ms Temple was teary and insisted that she is the “only” protective parent for X. She does not trust Mr Ball and is unable to predict any change in her attitude towards an ongoing relationship. Although she states that a relationship between father and son should develop her demeanour and her discussions throughout the interview pointed to a highly protective environment and one in which she sees no value in X having a relationship with this father.
54. When describing X, Ms Temple focused on her relationship with him and was unable to project any consideration that there is anything positive in supporting a relationship between father and son. She wishes for supervision to continue but has not presented any way of assisting Mr Ball to understand the needs of X as she is reticent to communicate or provide information to him.
…
60. Ms Temple’s demeanour and her experience of her former partner all point to a deep distress. She sees any issue in regard to X through the eyes of her own experience of Mr Ball. She is finding it difficult to separate her own sense of injustice, her concerns about Mr Ball’s manipulation and intimidation of her and strongly believes they will be perpetrated upon X. She took some time to acknowledge that her own adult experiences of Mr Ball are not the same for X’s experience of his father. Her lack of trust and perceived fear of him pervades her ability to clearly see the need for a relationship to occur between father and son. She stated she does want X to know his father but cites emotionally laden explanations as to how this is difficult to occur. Her request for Ms C who is the new partner of Mr Ball not to be present during Mr Ball’s time with X is based on her view that of Ms C’s involvement with her partner during the relationship. This appears to support her view that Mr Ball’s infidelity is an important relationship issue for her and X and it is not separable from her view of Mr Ball being able to be an adequate parent.
61. Her view of his infidelity and other transgressions are cited as issues but her own failure and transgressions e.g. her affair with his brother, were minimised until questioned by the writer suggesting she has possibly different standards that she places upon relationships and upon parenting. She intensely spoke of loving X, and this was not in question, but her need appears to give the writer a sense of her being unable to be separate from X. Ms Temple would benefit by therapy to assist her to manage feelings towards Mr Ball and separate and not perpetrate these feelings upon X as this will place him at emotional risk.
…
67. Mr Ball lacks trust in his former partner after she relocated from (omitted) without notice and hence he had to seek legal support to locate his partner and X. Currently the advent of legal proceedings has forced compliance for Ms Temple to enable Mr Ball to develop a relationship with his son. There was a gap of 13 months before Mr Ball saw X again. His commitment is being demonstrated by is [sic] preparedness [sic] drive to (omitted) and return for a four hour were [sic] visit on a weekly basis. Mr Ball’s view of Ms Temple is that she is “a good mother” but that she does not understand or want to acknowledge that X needs a relationship with his father.
68. Ms Temple’s attitude to Mr Ball is negative as evidenced in her material and interview. She does not accept his abilities to care for his son. Her past history which includes having an absent father in her life whom she did not seen [sic] her childhood, has not prepared her for the challenges of managing separated relationships. Hence the writer is not confident that Ms Temple has the emotional capacity to endure a long-term separate parental relationship with Mr Ball.
69. These parents are connected with each other for the remainder of their lives and Mr Ball is more cognisant of building and sustaining a relationship with his infant son in contrast to Ms Temple whose personal hurts, past parenting experiences have not provided a foundation for her to agree to facilitate relationships between X and his father. She is self- focused and sees X as an extension of herself. Such merging is an emotional risk to X and although Ms Temple denied needing therapeutic assistance, it is considered that if she does not access this help X is at risk of losing his relationship with his father. Given the fragility of that relationship and given X’s tender age this risk is high.
70. Both parents were administered the Parental Alliance Measure self-report inventory. It measures the strength of the perceived alliance between parents of children ages 1 to 19 years. If a sound parenting alliance is established, i.e. If each parent is invested in the child, values the other parent’s involvement with the child, respects the judgements of the other parent, and desires to communicate with the other parent as the child grows. The parenting alliance reflects the parents’ ability to cooperate with each other in meeting the needs of X. The notion of parenting alliance is useful because it relates more to the couple’s success as parents then [sic] to their success as a couple and assists in considering the couple’s capacity to engage in equal shared parental responsibility for X.
71. In this family the scores were in contrast to each other. Mr Ball’s score indicated that the parental alliance was somewhat “problematic”, however it indicated a potential for improvement as he believes Ms Temple is a “good mother” but is concerned that she does not accept him in the life of X. Ms Temple scored in the “dysfunctional “range [sic], indicating a strong belief that she does not see Mr Ball as a good parent nor believes he has the capacity to manage a child. It also includes that her capacity to communicate is compromised and that there is minimal willingness in being able to cooperate on negotiated arrangements.
72. The self-report measures support the writer’s assessment of both parents in their attitudes to each other and their ability to provide a stress less and risk free environment for X.
73. The Parental Alliance measure confirms the difference in the parents’ views of each other and their capacity to promote any positive interaction. Mr Ball is more prepared to work on the parental relationship for X whilst Ms Temple is unprepared to do so and this is in contrast to her stated position. When this type of contradiction occurs it points to an ambivalent attitude bordering on negativity. The writer is therefore not confident that Ms Temple will keep Mr Ball’s photos for X, make makes [sic]positive statements to X about his father or promote him at transitions in a healthy way given her negative and stressed view she currently holds.
….
RECOMMENDATIONS
That both parents share equal parental responsibility with assistance from agencies or therapists.
That X live with his mother
That X spends time with this father as follows:a)Until X was four years of age he spends time on weekends with this father weekly for four hours for the first two months
b)And weekly thereafter for a whole day in the local area.
c)Once X reaches 4 ½ he spends time overnight on a weekend in the local area.
d)When X is 4 ½ the mother to transport X to (omitted) or to whether [sic] the father is living to orientate him on once a month or once every six week basis.
e) When X attains the 5 years he sees his father weekly on a day basis for the first term
and alternate weekends for the second term commencing Friday after school to Sunday 6:00pm in the local area.
f)In term three X spends alternate weekends once a month at the home of the father.
g)X spends half the school term holidays with this father subject to his father being available
h)And that in the long summer holidays that X spend week about with each parent subject to his father being available.
i)That the Mr Ball accommodates X when he is with him not in a share house but with his permanent residence with no more than his partner or current partner available.
j)That Ms Temple access therapy and that the therapist be provided with this report, [My emphasis]
k) That both parents undertake 123 magic course at (omitted)
l)That both parents undertake a Parenting course as indicated in the body of the report.
m)That during X’s school holidays with his father that he be exposed to the (country omitted) culture.
n)That both parents communicate through a communication book which travels with X.
o)That a review after the first 12 months is recommended by either local therapists or an updated report.
30.While the author of this report was not cross-examined and her comments must be seen in that light, one matter was crystal clear, that the mother should have undertaken the recommended therapy. Moreover, the mother when called to give evidence did not criticise the report at all. She did not seek to clarify any aspect of that report or put in context any of the author’s opinions, views or recommendations.
31.Whether or not the mother agreed with that recommendation, it was a very serious oversight by her not to undertake therapy. It is clear from her CV that Ms S is an expert and well-experienced to write this report and make those recommendations. She sets it out on page 35 of her report her CV as follows:
FAMILY CONSULTANT ~ CURRICULUM VITAE
1. Tertiary Qualifications
2. Relevant Employment History
3. Other Relevant Professional Experience (conference presentation, published articles, professional training conducted / undertaken – within the past 5 years)
4. Membership of Professional Bodies
| ||||||||||||||||||||||||||||||||||||||||||||
33.When a person of her expertise recommends therapy, it is my view incumbent on the mother to act on that recommendation without hesitation, only if to have a therapist say it is not necessary or it is no longer required. She should have obtained a written report from a therapist for this trial.
34.The mother was well-aware of this earlier recommendation and chose to ignore it, with the effect that it raises a very serious doubt in my mind whether in fact she can promote X’s relationship with his father should she be the primary carer in the future.
B. The Mr G report (marked Exhibit “B”):
35.
This report is surprisingly brief with 3 paragraphs detailing an interview with Mr Ball and 5 paragraphs detailing an interview with Ms Temple. There are 4 paragraphs which detail an interview with
Ms C.
36.In relation to Ms Temple, the following comments are made by her at paragraph 20 (talking of the husband):
“He wants X to get off having to pay Child Support and to make me as miserable as possible. He hates me.”
37.In relation to paragraph 21 she says:
“Ms Temple spoke about the present arrangements. “X never sees Mr Ball because he is at work during the week and with me on weekends. Sara does all the looking after.”
38.And further at paragraph 22 it is reported that:
“Ms Temple indicated she would seek counselling for X to assist him with any transition issues and for herself as well as she had found it very distressing to be without the child.”
39.The relevant parts of evaluation in the report went as follows:
“EVALUATION
X presently lives with Mr Ball and spends time with Ms Temple every weekend pursuant to orders made in November last year. He had been living with Ms Temple prior to the Recovery Order being granted. Mr Ball had been seeing the child but this appears to have been inconsistent as a number of factors made more regular contact difficult. In mid-2014, Ms Temple unilaterally decided to relocate interstate.
For a five-year-old, X has had to deal with major change, dislocation and disruption including the separation of the parents several years ago, living predominantly with Ms Temple post separation, limited and inconsistent contact with Mr Ball, being removed from Ms Temple and placed with Mr Ball, and then adjusting to seeing Ms Temple as per the present regime. One suspects that arrangements whereby X sees Ms Temple every weekend were put in place so as to mitigate any likely negative consequences of being removed from her primary care.
In moving to (omitted), Ms Temple showed little insight into X’s need to at least have the opportunity to have an ongoing relationship with Mr Ball. Moving to (omitted) certainly made any form of relationship more difficult.
Whilst willing to continue to assume the care of X, it would appear that Ms C is doing this with only limited assistance from Mr Ball as the demands of his business and his long hours makes it difficult for him to play a greater role. If what he claims is true, he is effectively an absent parent. Consequently, it is primarily Ms C, rather than a biological parent, who is responsible for meeting the many day-to-day needs of this young and vulnerable child when Ms Temple is readily available to resume this role.
[This was found to be inaccurate as clearly Mr Ball is not and was not an “absent parent”. The father’s and mother’s proposals of ultimately working 9am to 5pm were put to Mr G and he said,“..both are going to be working so you get a more even playing field…”]
Mr Ball indicated he had no major concerns about the way Ms Temple meets the day-to-day needs of the child. Nonetheless, Ms Temple showed little insight into the needs of the child to maintain a relationship with Mr Ball by taking him interstate, effectively 1000 km away from Melbourne.
Mr Ball conceded he would have been happy to leave the post separation arrangements undisturbed had he been able to see X regularly and had Ms Temple not decided to move interstate. He and Ms C already had child who at the time was less than one-year-old. The arrival of another, possibly disturbed and confused child, is likely to have placed unexpected strains on their relationship as adjustments had to be made. Having said this, they rose to the occasion, accepted X and have endeavoured to meet his needs to the best of their capacity.
Prior to November of last year, it was Ms Temple who was primarily responsible for looking after X. The child was used to it being Ms Temple who meet his needs, could turn to for care, comfort and guidance. He knew he was readily able to access her. The current arrangement effectively means X is cared for by an admittedly loving and caring third-party rather than by a parent. Mr Ball’s reduced availability to the child contrasts with Ms Temple’s ready availability to directly care for and meet the needs of X.
[Again, the evidence showed that Mr Ball was more involved than the author understood.]
Mr Ball is not available to the child. Ms Temple is available and intends moving closer to Mr Ball. X was used to it being Ms Temple who was primarily responsible for meeting his day-to-day needs and he’s very likely fretting for and missing her. In the absence of any factors excluding Ms Temple from assuming the principal parenting role, then this Counsellor supports returning X to her care. Orders will be required for this.
[This is my emphasis and I noted that there was no clear evidence at trial notwithstanding the mother’s suggestion he missed her, that X was currently fretting for or missing his mother. In fact, it suggested he had settled into the care of his father and his partner.]
It seems generally preferable that a child be looked after by a parent rather than by an admittedly caring and responsive third party, more so if a parent is available, as is Ms Temple, to do so. There are sound reasons for this.
[Mr Ball was more available that the author understood.]
Given his apparent closeness to Ms Temple, the child should be readily able to accommodate a transition back to her. As to whether the child should be returned to her care only after she moves closer to (omitted), this seems a matter for the Court. If X is placed in her care, orders will be required restraining Ms Temple from removing the child from Victoria and if possible, restricting her from moving the child too far away from the (omitted) area.
X needs to have a relationship with Mr Ball, Ms C and his brother Y. Given Ms Temple is not currently employed, and hence available to the child midweek, consideration could be given to the child spending perhaps two out of three weekends with Mr Ball. (Ms Temple will also need to spend time with the child on the weekend, particularly once X commences school.) Orders will be required for this.
Mr Ball and Ms Temple have not manifested open conflict recently but there are certainly tensions in their relationship, particularly in light of the not so recent developments. It is not in the interest of their child that the two most significant people in his life maintain their conflict. There is ample research indicating that children exposed to prolonged levels of parental conflict are at risk of having their future mental health seriously compromised. X requires both Mr Ball and Ms Temple to cooperatively parent him as to his educational, development and other needs. Consequently, the parents need to learn how to deal more directly with each other for the sake of the emotional wellbeing of their child. Given the many decisions that need making, it is children who usually pay the price when parents find communication difficult. The parents need to be aware of this. It seems desirable for Mr Ball and Ms Temple to participate in the Parenting Orders Program (POP) so as to redress this situation and assist them refocus on the needs of their child. Orders will be needed to support this recommendation.
RECOMMENDATIONS
Based on information gathered from the parties and held in the documents supplied and in the absence of any evidence to the contrary, then this Counsellor recommends that:
orders be made for the child to live with Ms Temple;
orders be made X to spend time with Mr Ball as per the above suggestion;
orders be made for the usual personal and religious festivities (like Father and Mother’s Day, birthdays, Christmas etc.) to be shared;
orders be made for the midyear and Christmas school/kinder holidays to be shared on a week about basis depending on the commitments of the parents;
precise dates will be required as to the commencement and conclusion of the above;
orders be made for Mr Ball and Ms Temple to participate in Parenting Orders Program (POP);
orders be made for Ms Temple to seek counselling assistance for X;
orders be made restricting Ms Temple from leaving Victoria.”
40.The following was put to Mr G:
“And is it fair to say, sir, that a substantial platform for your recommendations is your view at the time that Mr Ball would not be available to the child by reason of his work?‑‑‑That’s correct.”
41.There were a number of omissions or factual errors in Mr G’s report that in my view makes it inappropriate to accept all of his recommendations, including but not limited to, his presumption that the mother’s unilateral relocation to (omitted), New South Wales had previously been canvassed and dealt with by the Court and he was not 100% sure that he was aware of the first unilateral relocation from (omitted) to (omitted).
42.The Full Court in Foster and Foster (1977) FLC 92-081 said at page 76-514 as follows:
“The discretion of the Court to admit a welfare report into evidence is without limitation, and we are of the view that such reports can be admitted even if they contain hearsay or statements of opinion. The question is not one of the admissibility of the report, but the weight which is given to the material which it contains. We see no inhibition against giving full weight to the report insofar as it is not inconsistent with any other sworn testimony before the Court.”
43.The Full Court in Hall and Hall (1979) FLC 90-713 at p. 78-819 commented on family reports as follows:
“(a) There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182 ; 11 ALR 657 ; [1976] FLC 90-098 at p 75,447; In the Marriage of Harris (1979) 3 Fam LN No 33 ; (1977) 29 FLR 285 ; [1977] FLC 90-276.
(b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character than that which the counsellor has accepted.
(e) Sometimes the family report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation.”
Relevant Legal Principles
44.Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:
a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; and
b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.
45.Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):
a)The child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;
d)parents should agree about the future parenting of their child; and
e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
46.Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.
Section 60CC factors
47.The two primary considerations are set out in s.60CC(2) of the Act. These will be considered after the relevant matter in s.60CC(3) are looked at (see Collu & Rinaldo [2010] FamCAFC 53).
48.The two primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
49.A recent amendment to section 60CC(2A) provides that the Court is to give greater weight to sub-section s.60CC(2)(b).
Additional considerations pursuant to section 60CC(3):
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
50.Quite properly, there was no attempt to interview X for the Family Report to seek out his views on his parents or where he would like to live. X is aged 5 years and it follows that with a child this young any views expressed by him generally would be unhelpful and little or no weight could be attached to them.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
(ii) other persons (including any grandparent or other relative of the child);
51.In the Family Report date 17 May 2015 at paragraph 28, page 10 the author said as follows:
“The child was observed with both parents separately. It was readily evident that he has an easy-going, engaged relationship with both. Nonetheless, he appeared more physically close and affectionate to Ms Temple than was the case with Mr Ball. (Mindful as one is of the limitations of one-off observations, no inferences can be drawn from this. There are very likely many reasons for such behaviour.)”
52.I note that the observation of the father also included Ms C and their toddler, Y.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
53.The mother has been involved in all of these matters on a regular basis and the father likewise, subject to the child being available when the mother had not disappeared with X.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
54.Although the evidence was brief on this topic, it appears that both parties have maintained X to best of their financial ability.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
55.Currently, X lives with his father, his partner and their two year old son, Y. I note at paragraph 29 of the Family Report dated 17 May 2015, that X currently misses his mother based on observations made some 5 months ago when the report was prepared. It is clear that X needs an ongoing, close and loving relationship with both parents. I also note that the evidence of the father and his partner, Ms C, was that X has settled into their care and was currently stable and happy in their environment.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
56.Just prior to the trial, the mother established her residence in (omitted). She told the Court that she moved to that city to be available not only to X, who was living with the father in (omitted), but also to her mother who lives at (omitted). She said (omitted) was half-way between the two. I found it curious that she had compromised her access to X to want to be close to her mother when ultimately I would have thought his needs would override the ready access she required to her mother, particularly given paragraph 38 of the Family Report where Mr G says, “..Should X be returned to
Ms Temple’s care and she moves closer to (omitted), as she indicted she plans to, Mr Ball too could be involved with mid-week kinder/school activities...” She said she investigated other areas through the internet, but in my view she should have made wider and further enquiries with letting agents closer to (omitted). The father at one stage of his evidence said if the mother lived close enough to him, he would consider shared care, something on a week-about basis. Notwithstanding this evidence, the mother never suggested during the trial that she would take up this offer and move closer to the father. In fact, her evidence was she would continue to live in (omitted) and undertake plans to study there and have a career there.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
and
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
57.I have included these two sub-headings under s.60CC(3) together because the considerations in this area overlap. In the Family Report dated 17 May 2015, the author said the following at paragraph 32:
“In moving to (omitted), Ms Temple showed little insight into X’s need to at least have the opportunity to have an ongoing relationship with Mr Ball. Moving to (omitted) certainly made any form of relationship more difficult.”
58.At paragraph 36, the author went on to say as follows:
“Mr Ball indicated he had no major concerns about the way
Ms Temple meets the day-to-day needs of the child. Nonetheless, Ms Temple showed little insight into the needs of the child to maintain a relationship with Mr Ball by taking him interstate, effectively 1000 km away from Melbourne.”
59.A significant responsibility of a separated parent normally is to ensure that their child or children have an ongoing, frequent and regular relationship with both parents. It is not only relevant to their emotional and to their intellectual needs, it is also important to their having the love and affection of their parents. The parents should have the opportunity to provide this to their child or children.
60.The objects in s.60B(1) of the Act cannot be overstated. I note that s.60B(1)(a) says as follows:
“(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) 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;”
61.Clearly, the mother has ignored this. It cannot be said to be in X’s best interests for two lengthy periods to occur where both parents are not involved in his care, love and support.
62.I also note the principles underlying those objects in s.60B(2) where it says in sub-paragraphs (a), (b) and (c) the following:
“ (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children;”
63.Again, it appears the mother has simply ignored the best interests of X, these principles and these objects and did what she wanted to do based on her own needs, which she put before those of the child.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
64.In evidence in chief, the mother describes X as “..a naturally thin boy of (nationality omitted) appearance….” The father originates from (country omitted) and is one of 5 siblings. Apparently, his siblings and his mother reside in Australia. (country omitted) is an ancient culture with a rich and interesting history. X should know that culture. X should be informed in detail about (country omitted) and what it can offer, given it is part of his own history. There is no proposal at all by the mother to promote or develop his cultural background. She was absolutely silent on this topic which troubled me, whereas living with his father, he could not fail to be informed about (country omitted) culture and its history.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
65.Not relevant.
(j) any family violence involving the child or a member of the child's family;
66.Not currently relevant, but the mother complained of it historically.
(k) 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 following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
67.Not relevant.
(l) 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;
68.I will use my best endeavours to draft orders that will discourage further proceedings between these parties. It is time they stopped litigating. It is time they allowed X to have a stable and comfortable lifestyle in the care of both parents.
(m) any other fact or circumstance that the court thinks is relevant.
69.As indicated earlier in my judgment, a major issue in this case is whether I can be satisfied that the mother will comply with all future Court orders in relation to X having an ongoing relationship with both parents.
70.When she was cross-examined, she admitted that she had breached Order 8 of the orders made 22 May 2013 which provides:
“The Mother and Father shall notify each other of any change of address or postal address, email address and mobile telephone number.”
71.She said further in evidence that she changed her telephone number in May 2014 and she did not provide the new number to the father. She acknowledged the above Order, and when asked why she did not comply with that Order, she simply answered: “…I’m not sure.”
72.At around the time she changed her phone number, it is common ground that she relocated a second time without notice before or after to the father to (omitted), New South Wales. By undertaking this unilateral relocation she breached, at the time or subsequently, Orders 2, 4, 8, 9 and 10 made 22 May 2013.
73.Prior to this second unilateral relocation the evidence disclosed that the parties initially exchanged text messages and the mother subsequently received text messages from the father up to and including 27 February 2014.
74.The series of messages went as follows:
(Father to Mother)
“13 Jan 2014 at 10:34am
Hi Ms Temple, did you work out your dates yet? If you can’t work out some dates I’ll have to pick some out.
(Mother to Father)
13 Jan 2014 11:37am
Spoke with my lawyer and to our understanding: you’re allowed to have him overnight each fortnight (8am sat to 5pmn sun) xmas holidays IN 2014 so at the end of the year, first half of 2015 xmas holidays and then alternating each year thereafter. So let me know when you’d like to start the overnights as im happy with that.
(Father to Mother)
16 Jan 2014 10:32am
Since you have not replied I’m booked in to go see my solicitor again, I now intend to see X for the full duration on the order instead of my suggested shorter period I advised you on the 21/12/13 and will take any necessary steps to apply at the court to see the final orders are committed too. Sorry Ms Temple but you again leaving me with no choice I have tried to give you a shortened period but since you haven’t cooperated, it will have to be this way. Mr Ball
(Father to Mother)
6 Feb 2014 4:58pm
Hi Ms Temple, Can I come up this Saturday to pick up X for an overnight this weekend. Y would love to see his brother. Mr Ball
(Father to Mother)
12 Feb 2014 1:39pm
Hi Ms Temple. I don’t know if you got my message last week about seeing X last weekend but I assume you were busy. Any chance I can see him this weekend please? Mr Ball
(Father to Mother)
27 Feb 2014 2:51pm
Hi Ms Temple, can I please have X this weekend ? It’s been awhile now and you’ve not replied to any of my messages in worries you’ve moved again now too. Please let me know. Mr Ball”
75.It is troubling when one looks at these messages. It is quite clear that the father was seeking an ongoing relationship with the son and that the mother was aware of this although she denied receiving all of these messages initially, but this was clarified when she produced her telephone on Day 3. The mother ignored his requests from 16 January 2014 and subsequently relocated to a place unknown to the father.
76.At paragraph 21 of her affidavit, affirmed by the mother on 19 February 2015 and filed 23 February 2015, the mother says: “..On 27th February 2014, I did receive a text message and did not reply as I believed he was going to change the order again…” I find this explanation unacceptable. Because there was some apparent proposal by the father to vary the orders, the mother felt she did not have to comply with the current Orders. This is a very strange justification for not allowing her son to have an ongoing relationship with his father.
77.I was concerned to give the mother a chance and a clear opportunity to explain herself, without any pressure and in detail, so I asked her the following questions:
HIS HONOUR: Have you got the message of 27 February 2014 there?‑‑‑Yes. That is the last date.
That’s the last one you got?‑‑‑Yes.
….
Could you read it out, please, madam?‑‑‑
Hi, Ms Temple, can I please have X this weekend. It has been a while now and you’ve not replied to any of my messages. Worried you’ve moved again, now, too. Please let me know, Mr Ball.
Continuing:
…you’ve not replied to any of my messages. Worries me you’ve moved again –
that’s right. You had moved, hadn’t you?‑‑‑Not at that time, no.
You were thinking of it?‑‑‑No.
All right?‑‑‑I did not move until 19 May.
Well, it’s clear from that message that the father wanted some time with his son. There can be no doubt, madam?‑‑‑Yes. I agree.
So when you stopped receiving messages, allegedly, what did you do about arranging for him to see his son?‑‑‑I did not arrange any further times.
Why? You know your duty as a mother. Why didn’t you arrange for X to see his dad? Don’t shake your head. Give me an answer, madam?‑‑‑I do not know why, your Honour.
78.Under further cross-examination, the mother explained that her move to (omitted) in New South Wales with X was to live with the maternal grandfather in a property they had jointly purchased. She admitted that she should have told the father, and when pressed as to why she did not seek to vary the earlier orders and to seek the Court’s imprimatur of her proposal, she said she was afraid that she “..would not be allowed to go...”
79.A further matter that concerned me was the mother’s attitude to the father and his partner. There was an unfortunate incident between the parties, the maternal grandfather and the father’s partner after they left the Court on Day 1 of the trial.
80.It appears they all entered the (omitted) railway station and by coincidence or design, were on the same platform and then subsequently boarded the same train. It is alleged by the father that the maternal grandfather made an inappropriate comment to the father and his partner. Given the maternal grandfather was not called about this dispute and the mother said she did not hear anything, I will put no weight on this particular part of the incident. What did concern me is that the mother conceded in evidence that she gave Ms C what is colloquially known as “the bird” when she was leaving the train.
81.This concession has to be seen along with the mother’s comments in evidence about her opinion of the father’s partner.
82.She said as follows:
“Well, what do you say about Ms O (sic)? Is she a good person?‑‑‑Ms O (sic) has been a friend of the family for quite some time. During that time, Ms O (sic) and I were friends, but she was very deceitful and went behind my back about her relationship with the father. I perceive her or I view her as – I view her as an indicator to the initial breakup of the father and myself.
[I suspect the error is in transcript and not counsel and the mother]
HIS HONOUR: View her as the cause of the breakup between you and the father?‑‑‑One of the causes, yes.
One of?‑‑‑Yes.
Yes. What do you think of her now?‑‑‑Now, since the recovery order in November, I have been civil with Ms C on the return Monday nights and I did explain to Ms C when we had the dinner at (omitted) on the – some time in February that I would like to put all previous negative things behind us and move forward.
Okay. I will ask you again. What do you think of her now? What do you think of her as a person?‑‑‑As a person. I generally can’t comment on her as a person because I do not know her other than ‑ ‑ ‑
You’ve dealt with her since your boy has been in her care along with her current partner, Mr Ball. You must have a view of her. I just want you to share it with us?‑‑‑I view her as – or previously viewed her as – when she was living in our house as a constant reminder to the affair that they conducted behind my back.
What’s your view of her now?‑‑‑I believe that her relationship with Mr Ball now is entirely on their own and does not have anything to do with me. I do ‑ ‑ ‑
I guess you’re right. But what’s your view of her as a person?‑‑‑I believe that Ms C is a person with no ultimate goal.
No ultimate goal?‑‑‑Yes.
All right. Do you take the view that she’s honest, dishonest, nice, terrible, lovely, horrible? Any of those?‑‑‑I believe she is very deceitful ‑ ‑ ‑
Deceitful. Yes?‑‑‑ ‑ ‑ ‑ with some of the things that Ms C has said.
Right. Anything else?‑‑‑And that she doesn’t have a plan to return to work once the child or the child – the – her child, Y.
Yes?‑‑‑And once – I believe that it was said that once Y was three that he – she would return to work. I do not believe that she will fulfil that.
So that’s, sort of, a liar, is she?‑‑‑Yes.
Yes. She’s a liar. Does she think – do you form the view that she looks after X when X is in her care?‑‑‑I believe she is a person who is the carer for X and ‑ ‑ ‑
Yes. Accept that. And what do you think – you’ve got no reason to say she does a bad job, do you? Or do you suggest she does do a bad job of caring for X?‑‑‑Sometimes, X does tell me ‑ ‑ ‑
Yes?‑‑‑I’m not sure if this is relevant – that she leaves the children unattended with TV.
With TV?‑‑‑With the TV on as a sort of childminder tool.
Yes. Not uncommon to know some parents do that?‑‑‑Yes.
Yes. So the TV is on and the mother is not the room. I’m sorry. The stepmother is not in the room, yes?‑‑‑Yes.
Yes. And? Go on?‑‑‑And that she – if this is relevant as well, if – that she does have a gaming addiction.
A gaming addiction?‑‑‑Yes.
Did X tell you that?‑‑‑Yes. And I have witnessed – I have seen the computer setup that was – is in their house.
HIS HONOUR: Gaming?‑‑‑Yes.
Playing games on computers?‑‑‑Yes.
But you can have one screen or multiple screens to do that?‑‑‑Yes, but there has been multiple occasions where I have arrived to drop X off on a Monday and she has been on the computer.
Yes?‑‑‑And I believe – at the time, I only glanced briefly at the screen, but there was a stream feed that had a camera that was watching the room.
Right. But you don’t know how long she had been gaming before you came?‑‑‑No, not before I dropped X off.
And you don’t know how long she was gaming after you left?‑‑‑No.
Right. Okay. So you believe she has got a gaming problem. Is that a fair comment?‑‑‑Yes.
All right. Now, anything else you want to say about her? You said she was deceitful, she was a liar, she had no ultimate goal and she apparently does gaming and leaves the kids watching TV. Anything else?‑‑‑I believe that it was Ms C’s motive to cause a rift between the father and I.
And for that, you’re annoyed with her now?‑‑‑No, because that was history and well over the separation.
Overall, do you say she’s a dishonest or a horrible person or a good person or a nice person? Any of that?‑‑‑I would say she is a dishonest person.
You’ve said that?‑‑‑Yes.
But dishonest, but otherwise, nice or dishonest and otherwise, terrible?‑‑‑Otherwise, civil to me.
Civil?‑‑‑Yes.
Yes. All right. Anything else? Would it be fair to say, from hearing you say all those things, that you really don’t like her?‑‑‑Yes.”
83.In relation to the mother’s attitude to the father, again in cross-examination, she said the following:
“You’ve seen him from time to time when he was available, collect his son, deliver his son back from time with. What do you think of him as a father other than you believe he wouldn’t harm his children? Anything else? Maybe there’s nothing more to say. I’m not saying you have to say anything. It’s up to you?‑‑‑All I can say is that I believe he is not an active parent.
He is not an active parent. Right. All right. Is that it?‑‑‑Whilst Mr Ball remains a generally good person, I do not believe that he ‑ ‑ ‑
Generally good person. Do not believe he – are you going to finish that sentence or let it hang there?‑‑‑I think I might leave that sentence.
All right. That brings us to the next question. What do you think of him as a person? I gather you believe generally, he’s a good person. Is he?‑‑‑Generally, yes.
Why do you say “generally”?‑‑‑There has been previous incidents of where he has abused me and made me sign for a car loan that was forced.
He – you were forced to go and borrow money for a car?‑‑‑Yes.
Sign a car loan from a bank, was it?‑‑‑Yes.
And he made you do it?‑‑‑Yes.
And you still feel aggrieved about that?‑‑‑Yes.
How long ago was that?‑‑‑That was in 2010.
Five years ago?‑‑‑Early 2010, January.
Five years ago?‑‑‑Approximately. Yes.
And you still harbour some resentment about that?‑‑‑Yes. I am currently bankrupt because of that incident.
You’re bankrupt?‑‑‑Yes.
You’ve got a $25,000 investment in (omitted), haven’t you?‑‑‑That was savings between me and my father together.
So save that he made you sign a car loan, he’s a good person. Was there something else?‑‑‑Throughout the course of our relationship, he was a very abusive and absent person.
Abusive and absent. Absent. Yes?‑‑‑He would frequently disappear for up to two to three days.
Excuse me. Yes?‑‑‑And I discovered that he was going to the casino.
Yes?‑‑‑And possibly had gambling issues.
You were not there, but you guessed he went to the casino. Go on. What did he do at the casino that you didn’t know of but guessed at or somehow determined?‑‑‑Gambling.
Gambling?‑‑‑At the casino.
Yes. That’s what people do at casinos, don’t they?‑‑‑Yes.
All right. What else?‑‑‑That he was – he seemed like the kind of person that was always too busy for anybody else.
And you resent that now?‑‑‑His current situation with his work is his own matter.
Didn’t ask you that. Do you resent – the way he was when you were together, do you still resent that now?‑‑‑I feel saddened by the fact that it happened. Yes.
Does that affect your view that you have of him, what you just told me, that he goes to casino and gambles and is absent? He wasn’t supportive?‑‑‑Yes.
Does that still affect your view of him today?‑‑‑Yes.
And that’s a negative view of him?‑‑‑Yes. It is a negative.
So is he really a good person?‑‑‑That’s why I said generally ‑ ‑ ‑
Generally?‑‑‑ ‑ ‑ ‑ because I cannot make assumptions as to pre-separation.
All right. What are his good points?‑‑‑Sorry?
What are his good points? Long delay. What are his good points?‑‑‑I do not believe he has any.
Do not believe he has any. So he’s really not a good person at all?‑‑‑That’s why I made the assumption of generally.
So he’s not a good person, don’t believe he has any good points. What is he? A bit of nasty work, is he?‑‑‑I believe, yes.
You believe that?‑‑‑Yes.
And, really, such a nasty bit of work, he really shouldn’t see his son?‑‑‑No.
No?‑‑‑He has the right to see his son.”
84.This occurred on Day 3 of the trial and I was disappointed to hear that answer. She still did not understand it is their son’s “right” to know his parents and have an ongoing relationship with both.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
85.In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:
“The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship””.
86.It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:
“…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.”
87.At paragraph 170, the Full Court said as follows:
“Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”
88.It then went on to say that there are three possible interpretations of section 60CC(2)(a) of the Act and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.
89.The ‘present relationship approach’ was defined by the court in paragraph 118 as follows:
“(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).”
90.I am satisfied that there is real and valuable benefit to X having a meaningful relationship with his parents.
91.The ‘prospective approach’, which I will apply in this case, was also set out at paragraph 118 as follows:
“(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
92.Although a serious problem in the past and during cohabitation, these people have been separated since 2011. Whilst the mother made many comments about the father’s intimidation of her, she generally talks about it happening before they separated, although, there is some reference to it occurring from time to time in relation to their early dealings soon after separation. There is no evidence that there has been any recent family violence as defined in the Family Law Act 1975 (Cth).
Section 65DAA
93.The parties seek a consent order for equal shared parental responsibility. Although their communication is poor, recently it has improved and they are able to communicate through text and appear to be able to have a civil conversation from time to time.
94.I am aware of sub-section (6) but I noted that the question of equal time arose during the father’s evidence when he indicated that he would be prepared to consider that, should the mother choose to live closer to him. It was never the mother’s case that the parties should have equal time and, in fact, her case was always one of being the primary carer. Given her choice to live in (omitted) and given the distance between the parties with the father living in (omitted), it is not reasonably practicable for the parents to have equal shared time. In fact, as the case progressed, I asked Counsel to prepare for me a Minute of Orders that the parties consent to and one of those provided that whoever did not have the primary care of the child would have two out of three weekends and half holidays with the child.
Conclusion
95.I commenced this judgment with two questions:
a)Does the mother now appreciate the need for her son to have an ongoing relationship with both parents?
b)Whether she is likely to comply with Court orders or would she disappear again, should she retain the primary care of their child?
96.I was surprised that the mother filed only one short affidavit for this trial, (and relied on two earlier affidavits affirmed in 2013). In none of those affidavits did she directly address her behaviour in disappearing twice with X and preventing the father and the child having an ongoing relationship.
97.I had the opportunity over 4 days of observing her and hearing from her in the witness box for 2 days. I had the benefit of both parties being represented (which was helpful, given the number of self-represented litigants these days). I am reminded of the remarks of Lord Greene MR in Yuill v Yuill [1945] 1 All ER 183 at 189 where he said:
“A judge who observes the demeanour of the witnesses while they are being examined by Counsel, has from this detached position, a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination.”
98.Overall, I have formed the view that the mother may comply with Court orders in the short term, but I am not convinced she will do so in the long term. I have real concerns about her capacity to promote a relationship between the child and his father should she retain the primary care of X. In my view, the following matters are examples that give rise to those concerns:
a)
The evidence is clear that the mother does not like the father nor his partner which was exhibited early by her rude gesture to
Ms C at a railway station after the first day of the trial;
b)In the recent past, she disappeared twice and X was unavailable to the father for 13 and 11 months respectively. She has not promoted X’s relationship with the father and appears to have made her needs a priority over X’s;
c)She has entered into consent orders in 2013 and she was well aware of the nature and effect of those orders in relation to ongoing time with between the father and the child, and keeping the father advised of her address and telephone number. She breached those orders knowing she was expected to comply with them fully;
d)According to the Ms S report she was required to undertake therapy to “manage her feelings” towards the father that were clearly negative. Notwithstanding that clear recommendation that she had clear knowledge of, she ignored it totally.
e)Counsel for the father put paragraph 54 at page 21 of the Ms S report to the mother in cross-examination where it said:
“When describing X, Ms Temple focused on her relationship with him and was unable to project any consideration that there was anything positive in supporting a relationship between father and son.”
The mother was then asked:
“She seemed to have formed the view that you didn’t really see anything positive in supporting a relationship between Mr Ball and X? ‑‑‑My relationship with Mr Ball is a very strained relationship due to the events that have previously occurred.”
f)The following from the same report at paragraph 71, page 27, was put to the mother:
“He believes Ms Temple is a good mother but is concerned that she does not accept him in the life of X. Ms Temple scored in the dysfunctional range, indicating a strong belief that she does not see Mr Ball as a good parent nor believes he has the capacity to manage a child.”
I asked the mother the following question:
“HIS HONOUR: That’s your current view, isn’t it? Hasn’t changed? ‑‑‑Yes, your Honour.
It is? Yes? ‑‑‑Yes.”
g)The following was put to the expert in cross-examination:
“To go back to my earlier question, Mr G, if the court is satisfied that there is a pattern emerging though with respect to the mother not telling the father where she is, not giving him contact details, and each of these being decisions made without any cogent explanation, what are your reflections on that if it ‑ ‑ ‑? ‑‑‑I was re-reading my report and reading Ms S’s report this morning, and there does seem to be unfortunately some continuation of that behaviour, which can’t be ignored.”
h)The current report writer was asked whether he had read Ms S’s report and if he had any ongoing concerns about either party. He said in answer, “..I guess on re-reading it recently I certainly developed some concerns about the mother’s capacity to support the relationship between the child and the father.”
i)The mother said to the report writer at paragraph 18, page 8: “I moved (to (omitted), NSW) because he didn’t seem interested (in X)…” This was disingenuous given the numerous text messages the father sent the mother in January and February 2014.
j)In re-examination her Counsel asked the mother the following question:
“MS SUDHOLZ: You have said you understood that you made a mistake disappearing with X twice. Can you say why you think it was a mistake? ‑‑‑I know that I should not have made those decisions. I do regret it and if I could change that, I would.”
This is a very ambiguous answer. She never said that she regrets that the father and the child did not have an ongoing relationship. She never said she regrets her son not having seen his father for that period. Her regret, in my view, was too little too late and not focussed on the real issues that surrounds the best interests of the child.
99.I have made some Orders in relation to the role of the maternal grandfather, one is by consent. This should not be seen as a criticism of him but rather avoiding any possible future issues
100.The parties’ child X is just over 5 years of age. In his short life he has lived at (omitted), (omitted), (omitted), (omitted) and (omitted) and now is back at (omitted). He has been living in his father’s care for some 9 months and the evidence suggests, save for some initial unsettling issues, he has settled into that environment. He now has stability and routine in his life.
101.It is an important part of the father’s case that ultimately he plans to work 5 days per week from around 9am to 5pm. The mother said that, after undertaking a full-time (omitted) course for two years, she would then work full-time herself. The father’s partner said she would stay at home and care for both of the children.
102.Currently, X is in a caring, stable environment. The question for me is: is it in the best interests of X, to disrupt his current stability and return him to the primary care of the mother? This has been a difficult decision because of the fine balance between the significant fact that the mother was primarily responsible for the care of X when he was younger, and my assessment of her, on the balance of probabilities, of not being capable of properly promoting the father/son relationship. I am not confident she will always comply with this Court’s Orders, should she have the primary care of X.
103.In looking at all of the factors under the Act and all of the facts that have been supplied to me, I have formed the view that ultimately, it is in the best interests of this young child to remain in the care of the father, and that he should have significant and substantial time with the mother.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Associate:
Date: 30 September 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Injunction
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Procedural Fairness
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Remedies
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Standing
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