Bartlett and Corey
[2008] FMCAfam 607
•13 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARTLETT & COREY | [2008] FMCAfam 607 |
| FAMILY LAW – Children – parenting orders – where child has resided in a shared care (week about) arrangement for an extended period – where father subjected mother to family violence during cohabitation – where father intimidates mother and lacks insight into the impact of his behaviour on her and the child – where father does not respect mother and is resentful of her – where both parties capable of meeting child's physical needs, but father lacking capacity to meet child's emotional needs – where father proposes that shared care arrangement continue in force and mother proposes that shared care arrangement be terminated – where father proposes that the parties retain equal shared parental responsibility for the child and mother proposes that she have sole parental responsibility – where parties' relationship is not such that they are able to communicate effectively – order for sole parental responsibility made in favour of mother – orders made to the effect that child live with mother and spend substantial and significant time with father. |
| Family Law Act 1975 (Cth) |
| Dearman (1908) 7 CLR 549 Goode (2006) FLC 93-286 Hungerford & Tank (2007) FamCA 637 M & S (2006) FamCA 1408 McLeay (1996) FLC 92-667 Mills & Watson (2008) FMCAfam2 Pender & Haywood [2007] FamCA 1526 Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334 Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321 Sanders (1976) FLCA 90-078 Schwarz (1979) 5 FAMLR 396, 399 Smith (1994) 18 FAMLR 55, 64 Taylor & Barker (2007) FamCA 1246 |
| Applicant: | MS BARTLETT |
| Respondent: | MR COREY |
| File number: | MLC12573 of 2007 |
| Judgment of: | Walters FM |
| Hearing dates: | 28 – 30 May 2008 |
| Date of last submission: | 30 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 13 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Puckey |
| Solicitors for the Applicant: | Morrison & Sawers |
| Counsel for the Respondent: | Mr Fitzpatrick |
| Solicitors for the Respondent: | David Stagg Tonkin & Co |
ORDERS
IT IS ORDERED THAT:
All extant orders be discharged.
Subject to paragraph 3 below, the mother have sole parental responsibility for the child [A] born in 2004.
The mother inform the father of all proposals and decisions made by her which affect the child’s long term care, welfare and development.
The child live with the mother.
The child spend time with the father:
(a)subject to paragraph 6 below, from 3.30 p.m. (or after kindergarten or school when applicable) on Thursday until 9.00 a.m. (or the start of kindergarten or school when applicable) on Tuesday in each alternate week commencing 19 June 2008;
(b)from 5.00 p.m. Saturday until 9.00 a.m. (or the start of kindergarten or school on Monday when applicable) on Father’s Day weekend each year;
(c)for one week in each school term holiday period from 10.00 a.m. Saturday until 5.00 p.m. the following Saturday, alternating between the first week in even years and the second week in odd years;
(d)for alternate weeks during the long summer school holiday period commencing:
(i)in 2008/2009 and alternate years thereafter ─ from noon on 20 December until noon on 27 December, and each alternate week thereafter until 5.00 p.m. two days prior to the start of the school year; and
(ii)in 2009/2010 and alternate years thereafter ─ from noon on 27 December until noon on 3 January and each alternate week thereafter until 5.00 p.m. two days prior to the start of the school year; and
(e)as otherwise agreed.
In the event that the father resides outside the Shepparton area:
(a)paragraph 5 shall be subject to the father ensuring that the child attends all scheduled kindergarten sessions during that period; and
(b)paragraph 5 shall be varied upon the child starting school to commence after school on Friday and conclude at 6.00 p.m. on Sunday (or Monday, if it is a non school day).
The father’s time in paragraph 5 is suspended ─
(a)during all school holiday periods; and
(b)from 5.00 p.m. Saturday on Mother’s Day weekend each year.
The parties exchange a communication book on a fortnightly basis to record matters relevant to the care, welfare and development of the child.
Each parent do ensure at all times that the other is ─
(a)kept informed of their residential address (and any proposal to move) and contact telephone numbers;
(b)kept informed of any illness or injury requiring medical treatment for the child;
(c)kept informed of the name, address and telephone numbers of any health service provider engaged or proposed to be engaged in relation to the child, and any form of treatment administered, recommended or proposed for the child; and
(d)authorised to obtain any information and copies of any documents concerning the child which would normally be available to a parent, from ─
(i)any health service provider involved with the child; and
(ii)any educational institution or child care facility attended by the child.
The father be and is hereby restrained from ─
(a)harassing, threatening or intimidating the mother;
(b)attempting to communicate with the mother by telephone (including text message) save in an emergency affecting the child; and
(c)criticising, belittling, rebuking or otherwise denigrating the mother or any member of her family (which includes her foster family) or friends to or in the presence or hearing of the child,
and from allowing any other person to do so.
The father do, as soon as practicable, enrol in and complete ─
(a)a course in Post Separation Parenting; and
(b)a course in Anger Management,
and do provide to the mother’s solicitors a copy of the Certificate of Completion of each.
All extant applications otherwise be dismissed.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) & 62B of the Family Law Act1975 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 the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bartlett & Corey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 12573 of 2007
| MS BARTLETT |
Applicant
And
| MR COREY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about the living arrangements for a three year old girl. Her parents (who separated well before her second birthday) cannot agree as to those arrangements. The father proposes that [A], for that is the child's name, should live with him and with her mother on a week about basis. The mother proposes that [A] live with her for most of the time. In the broadest of broad terms, the mother proposes that [A] spend four nights (and three days) in each fortnight with the father, as well as half of all school holiday periods.
The father seeks an order that he and the mother have equal shared parental responsibility for [A]. The mother opposes such an order, and argues that she should have sole parental responsibility.
The mother lives in a very small house adjacent to very large sheds on a rural property near Ardmona in Victoria. Photographs of the house were tendered in evidence. It is a simple, modest one bedroom brick dwelling with a tin roof. Behind the house are a paved "outdoor living" area and some play equipment for [A]. Inside, the house is clean and comfortably furnished. It provides perfectly adequate accommodation for the mother and [A], although I accept that it is never likely to feature in any architectural or garden magazines.
The mother has not repartnered.
The father has repartnered. His partner is Ms F.
Until the weekend immediately prior to the commencement of the trial, the father and Ms F lived in a rented, three-bedroom home in [X], an outer suburb of Melbourne. I have no doubt that the home provided comfortable accommodation for the father, Ms F and [A]. On the weekend immediately before the trial, the father and Ms F relocated to Shepparton. They moved to a unit owned by the father's mother and stepfather in [Y]. It was not in dispute that this unit also provides adequate accommodation for the father, Ms F and [A].
Since April 2006 (which was when the parties separated), [A] has lived with the mother and the father on a week about basis. It follows that the mother's proposal that she have sole parental responsibility for [A], and that [A] live principally live with her, amounts to a very significant change from the existing arrangements.
The mother commenced proceedings in this Court in late November 2007. In his Response, the father sought that [A] live principally with him and spend alternate weekends (and half holidays) with the mother. It was only a week or so before the commencement of the trial that the father announced that he no longer sought such orders, and that he wished the shared care arrangement to continue.
The father said that he effectively turned his case upside down (by abandoning his proposal that [A] live principally with him in [X], and by relocating to Shepparton) because of the contents of the family report (which was released in early April 2008). The father also said that his understanding was that, in all likelihood ─
… the mother would "get custody" unless we were living in the same town. So I moved.
Neither the mother nor the father have other children. Both of them love [A] very much.
The father has a very low opinion of the mother. He does not respect her ─ as a parent or as a person ─ and his anger towards and resentment of her were obvious from his messages to her and from his evidence. On at least one occasion (before they separated) the father subjected the mother to significant physical abuse. Since separation, he has subjected her to verbal abuse, and has attempted to intimidate her. I regret to have to record that he presents as a self-centred and unreasonable man, who is unable to give credit to the mother where it is clearly due.
The mother, on the other hand, is a sensible, caring and responsible parent. She has overcome considerable adversity to improve herself and to further [A]'s welfare. I have no doubt that she can be relied upon to protect and promote [A]'s best interests.
As is often the case in family law proceedings, one party seemed to dominate the trial process. In this case, it was the father, whose behaviour and attitudes, and character and personality, overshadowed many other aspects of the proceedings. For reasons upon which I shall expand later in this judgment, I have concluded that the father is controlling and demanding, and that he is lacking in insight. Further, he seems incapable of controlling his temper where the mother is concerned. He suggested that certain of his actions reflected frustration that he was feeling as a result of the mother's behaviour from time to time. The fact of the matter is, however, that the father's reactions to any such behaviour on the part of the mother were completely, and obviously, disproportionate.
At the end of the day, I have concluded that, notwithstanding the fact that the father loves [A] and is devoted to her, and notwithstanding the fact that he has the capacity to care for her physical needs on a day to day basis, I should make orders more or less in accordance with the mother's proposals.
The above summary comprises no more than a superficial introduction. I shall do my best to identify and resolve the various issues in dispute between the parties elsewhere in these Reasons.
Background and Overview
The father was born in 1978 and is now 29. The mother was born in 1984 and is now 23. They started living together in December 2003, and separated in April 2006. They never married.
[A], the only child of their relationship, was born in 2004. She is now three.
There were times ─ during the period that they lived together ─ that the father was violent towards the mother. There were also times when he was controlling and abusive towards her. The mother says in her trial affidavit (and I accept) that, given her age at the time that she lived with the father, she has only begun to understand the nature of the father's behaviour as she has matured. I accept the mother's description of the father's behaviour contained in paragraphs 5 to 12 of her trial affidavit. Although the father denied certain of the allegations contained in those paragraphs, I do not accept his evidence in that regard.
Arguably the most serious incident occurred around May 2004. On that occasion, the father, who was drunk, became enraged by something that the mother told him. They were in the father's car at the time. The father grabbed the mother around the throat and started to strangle her. She kicked and screamed and managed to get out of the car. The father then followed the mother to her mother's home and initially refused to leave. At the time of the assault, the mother was 10 weeks pregnant with [A].
The father admitted the assault described in the previous paragraph (although he asserted that it was the only incident of violence during the course of his relationship with the mother ─ which assertion I reject). The father was charged with assault and eventually "dealt with by the Local Court".[1] According to the father, "a component of (his) punishment was to undertake an anger management course, which (he) successfully completed pursuant to an order of the Local Court in Finley (New South Wales)".[2] The same Court also made an apprehended violence order against him on the basis of the same incident. The AVO was for a period of 12 months, but the parties recommenced their relationship almost immediately after it was made.
[1] See paragraph 7 of the father’s trial affidavit.
[2] See paragraph 7 of the father’s trial affidavit
The parties finally separated in April 2006, when [A] was approximately 17 months old. The father advised the mother that he proposed to relocate to Melbourne and "gave (the mother) the option of shared care or for the primary residence of [A] to remain with him".[3] The mother, who (I find) lacked the emotional strength to oppose the father's ultimatum,[4] agreed to the establishment of a shared care arrangement. From that time onwards, [A] lived with the parties on a week about basis. Changeover took place at Seymour at midday on Sundays.
[3] See paragraph 9 of the Family Report
[4] See paragraph 28 of the Family Report
The report writer (Mr Trevor Holland) wrote that the father's ultimatum at the time of separation "… could be construed as coercive".[5] He also said that shared care (as implemented by the parties after separation) was "a developmentally flawed arrangement for [A]" and that it was "poorly thought out".[6] It was Mr Holland's view that [A] had been "forced into unnecessarily long absences from each parent at a critical stage in her development".[7]
[5] See paragraph 46 of the Family Report
[6] See paragraph 28 of the Family Report
[7] See paragraph 29 of the Family Report
I accept that the mother felt that she had no realistic choice at the time of separation but to accept the father's proposal for shared care. Still, and as Mr Holland observed, it was an arrangement that was "somewhat expedient for both parents at the time".[8] As well, and subject to certain qualifications to which I will refer later in these Reasons, [A] seems to have adapted to the arrangement to the extent that she presented to Mr Holland as "relatively secure, calm and happy".[9]
[8] See paragraph 28 of the Family Report
[9] See paragraph 29 of the Family Report
Indeed, Mr Holland wrote:─[10]
Given the high level of expressed emotion and volatility leading up to the separation, and the preoccupation of the parties with the breakdown of the relationship, it is probably, in large part, due to [A]'s high level of adaptive functioning that she appears to have emerged from her parents' separation, and the developmentally inappropriate arrangement largely unscathed, and with a relatively sound attachment to both parents.
[10] See paragraph 38 of the Family Report
After the father moved to Melbourne, the mother commenced a [healthcare] course. She completed the course in September 2007. She worked part-time whilst she studied. The father's mother (Ms G) looked after [A] each Monday and Tuesday of the weeks during which [A] was with the mother. [A] attended childcare on the other weekdays. The mother said that she gradually reduced her part-time employment during 2007, and, as a result, reduced the amount of time that [A] spent in care. There were occasions (for example, when she was involved in a placement for her [healthcare] course) that the mother required Ms G's, or perhaps, the father's, assistance with [A]'s care on the weekend. From the time that the mother completed her course in September 2007, however, she has cared for [A] ─ during her weeks with [A] ─ on a full-time basis (or something close to a full-time basis). By the time of the trial (in late May 2008), the mother was working on a casual basis, three days a week. She had previously been working night shifts in the weeks that she did not have the care of [A].
The father suggested that the mother had enrolled [A] at a number of different day-care centres. It was his view that such changes were disruptive for [A] and not in her best interests. The mother explained, however, that there were good reasons for any changes that she made. For example, one day-care centre was not prepared to recognise the fact that [A] was only in the mother's care in each alternate week. Similarly, the mother removed [A] from another day-care centre because she was unhappy with the quality of care that was provided.
I am not prepared to find that the mother's arrangements for [A]'s care during the period from separation to the date of the trial were anything other than adequate and appropriate in the circumstances.
The mother was placed in foster care at a young age and is now estranged from her mother and father. In my opinion, it is very much to her credit that she overcame the difficulties associated with her family background and the unhappy, volatile and abusive relationship which she experienced while living with the father to gain a [healthcare] qualification and to otherwise to build a better life for herself and [A]. I shall say more about this subject later in these Reasons.
For his part, the father also made satisfactory arrangements for [A]'s care after he moved to Melbourne in or about April 2006. The father is a tradesman, and has worked on a full-time basis since the move to Melbourne. Initially, [A] attended full-time child care in [X] whilst the father was at work. He enrolled her at an [Z] Child Care Centre. The father's partner, Ms F, was working at the child care centre, and she and the father soon commenced a relationship. In or about February 2007, the father and Ms F started living together. Thereafter, Ms F would take [A] with her to the day-care centre at approximately 10 am and the father would collect [A] at approximately 3.30 pm. At some point, the arrangement altered and [A] commenced spending Mondays at home with Ms F, while the father went to work.
In approximately August 2007, Ms F and the father moved from the father's previous accommodation to a larger, three-bedroom home in [X]. Both homes were rented, and both provided adequate accommodation for [A].
The mother did not suggest that the father's arrangements for [A] during the weeks that she lived with him were anything other than adequate and appropriate. She accepted that the father has taken good care of [A] and that he is capable of meeting her physical needs. Similarly, she did not dispute that the father is devoted to [A].
It is significant, however, that the mother said (and I accept) that she did not know that [A]'s time in day-care had been reduced during the weeks that she lived with the father in [X]. She only became aware of the reduction in time when she read an affidavit sworn by the father. The father's failure or refusal to inform the mother of the changed arrangements comprises a relatively small example of a much larger problem ─ namely the father's communication with the mother (or lack thereof).
In my opinion, both parties have made appropriate arrangements for their own and [A]'s accommodation, and for the care and supervision of [A], during the weeks that she has lived with them since the date of separation. The father was highly critical of the mother's arrangements in this regard, however, and suggested that they reflected some form of instability on her part (or, perhaps, an inability on the mother's part to provide stability for [A]). Similarly, the father suggested that the mother was disorganised and prepared to place her own wishes or convenience ahead of [A]'s best interests. I reject the father's suggestions or allegations in this regard, and find that the mother has acted in [A]'s best interests at all relevant times. It should be borne in mind that the father repartnered at a relatively early stage, and that Ms F's occupation and place of employment were extremely fortuitous from the father's point of view. Given that the father has been a tradesman for some 13 years and had an established earning capacity, and given that he entered into a relationship with Ms F at a relatively early stage, it was comparatively easy for the father to put in place appropriate arrangements for [A]'s accommodation and daily care. On the other hand, the mother did not repartner, and, had to work hard in order to gain a qualification which should enable her to earn sufficient income to support herself and [A] at a reasonable level. There can be no doubt, of course, that Ms G greatly assisted the mother from the date of separation until the mother completed her course. Nor can there be any doubt that the week about arrangement enabled the mother to work and/or study during the weeks that [A] was with the father. But, at the end of the day, it cannot be said (in my opinion, and on the basis of the evidence before me) that one party's arrangements between the date of separation and the date of trial better promoted [A]'s interests than did the other party’s arrangements.
I note, as well, that neither party has paid child support to the other since the date of separation. Overall, therefore, and comparatively speaking, the father has been in a much better financial position since separation than the mother.
It would appear that the mother became progressively more dissatisfied with the shared care arrangement. Relevantly, she asserted that [A] was not totally comfortable with the week about arrangement. She was "often teary and upset" when leaving the mother on a Sunday and "clingy and reluctant to be apart from (the mother) on her return".[11] The mother was also concerned that the parties had different routines for [A], and that the need to adjust to those routines was disruptive for her. Further, the mother said:─[12]
The father and I are completely unable to talk to one another about [A]. The father is dogmatic and uncompromising. He will not accept indications from me about [A]'s needs, nor will he discuss compromise in terms of routine to make the transition from each home easier for [A]. I have felt very intimidated by his comments that he has made towards me…
[11] See paragraph 30 of the mother’s trial affidavit.
[12] See paragraph 29 of the mother’s trial affidavit.
In addition to the above, the mother said that the father:
a)regularly puts her down and accuses her of being a poor mother;
b)denigrates her and her (foster) family and friends;
c)makes similar comments to [A], including comments to the effect that the mother is "yucky" and "scum"; and
d)refuses to allow [A] to call members of the mother's (foster) family by their family names, such as Aunt and Nanna .
The mother also formed the view that, as [A] was about to commence her formal education at kindergarten, it was appropriate to terminate the shared care and put in place an arrangement whereby [A] lives with her and spends an appropriate period of time with the father.
Both parties saw Mr Holland on 26 March 2008. His summary of their attitude at that time is as follows:[13]
Both parties report dissatisfaction with the cooperation and communication around the current arrangement, particularly since (the mother's application was filed on 27 November 2007), and the mother alleges that (the father) continues to be verbally abusive and controlling with her by text. (The father) alleges that (the mother's) lifestyle lacks structure, continuity and stability. Both parties expressed the concern and belief that the other is not committed to maintaining [A]'s relationship with them.
[13] See paragraph 13 of the Family Report.
The mother said that she contacted the father approximately one year before commencing proceedings in November 2007 to say that she was not happy with the shared care arrangement and that it was not working. She said that an argument then took place. The father denied that any such event had occurred.
According to the father, the mother did not tell him until approximately one month before the commencement of proceedings that she was not happy with the week about arrangement. The father said that the mother told him that she wished to change the arrangement to one involving him seeing [A] on alternate weekends. The father then said (or said words to the effect of):
I said "No way". I then jumped in my car and drove off…I acted the way any father would act (in a similar situation).
It is quite clear from the father's evidence regarding his reaction to the mother's suggestion that he was simply not willing to discuss sensibly what was clearly a very important matter. It is a further example of the mother's inability to effectively communicate with the father, and his unwillingness to constructively communicate with her.
On 14 November 2007, the parties attended Family Dispute Resolution with Mr Tony O'Dwyer.
On 27 November 2007, the mother filed an application in this Court. She sought orders to the effect that [A] live with her and that the father spend time with [A] on each alternate weekend and for half the school holidays (as well as other, specified occasions). The mother also sought an order for equal shared parental responsibility.
The father's response was dated 1 February 2008, but it was not filed until 22 April 2008 ─ well after the preparation of the Family Report. It is clear, however, that Mr Holland was provided with the father's response and supporting affidavits (one by the father and one by Ms F, both sworn 1 February 2008) prior to seeing the parties on 26 March 2008. The report was released on 7 April 2008.
In his response, and as reflected in the family report, the father sought orders that were, in effect, the mirror image of the orders sought by the mother. He also sought an order that the parties have equal shared parental responsibility for [A], but proposed that she live with him and that the mother spend time with her on each alternate weekend, half of all school holidays and certain other times ─ although I note in passing that the father's proposed alternate weekend arrangement allowed for [A] to spend less time with the mother than the mother's corresponding proposal allowed for him. He proposed that [A] spend time with the mother on each alternate weekend from Saturday at 9 am to Sunday at 5 pm. The mother's proposal was that [A] spend time with the father on each alternate weekend from Friday at 5 pm to Sunday at 5 pm. On the other hand, I also note that the father's proposal allowed for [A] to spend more time with the mother during the Christmas school holiday period than the mother's proposal allowed for him.
Various procedural orders were made in this Court on 4 February 2008, and the matter was listed for trial in the Shepparton circuit commencing on 26 May 2008.
On 16 May 2008, the father filed an amended response. He again proposed that the parties have equal shared parental responsibility for [A], but he otherwise abandoned his proposal that she live with him on (effectively) a full-time basis. Instead, he sought an order that [A] live with the parties on a week about basis (with some variations for the Christmas school holiday period and other occasions).
In his trial affidavit (sworn on 15 May 2008) the father deposes to the following:
a)The original (week about) arrangement was not imposed upon the mother against her will.
b)He has "always encouraged and promoted the relationship between [A] and (the mother)".[14]
c)Since separation the week about arrangement has worked well.
d)He has always discussed [A]'s needs or the mother's concerns in "a civil adult manner".[15]
e)When he communicates with the mother, he maintains a "businesslike manner".[16]
f)He is available to discuss any issue relating to [A] and has "always been cooperative with (the mother)".[17]
g)Having seen and read the recommendations contained in the Family Report, he has "made the decision to relocate back to Shepparton in the next few days so as to continue with the current parenting arrangements on a week about basis".[18]
[14] See paragraph 5 of the father’s trial affidavit.
[15] See paragraph 46 of the father’s trial affidavit.
[16] See paragraph 48 of the father’s trial affidavit
[17] See paragraph 54 of the father’s trial affidavit
[18] See paragraph 55 of the father’s trial affidavit
The father's trial affidavit seems internally inconsistent. It joins issue with a number of matters raised in the mother's affidavit material and in the Family Report. He has very little (if anything) to say about the mother ─ as a parent or as a person ─ that is positive. For example, he asserts that the mother lacks knowledge and understanding as to [A]'s developmental needs.[19] Certain of the paragraphs (for example, paragraph 44) describe an arrangement that is clearly about to change with the father's relocation to Shepparton.
[19] See paragraph 13 of the father’s trial affidavit
In broad terms, it is difficult to understand from the affidavit why the father (who clearly has a very low opinion of the mother as a parent and as a person) formed the view that [A] should spend equal time in each household.
The father and Ms F moved from [X] to Shepparton on the weekend immediately before the commencement of the trial on Wednesday, 28 May 2008.
At the commencement of the trial, Mr Fitzpatrick (for the father) confirmed that the father had abandoned his proposal to the effect that [A] live principally with him (either in Melbourne or in Shepparton) and that he sought the continuation of the week about arrangement and the other orders sought in his amended response. Mr Puckey confirmed that the mother's case had not changed following the father's relocation to Shepparton, and that she still sought orders to the effect that [A] live principally with her. He also said that the mother now sought an order for sole parental responsibility.
Much of the trial focused on aspects of the father's attitude to the mother and the form of his communication with her (particularly since the latter part of 2007). Although it has been said that a Court should exercise restraint when expressing views about parties in parenting cases (because the parties will continue to have a relationship with each other ─ as parents ─ well after the trial is over, and because the parties will continue to have an ongoing relationship with their children),[20] the Court must also deal with the realities of the particular case before it. Further, and subject to the factors mentioned under the heading “the Law” below, the character and personality of the parents can be very important in parenting cases.[21]
[20] See Sanders (1976) FLC 90-078
[21] See Schwarz (1979) 5 Fam LR 396, 399 and Smith (1994) 18 Fam LR 55, 64
In this case, and as I have already said, I have formed the view that the mother is a sensible, caring and responsible parent. Her character and personality cannot fairly be criticised. I have no doubt that she can be relied upon to protect and promote [A]'s best interests.
But I have concerns about the father’s character and personality, and his behaviour and attitude. Mr Puckey submitted, and I accept, that although the father loves [A] and is devoted to her, his anger towards, resentment of and lack of respect for the mother make it virtually certain that any shared parenting arrangement is unlikely to succeed. Further, Mr Puckey submitted (and again I accept) that the father is volatile, controlling and demanding. Although I shall refer to the subject in more detail later in these Reasons, the fact of the matter is that many of the father's comments (in his text messages to the mother, in his affidavit material and in the course of his oral evidence) reflect unfavourably on him, and are regrettable.
In my opinion, the father has failed to understand the impact upon others (including the mother and [A]) of his negativism and intemperate comments.
In his closing address, Mr Fitzpatrick ignored the vast bulk of the father's criticisms of the mother, and focused (properly) on his client's behaviour and attitude. He emphasised [A]'s significant attachment to the father and the fact that, generally speaking, the week about arrangement has been successful. He urged the Court to order the father to attend an anger management course and a post separation parenting course. He conceded that his client's "old habits" have continued, but submitted that the potential for change exists. Among other things, Mr Fitzpatrick urged the Court not to "close the door" on the father, and to let him "prove himself".
As will appear elsewhere in these Reasons, I certainly do not propose to "close the door" on the father. It was never suggested (by the mother or by anyone else) that [A] should spend anything other than a significant period of time with the father. But [A]’s best interests comprise the paramount consideration in this case and, in my opinion, those interests ─ for the reasons contained in this judgment ─ require that the shared care arrangement be brought to an end.
The Parties' Competing Proposals
I have already referred to the parties' respective proposals. The orders sought by the mother are those contained in the Minute attached to her Outline of Case Document filed on 28 May 2008 ─ save that the mother now seeks sole parental responsibility instead of equal shared parental responsibility. The mother also sought an order that she inform the father of all proposals and decisions made by her which affect [A]'s long term care, welfare and development. The orders sought by the father are those contained in his amended response filed 16 May 2008.
At the completion of closing address (on 30 May 2008), I made the following orders (which were not opposed by either party):
1. The father be and is hereby restrained from:
a) harassing, threatening or intimidating the mother;
b) attempting to communicate with the mother by telephone, including text message, save in an emergency affecting the child [A] born in 2004; and
c) criticising, belittling, rebuking or otherwise denigrating the mother or any member of her family (which includes her foster family) or friends, to or in the presence or hearing of the said child;
or allowing any other person to do so.
2. The father do, as soon as practicable, enrol in and complete:
a) a course in Post Separation Parenting; and
b) a course in Anger Management;
and provide to the mother’s solicitors a copy of the certificate of completion of each program.
3. The parties exchange a communication book on a fortnightly basis to record matters relevant to the care, welfare and development of the said child.
In consenting (or effectively consenting) to the above orders,
Mr Fitzpatrick submitted that the father has begun to take positive steps to improve his attitude to the responsibilities and duties of parenthood (including his obligation to treat the mother with respect and to improve his communication with her). Mr Fitzpatrick did not attempt to excuse the father's past behaviour and submitted that "the ball is in the father's court" and that "the penny has to drop". He also urged the Court to accept that the father could and would "change" for [A]'s sake.Mr Puckey argued that the father will not change and that his attitude is, in summary, that he would prefer it if the mother "would just go away". Mr Puckey also urged the Court to accept that the father's long term objective is "to rescue [A] from her evil mother".
Mr Fitzpatrick argued that, if the Court is not minded to grant the orders sought by the father, then it should allow the father to spend time with [A] for a period of five consecutive nights in each fortnight. Mr Puckey conceded that the father should spend more time with [A] than that proposed in the mother's Minute, but he argued that the father should spend four nights per fortnight with [A]. Thus, Mr Fitzpatrick submitted that the "worst case scenario" for the father should involve [A] spending time with him from after school on Thursday to before school on Tuesday in each alternate week. Mr Puckey proposed a similar arrangement, but from after school on Thursday to before school on Monday.
Documents Relied Upon
Both parties relied upon the family report prepared by Mr Trevor Holland. The report is dated 3 April 2008.
The mother relied upon her outline of case document filed 28 May 2008, her initiating application filed 27 November 2007, her trial affidavit (sworn 24 April 2008), the affidavit of Ms R (sworn 31 January 2008), the affidavit of Ms C (sworn 13 May 2008), and the affidavit of Ms M (sworn 6 May 2008). Ms R is the mother's foster mother. Ms C and Ms M are her foster sisters. As far as the mother is concerned, however, they are her family. She regards Ms R as her mother and her foster sisters as her sisters.
The father relied upon his amended response filed 16 May 2008, his trial affidavit (sworn 15 May 2008), the affidavits of Ms F (sworn 1 February 2008 and 15 May 2008) and the affidavit of his mother,
Ms G (sworn 14 May 2008).The father did not rely upon his affidavit sworn 1 February 2008, although Mr Puckey cross-examined the father on passages from it.
Ms G was not required for cross-examination.
The Law[22]
[22] This generic summary of the law is extracted from my decision in the matter of Mills & Watson (2008) FMCAfam 2
Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the FLA. Much of Part VII reflects comprehensive amendments to the pre-existing law, which amendments came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”[23]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[24]
[23] See section 64B(3)
[24] See the definition of "major long-term issues" in section 4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision.[25] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[26]
[25] See section 65DAC; see also Pender & Haywood [2007] FamCA 1526, at paragraph 56
[26] See section 65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[27]
[27] See section 60B(1)
… 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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive 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 the children.
The principles underlying these objects are:[28]
[28] See section 60B(2)
… 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; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[29]
[29] See section 60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are met, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[30] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[30] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see section 60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her 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.
The additional considerations are set out in section 60CC(3). They include:[31]
[31] This list is not intended to be comprehensive. It is simply a summary of the factors in section 60CC(3). The actual factors set out in section 60CC(3) ─ or, more accurately, those of them that are relevant ─ will be considered later in these Reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)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"; and
l)any other fact or circumstance that the court considers relevant.
Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[32] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[33]
[32] See section 60CC(4A)
[33] See section 60CC(4)(c)
The Full Court in Goode summarised the above process as follows:[34]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[34] See paragraph 10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[35] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[36]
[35] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[36] See section 65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[37] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[37] See section 61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[38] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[39]
[38] See section 61DA(2) and the definition of "family violence" in section 4(1)
[39] See section 61DA(3); it is important to note, however, that the Full Court in Goode (at paragraph 78) held that the discretion in section 61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[40]
[40] See section 61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[41]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[42] and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect.[43] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[44] with each parent would be both reasonably practicable[45] and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.[46]
[41] See, for example, Goode at paragraphs 46 and 47, and Pender & Haywood [2007] FamCA 1526 at paragraph 44
[42] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[43] See section 65DAA(1)
[44] "Substantial and significant time" is defined in section 65DAA(3)
[45] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[46] See section 65DAA(2); see also Goode at paragraphs 43 and 44
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said[47]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[47] See paragraph 62
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[48]
[48] See paragraph 63
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[49]
[49] See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
paragraph 36The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[50] or
[50] But see subparagraph (k) below
ii)impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent – unless (in turn) substantial and significant time would also be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[51] or
ii)impracticable.
i)Bear in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).[52]
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[53]
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect ─ although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
l)Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[54] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[55]
[51] But see subparagraph (k) below
[52] See Taylor & Barker at paragraph 74
[53] See Goode at paragraph 65.8
[54] See Goode at paragraph 65.11
[55] See Goode at paragraph 65.9
Issues in Dispute
I have already identified the parties' competing proposals. In broad terms, the issues for determination are as follows:
a)Irrespective of any relevant presumption, should the parties have equal shared parental responsibility for [A], or should the mother have sole parental responsibility for her?
b)Irrespective of any relevant presumption, is it in [A]'s best interests to spend equal time with each of her parents?
c)If it is not in [A]'s best interests to live in a week about arrangement, then should she spend four or five nights per fortnight with the father?
It was not in dispute that the only available options involve a week about arrangement (on the one hand) or an arrangement whereby [A] lives principally with the mother (on the other). In other words, it was not suggested that the Court should order that [A] live principally with the father.
Findings in Relation to Facts
I have already made a number of findings, and will make others as I deal with the various steps that I am required to take. I shall also make findings as I deal with relevant aspects of the parties' evidence and the evidence of their witnesses.
I paid careful attention to the father and the mother, and the other witnesses, as they gave their evidence. The mother was an impressive witness. She made concessions when it was necessary for her to do so, and she gave credit when it was due. She remained calm, and she gave appropriate responses to the questions that she was asked. She appeared open and balanced. I find that she is a witness of truth.
The father was not an impressive witness. In my opinion, the father saw the proceedings as a form of battle between the mother and himself. Although he said that he wanted the shared care arrangement to continue because he considers the arrangement to be in [A]'s best interests, I find that the father (who clearly loves [A] and is devoted to her) is less concerned with [A]'s best interests than with his determination not to be defeated (as it were) by the mother. I find that the father was and is prepared to say anything that he perceives will assist him to succeed in his case. For example, the father admitted in cross-examination that he said (in his first affidavit) that [A] was unhappy with the week about arrangement because "I wanted (the case) to go my way". He also said that if the mother succeeds in obtaining orders to the effect that [A] is to live with her, then "I'll keep appealing it and appealing it until I get what I want".
The father instructed his solicitors to subpoena the mother's police record. After it became clear that the mother had no convictions of any nature, Mr Puckey cross-examined the father regarding his criminal record. After considerable probing by Mr Puckey, the father eventually admitted that he had convictions for a number of offences, including assaulting a police officer. When asked by Mr Puckey whether the father had sought the mother's record in order to try to gain ammunition to use against her, the father said (or said words to the effect of):
Of course I'd ask the Court to draw an adverse inference from her criminal record ─ but you should not draw an adverse inference from my record.
The father admitted that the only reason for his relocation to Shepparton was as follows:
In all likelihood the mother would get custody unless we were living in the same town ─ so I moved.
When asked whether he would remain in Shepparton if the Court did not order a week about arrangement, the father said (or said words to the effect of):
If the Court orders each alternate weekend, I'll go straight back to Melbourne. I still want [A] to live with me full time. I only changed my proposal because of the family report.
Whilst the father is capable of caring for [A] in a physical sense, I find that he is unable to understand the emotional complexity of a week about arrangement from [A]'s perspective, and that he is unable to meet her emotional needs because of that lack of understanding and his inability to communicate reasonably with and show respect to the mother. I shall say more about this subject later in these Reasons.
I am not satisfied that the father was candid with the Court. He was not always willing to make concessions when it was appropriate that he do so. I was not convinced by his attempts to distance himself from various criticisms that he had made of the mother in his affidavit material and in his text messages. He seemed unwilling to make concessions when it was appropriate that he do so. As I have already observed, he saw the proceedings as some form of battle between himself and the mother and, as a result, his focus appeared far more on himself (and the mother) and his own wishes or demands (and the perceived unfairness of the position in which he found himself) than upon [A]'s best interests. To that extent, his evidence demonstrated that he was self-centred, or self-absorbed.
In summary, where the evidence of the parties is in conflict, I prefer the evidence of the mother.
The father's evidence was replete with criticisms of the mother and attacks on her character. I do not accept any of those criticisms, unless they were specifically admitted by the mother.
My preference for the mother's evidence over that of the father does not arise simply because of the observations that I have made (or will make) in these Reasons. I accept, of course, that litigants can appear to be confident (or overly confident), or calm, or anxious in the witness box, and that such aspects of a witness' demeanour are not, of themselves, bases for disbelieving the witness. Nevertheless, I had ample opportunity to observe the sorts of factors described by Isaac J in Dearman (1908) 7 CLR 549 at 561:
A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type.
I shall now deal with aspects of the evidence presented by or on behalf of the parties.
The Family Report
The family report was prepared at a time when the father's case was to the effect that [A] should live with him and spend time with the mother each alternate weekend.
The following paragraphs from the report succinctly summarise the parties' case as it was at that time, and as it was presented to Mr Holland:
3. Ms Bartlett is seeking for [A] to live with her and to spend time with Mr Corey each alternate weekend. The application is brought in the context of Ms Bartlett’s concern to consolidate the living arrangements of [A] in preparation for her schooling commitments which will start with kindergarten in 2008 and prep in 2009.
4. Ms Bartlett believes the shared care arrangement is unmanageable in the long term due to the distance between the parties, and would like to consolidate [A]’s schooling, day care, and social context with her. She feels the original arrangement was brought about Mr Corey’s alleged controlling personality style and duress at the time of the separation, and has reservations that Mr Corey will not promote the relationship between her and [A] in the long term.
5. Mr Corey opposes the application and is seeking for [A] to live with him. He also believes that the living arrangements for [A] should change in response to her emerging school and social needs. He feels that Ms Bartlett does not provide the level of stability and continuity in [A]’s life that he and his partner Ms F are able to achieve.
6. He believes the stability, continuity, and family atmosphere he and his partner bring to [A]’s life is qualitatively better than that provided by Ms Bartlett, and as such, [A] will be more psychologically and emotionally adjusted as a result of consolidating the care with him. He expresses concern about
Ms Bartlett’s family of origin and believes that her past history and life style cast doubt on Ms Bartlett’s ability to provide continuity and stability in [A]’s life.In paragraph 9 of the report, and again in paragraphs 28, 29 and 46 of the report, Mr Holland refers to the father's "ultimatum" to the mother at the time of separation – to the effect that the choice available to the mother was either shared care (on the one hand) or for [A] to live with the father (on the other). Having regard to the history of family violence during the parties' relationship (in relation to which I have already recorded that I prefer the mother's evidence) and the father's controlling and intimidating behaviour towards the mother, I have no doubt that the "ultimatum" at the time of separation can be regarded as coercive.
In paragraph 13 of the report, Mr Holland wrote:
Both parties report dissatisfaction with the co-operation and communication around the current arrangement particularly since the application, and Ms Bartlett alleges that Mr Corey continues to be verbally abusive and controlling with her by text. Mr Corey alleges that Ms Bartlett’s lifestyle lacks structure, continuity, and stability. Both parties express the concern and belief that the other is not committed to maintaining [A]’s relationship with them.
In paragraph 25 of the report, Mr Holland records that the father said that he would consider moving to Shepparton "if the Court ordered that [A] lived with (the mother) for the majority of time". I note that this comment is in stark contrast to the father's evidence in Court ─ where he stated that he would return to Melbourne immediately if the Court were to order that [A] live with the mother for the majority of time. Although the father later sought to modify his comment in this regard, his later qualifications were unconvincing. In my opinion, it is doubtful that the father will remain in the Shepparton area if he is awarded anything short of a week about arrangement.
In relation to one of the father's criticisms of the mother, Mr Holland wrote (in paragraph 30):
Mr Corey’s belief that Ms Bartlett’s life style is unsuitable or in some way not child focused is not borne out by the material available to me. Ms Bartlett appears to have studied for and completed a [healthcare] qualification since the separation and juggled work, study, and parenting commitments throughout this period. Both parents have used child care of one form or another extensively to facilitate the shared care arrangement and their working lives.
In paragraph 33 of the report, Mr Holland wrote that there was nothing in the interview or affidavit material that would lead him to conclude that, on the basis of [A]'s level of attachment to her parents and the quality of her interpersonal interaction with them (together with the parents' capacity to nurture and parent appropriately), one household should be preferred over the other.
After discussing the attachment process in paragraphs 34 to 37,
Mr Holland described the week about arrangement as being "developmentally inappropriate" at the time that the parties entered into it. He added that, notwithstanding that fact, [A] appears to have emerged "largely unscathed, and with a relatively sound attachment to both parents".Mr Holland's conclusion was as follows:
In conclusion, despite the difficulties and developmental considerations alluded to in this report, it appears that the parents have been able to encapsulate their conflict and perceptions of each other enough for [A] to sustain significant attachments with both. [A] appears to be a resilient child with good adaptive functioning and this has also been instrumental in her adjustment. These particular psychological features of personality tend to be a mixture of environment and hard wiring of the brain at birth.
It is the report writer’s view that [A]’s best interests are served by an agreement between the parties that facilitates substantial time with both. However, in the event that this is not possible I have attempted to provide a clinical framework around the decision making that will facilitate the decision making process. It is likely that the primary attachment of [A] lies with Ms Bartlett, and if the allegations of systemic family violence are proved this would be a significant factor in considering Ms Bartlett as the primary care giver.
Mr Holland’s Evidence at Trial
Mr Holland's qualifications and experience were not disputed. His evidence at trial (insofar as it is relevant to the matters in issue in these proceedings) was as follows:
a)He confirmed that the week about arrangement entered into at separation was "developmentally inappropriate" at that time.
b)He said that intimidation and emotional abuse can be just as damaging as physical violence. Further, males and females often experience gender violence differently. For example; females record feelings of fear, including fear of catastrophic consequences. Males can experience low self-worth, low self-esteem and/or feelings of powerlessness or disempowerment.
c)Generally speaking, family violence is more inimical to females than to males.
d)The closer a child is to a parent who is the subject of family violence, the more inimical to that child the behaviour becomes.
e)In his opinion, if there exists a long term entrenched cycle of emotional abuse by one parent of the other, then it is in the best interests of a child of that relationship to have "block time" with each of the parents. In Mr Holland's view, mid-week visitation is onerous on children in such circumstances, because the child's anxiety is elevated when he or she has to move between homes and parents who are in conflict.
f)He confirmed that the father has strong views regarding the inadequacy of the mother's parenting arrangements.
Mr Holland was referred to the SMS text messages sent by the father (as recorded in the mother's affidavit, and in exhibit M1.) He confirmed that they comprise emotional abuse of the mother. They also reflect serious problems in communication. In turn, poor communication and significant conflict between parties is a contra-indicator for the likely success of a shared care arrangement.
Mr Holland said that whilst [A] might appear to be functioning satisfactorily at the present time (as a result of "a high level of adaptive functioning"), the continuation of a shared care arrangement which is characterised by poor communication, conflict and emotional abuse by one parent towards the other is likely to lead to [A] displaying psychological or other problems as she gets older.
In relation to shared parenting generally, Mr Holland said:
a)For an optimal outcome in shared parenting arrangements, there needs to be a sophisticated level of cooperation and communication between the parents ─ which, in turn, requires a very mature post-separation relationship.
b)That post-separation relationship must be free of any hint of emotional abuse and/or intimidation by one party towards the other.
c)Shared care is strongly contra-indicated if the above preconditions do not exist.
d)A successful shared care arrangement requires mutual respect between the parents, including an ability to communicate regarding the child whilst leaving each parent's own wishes out of the equation.
e)In the present case, there have been arguments between the parties regarding the discontinuance of [A]'s use of a pacifier, her proposed kindergarten and (for example) the time that [A] was to spend with the mother on her birthday. Arguments about such matters can lead to the making of poor decisions and amount to a further, strong contra-indicator for shared care.
f)In broad terms, shared care can work where the parties are able to cooperate with each other. If they are unable to do so, then a shared care arrangement can be detrimental to a child's best interests.
g)Shared care requires a level of communication and cooperation above and beyond the usual. If such communication and cooperation do not exist and operate effectively, then the parents' two worlds do not integrate and a shared care arrangement can become "terribly upsetting" for a child involved in it.
h)Shared care simply cannot work for so long as one party feels intimidated by and fearful of the other party.
At the conclusion of his evidence, I drew Mr Holland's attention to the father's attitude to the mother's foster mother and foster sisters.
I referred him to paragraph 4 of Ms C's affidavit and to the SMS text message appearing in paragraph 22 of the mother's trial affidavit. During the course of his cross-examination, the father had confirmed that he regards the mother's foster family as "scum" and that he feels the same way about most of the mother's friends. It is clear from the father's SMS text message and his comments to [A] that he has told [A] that the mother's foster family is not [A]'s family. Further, it is clear from Ms C's evidence that the father's comments confused [A] and caused her to become agitated and upset. Given that the mother loves and cares for her foster family and that she treats them as her "real" family (as it were), I inquired of Mr Holland as to the impact that the father's attitude and behaviour is likely to have on [A]. At the same time, I contrasted the father's attitude to [A] calling the mother's foster mother "Nanna " and her foster sisters, "Aunty" with his attitude to [A]'s propensity to call Ms F, "mummy F" (and the evidence reveals, of course, that the mother did not object to [A] using this term in relation to Ms F).In response to the matters raised in the previous paragraph, Mr Holland said (or said words to the effect of):
The mother talked to me about this when we went through the interview process, and it was clear to me that she identifies with her foster family as her psychological family ─ and that is as potent and as strong as any biological connection. For the father not to recognise the importance of that for the mother and, as a consequence, for [A], is potentially detrimental for [A]. It is confusing and detrimental for [A], and it is a denial of the mother's reality. It has the capacity to cause "splitting" in the child and to confuse her. It can also be construed as part of the spectrum of abusive behaviour on the part of the father.
In my opinion, Mr Holland's evidence strongly supports a conclusion to the effect that equal shared parental responsibility is inappropriate in the present circumstances, and that a shared care arrangement is not in [A]'s best interests.
The Mother’s Evidence
I have already referred to the mother's evidence in general terms.
In relation to [A]'s contact with Ms G (the father's mother), the mother said that it; "just sort of stopped" around the time that she completed her [healthcare] course and commenced the current proceedings. She confirmed, however, that [A] has a close relationship with Ms G and that she is happy to encourage [A]'s contact with her. In her affidavit, the mother deposed to having remained in a cordial relationship with Ms G after separation and confirmed that Ms G frequently helped her by taking care of [A]. The mother said that she has left it open with
Ms G if she wishes to see [A].Annexure AMB 4 to the mother's trial affidavit comprises transcripts of various conversations or SMS text message exchanges between August and November 2007. On 9 November 2007 the father sent the following message to the mother:
The only stability [A] has when she is with you is mum and you have stopped taking her there after all she has done for you.
In response, the mother wrote:
She is welcome to call and ask if she can see her. I haven't stopped her from anything.
The father then replied:
What, you reckon she is going to call you after you used her when you needed her and now you don't? She never hears from you. Come off it [Ms Bartlett], you should be calling and offering her …
In her affidavit, Ms G says that:
Since completing her [healthcare] course, (the mother) has simply stopped all contact with me.
She continues:
I am otherwise unable to (see or spend time with) [A] whilst she remains in (the mother's) care.
There is simply no evidence ─ from the father or from Ms G ─ to the effect that Ms G has made any attempt whatsoever to see [A] (while [A] has been in the mother’s care) since the mother completed her [healthcare] course. I accept the mother's evidence to the effect that she is quite prepared to encourage contact between [A] and Ms G. In my opinion, there is no onus on the mother to take the first step in that regard (particularly given the animosity that the father has displayed towards her and the existence of the current proceedings). In my opinion, it is not unfair to conclude that "the ball was in Ms G's court" (to use a colloquialism) ─ especially given the communication between the parties on 9 November 2007.
It was suggested to the mother during cross-examination that communication between the parties only started to break down in August 2007. At other times, it was suggested by the father or
Mr Fitzpatrick that communication only became a problem after the commencement of the current proceedings. The mother said (and I accept) that the communication problems existed well before August 2007 ─ and therefore well before the commencement of these proceedings (which was in November 2007). She said, for example, that she received aggressive SMS text messages from the father well before August 2007. The mother did accept, however, that the parties’ relationship (which had been strained since separation) deteriorated after she commenced the current proceedings.The mother was cross-examined regarding her allegations of family violence, and I have already recorded that I accept her evidence in relation to this subject. Relevantly, I accept her description of the various incidents of family violence described in her affidavit.
When questioned about the fact that [A] appears to be a happy child and that the week about arrangement seems to have worked well, the mother responded:
It’s worked as well as it has because I haven't reacted to much of the aggression directed towards me.
The mother accepted that the father's relocation to Shepparton would have the effect of relieving some of the pressure on [A], but not all of it.
The mother denied that there had been a firm agreement to the effect that she would relocate to Melbourne when she completed her course, although she acknowledged that such a relocation was a possibility. At the end of the day, nothing turns on either party's evidence relating to this subject. That the mother might relocate to Melbourne was simply not put forward as a proposal by either party.
Mr Fitzpatrick cross examined the mother regarding an allegation by the father that she had assaulted him when he was defenceless. The mother explained that the incident to which the father referred occurred when [A] was a baby. The parties had been out and the father had "drunk himself into oblivion". When they arrived home, the father collapsed on the road and the mother was unable to move him. The mother placed [A] safely inside the house and then found herself struggling to get the father up and into the house. She admitted that she became frustrated and that she kicked him and hit him in an attempt to force him to get up. She also admitted that he was defenceless at the time.
Mr Holland's evidence was to the effect that [A]'s exposure to the father's attitude regarding the mother is likely to lead to psychological problems for her later in life. It is only because [A] appears to be "a resilient child with good adaptive functioning" that the father’s behaviour has not had a more obvious impact up to this point in time. There is clearly a need to protect [A] from that form of psychological harm.
In my opinion, this factor clearly favours the mother's proposals over those of the father.
Child's views
[A] is a very young child. Neither party suggested that her views are relevant.
Nature of relationship
I accept the mother's evidence that she was the primary carer for [A] prior to separation, although I also accept that the father assisted the mother to a very considerable extent when he was available to do so. The mother readily conceded that the father is "a good father" and that he is more than capable of physically caring for and supervising [A]. The father has a close bond with [A], but I accept Mr Holland's evidence to the effect that [A]'s primary attachment is likely to be to the mother. I find, as Mr Puckey submitted, that [A] has a "secure, secondary attachment to the father". I also find that the mother has done far more than the father to protect [A] from involvement in the dispute between the parties.
[A] has a close and loving relationship with both her parents. I have no doubt that they each of her dearly and want the best for her.
[A] also has a close and loving relationship with Ms G, and with her (foster) "Nanna" and aunts. Subject to comments that I have made elsewhere in these Reasons regarding Ms F’s attitude, there is nothing to suggest that [A] has anything other than a close and loving, and positive and appropriate, relationship with her.
Clearly, [A] has no relationship with the mother's (biological) parents.
In my opinion, the mother's proposals better meet the requirements of this factor than do the father's proposals. This becomes even more apparent when regard is had to the father's extremely low opinion of the mother's (foster) family and his clear reluctance to encourage [A]'s relationship with them. I accept the mother's evidence to the effect that she has not deliberately sought to impede [A]'s relationship with the father's mother, and I have no doubt that Ms G could have seen [A] whenever she chose (within reason) if she had simply approached the mother with such a request. I have no doubt, as well, that the mother will not prevent Ms G from seeing [A] in the future.
I note, of course, that the father was critical of the mother (including in text messages) for (allegedly) not allowing his mother adequate contact with [A]. Given that the parties had implemented a week about arrangement, it is apparent that the father was in fact criticising the mother for not allowing contact between [A] and Ms G during the mother's week. There was, of course, nothing to prevent the father ensuring that Ms G spent time with [A] during his week. On the other hand, the mother certainly did not expect the father to ensure that [A] spent time with her (foster) family during the father's week ─ and there is absolutely no doubt (given the father's view of them as "scum" and "hillbillies") that, even if the mother had asked him to allow some contact, he would not have allowed them anywhere near [A].
Facilitation and encouragement of the relationship between child and parent
As discussed elsewhere in these Reasons, I find that the mother is both willing and able to facilitate and encourage a close and continuing relationship between [A] and the father. I have grave doubts, however, whether the father is willing and able to facilitate and encourage a close and continuing relationship between [A] and the mother. I have already found that [A] has employed some of the terms used by the father, such as "scum" and "yucky". Clearly, the father’s negative and hostile attitude towards the mother has had an impact on [A].
Mr Fitzpatrick submitted that the court should accept that the father's attitude towards the mother is likely to change, and that his contempt for and hostility towards her have either subsided or at least begun to subside. I regret that I am unable to accept Mr Fitzpatrick's submission in that regard. I find that the father’s attitudes towards the mother are very deeply entrenched, and they are complex. He was unable, for example, to explain why he chose to use the word "servant" as part of his denigration of her. I find that the father is unable to understand the emotional complexity of a shared care arrangement from [A]'s perspective, and that he is unable to meet her emotional needs because of that lack of understanding ─ coupled with his inability to communicate reasonably with and show respect to the mother. The mother's affidavit material (and the father's own evidence) is replete with examples of how the father really feels about the mother. To be added to the above is the unexplained inconsistency between the father's extreme discomfort with [A]'s reference to the mother's (foster) family as, for example, "Nanna" and "Aunty" ─ because they are not [A] is "real" family ─ and the father's acceptance of [A]'s reference to Ms F as "Mummy [F]".
I find that this factor favours the mother's proposals over the father's proposals.
Effect of changes in child's circumstances
The father’s case changed completely shortly before the trial. Until then, his case was to the effect that [A] was being adversely affected by the week about arrangements, that she was extremely happy and settled in [X] and that the court should order that she lives with her father and Ms F on (more or less) a full-time basis.
I have already dealt with the father's expressed reasons for his complete about-face. Even so, the father said that there are "1000% better opportunities for [A] in Melbourne", and that the only reason why he abandoned his plans for raising [A] in Melbourne was his fear that the mother might succeed in these proceedings.
During his cross examination, the father admitted that he was sure that [A] would prefer to be in one place, but that she is otherwise happy. He also said that, at the time that he responded to the mother's application, he thought that the stability of living principally in one household was better for [A] than a shared care arrangement.
A little later in his evidence, the father said ─ in stark contradistinction to almost of his other evidence ─ that the mother is "probably just as good a parent as (he is)".
Clearly, the father's relocation to Shepparton has caused a very significant change in [A]'s circumstances. On the positive side, for example, she no longer has to endure the lengthy travel between Melbourne and Shepparton each week. In theory, the fact that the parties lived relatively close to each other should augur well for the success of a shared care arrangement. But the problem in the present case is not the physical arrangements that the parties have made for [A]'s welfare ─ it comprises the father's attitude to the mother and his inability to communicate effectively with her. At various times in his evidence, the father said that he would return to Melbourne immediately if he was not successful in obtaining a shared care arrangement. At other times he appeared to moderate this view, but I regret to record that I have no confidence that the father is likely to remain in Shepparton if the court orders that he is to have what he might perceive as significantly less than shared care.
The father's proposal provides for the current shared care arrangement to continue. The mother's proposal requires a reduction in the time that [A] spends with the father. Both parties initially said that [A] was unhappy with a shared care arrangement. The mother maintained that view, but the father altered his case in the manner described above. There is no doubt that [A] has coped with the shared care arrangement to date and that it does not appear to have caused her any significant psychological or other harm. As she grows older, however, and as she commences her formal education, she is likely to require greater stability in the form of an accepted "home base". That was both parties’ initial view in these proceedings, it remains the mother's view and I suspect that it still remains the father's view. I would add that
Mr Holland did not recommend the continuation of the shared care arrangement in all the circumstances of the present case.There is a long-standing status quo in favour of a shared care arrangement. To terminate that arrangement and to put in place an arrangement that involves her living principally with the mother is a significant change. Although such a change is likely to have some impact on [A], in the sense that it would require an adjustment on her part, there is no evidence to the effect that the change would affect her adversely, or that she cannot adjust. Nevertheless, it is fair to say that this factor probably supports the father's proposals over those of the mother.
Practical difficulties and expense associated with contact
Neither party suggested that this was a relevant factor in the context of the matters in issue in these proceedings.
Capacity to provide for the child's needs
I have already dealt with the father's attitude to the mother, and his behaviour generally. Mr Puckey submitted that the father is "filled with hatred and contempt for the mother". He urged the court to analyse the text messages sent by the father, arguing that they were clearly intended to undermine her confidence and her standing. He suggested that the messages show far more than simple anger or frustration on the father's part, and referred to Mr Holland's description ─ in another context ─ of the father denying the mother's reality.
Mr Puckey also submitted, and I accept, that young children such as [A] are totally dependent on their parents. Their primary attachment figures are the fundamental anchor points in their life. There is a clear risk that [A]’s secure attachment to her mother will be undermined if the father does not ameliorate his attitude and his behaviour, and if [A] continues to be exposed to the negative manifestations of both.
Mr Puckey further developed the above submission by emphasising [A]'s need for her attachment figures to be able to cope in their parental roles. He described the father is having violently attacked the mother's emotional strength. The father's abuse of the mother did not comprise generalised insults; it was specifically directed to undermining the mother in her role as a parent, and to belittling her as a person.
Mr Puckey described the abuse as "focused on the destruction of the mother's soul". To the extent that the abuse was linked to the current proceedings, it was bullying and intimidating.I accept Mr Puckey's submissions as set out in the previous paragraphs. On the basis of those submissions, and for the reasons that I have already given elsewhere in this judgment, I have grave concerns regarding the father's capacity to provide for [A]'s emotional needs.
I have already found that the father has the capacity to provide for [A]'s physical needs, and there is no evidence to suggest that he cannot provide for her intellectual needs as well.
I have no concerns regarding the mother's capacity to provide for [A]'s emotional needs. I refer to my previous findings regarding the mother and note that Mr Fitzpatrick made no attempt to suggest that the mother is not capable of providing for all [A]'s needs, including her emotional and intellectual needs.
In my opinion, this factor clearly supports the mother's proposals over those of the father.
Maturity, lifestyle and background of the child and the parties
Neither of the parties suggested that this is a relevant factor. Nevertheless, and although I could have discussed the matter under one of the other headings in section 60CC, it is appropriate that I record the fact that I agree with Mr Puckey's submission to the effect that the mother, who came from "an impoverished childhood and an abusive relationship with the father" has shown remarkable character and maturity to rise above such disadvantages. As Mr Puckey suggested, many people with the mother's background remain comparatively uneducated, become involved in drug abuse, have multiple, unstable relationships and have the greatest difficulty extracting themselves from the more negative elements of their existence. It is to the mother's credit that she has educated herself to the extent that she has obtained [healthcare] qualifications, that she has arranged modest, but well furnished and clean, accommodation for herself and [A] and purchased a late-model small car. She continues to endeavour to save money, and she has enrolled in a further course to improve her qualifications.
Mr Puckey submitted, and I accept, that the mother is in fact "the complete opposite" of the type of person that the father would have had the court believe (at least initially) she is. In my opinion, she has shown considerable maturity and responsibility in dealing with the father’s attitude and behaviour, and in striving to improve her life and [A]'s life.
I do not suggest that the father has not demonstrated maturity and responsibility in his working life and in his relationship with Ms F. He has also provided well for [A] in a physical sense. But he has demonstrated considerable emotional immaturity in his behaviour towards the mother and in his complete failure or refusal to recognise that she is worthy of his respect (and admiration) as a person, and as the mother of his child.
Mr Puckey also submitted that the father's evidence regarding his visit to the mother's accommodation immediately before the trial was troubling. I accept his submission in that regard. The father was certainly not forthcoming as to the circumstances surrounding his visit. Nor is it possible to understand clearly from the father's evidence exactly how close he went to the mother's accommodation and what sort of inspection he made.
Mr Puckey submitted that the father is likely to "harass and stalk" the mother now that he lives in the Shepparton area, and to continually check what she is doing, who she spends her time with and whether she is properly (in his eyes) caring for [A]. I find that it is probable that the father will behave in this way. Nevertheless, it seems strange that, according to his evidence, the father never once sought to look at the mother's accommodation until his visit immediately before the trial. If the father was genuinely concerned about the inadequacy of the mother's living arrangements, then I would have expected him to inspect these arrangements well before he did.
To the extent that the maturity and background of the parties can be considered relevant apart from the other factors discussed in these Reasons, I find that those considerations support the mother's proposals over those of the father.
Attitude to the child and to the responsibilities of parenthood
I have dealt with this factor elsewhere in these Reasons, and there is no need for me to recast previous statements in a slightly different form.
Mr Puckey submitted that the father's text messages suggest that the mother should "just go away", and that the messages reflect how the father really feels. Mr Puckey argued that the father clearly believes that ─ in some way ─ [A] needs to be protected from the mother and her family. I have already found that there is much in Mr Puckey's submission in this regard, but I do not propose to ignore the fact that the father abandoned his initial proposal that [A] live with him and that the only proposal put forward by the father at trial involved shared care.
Unfortunately, the father's relocation to Shepparton is so recent that it is impossible to predict precisely how he will react to living so close to the mother. Given the father's long history of denigrating the mother, and his lack of respect for her, it is more than likely that he will ─ sooner or later ─ seek to interfere in her lifestyle and in her care of [A].
Although I shall refer to the question of family violence again under the next heading, I observe at this stage that domestic violence involves a significant failure in parenting, in that it involves a failure to protect the child’s carer, and to protect the child emotionally. Further, it is certainly arguable that the father’s failure to recognise and deal with his feelings of resentment towards and contempt for the mother prior to the concluding stages of the trial (long after the parties separated and began their co-parenting arrangement) ─ in spite of the fact that those feelings adversely impacted upon the mother and, as a consequence, upon [A] ─ demonstrates that he puts his own needs or wishes ahead of his responsibilities as a parent.
In all the circumstances, this factor tends to favour the mother's proposal.
Family violence
I have already made findings in relation to this subject, and regarding the father's behaviour both before and after separation.
In relation to this subject of family violence generally, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
1.The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
2.It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
3.In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
4.There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in s.60CC of the Family Law Act.
As I have already recorded, in Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) if also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs.
It is to the father's credit that he has agreed (through Mr Fitzpatrick) to undertake a further anger management course and to do a post separation parenting course. Mr Fitzpatrick urged me to accept that the father has the capacity to change, and to give him the opportunity "to prove himself".
There is no need for me to repeat the comments that I have made elsewhere in these Reasons regarding the father's behaviour and attitude. In my opinion, the father is not going to change, and this factor clearly supports the mother's proposals.
Orders least likely to lead to the institution of further proceedings
As indicated above, Mr Fitzpatrick urged me to give the father the opportunity to prove himself, and to demonstrate that he can communicate with the mother in a constructive manner for [A]’s benefit. Mr Fitzpatrick submitted that, if the father's behaviour continues as it has been in the past, then that would cause significant problems for any shared care arrangement.
Mr Puckey submitted that a shared care arrangement would be doomed to fail, and will not be in [A]'s best interests. In essence, he argued that [A] should not be made "a guinea pig" for an arrangement that did not work for her benefit in the past and is like unlikely to work for her benefit in the future.
Regrettably, I simply do not have confidence that the father will be able to deal effectively with his feelings of anger and resentment towards the mother, irrespective of the outcome of this case. The evidence before me reveals that the father seems to believe that any parent who cares for his or her child would behave as he has behaved. That shows a remarkable lack of insight. The evidence also reveals that the father is prepared to say or do anything to gain a result that he regards as satisfactory. In those circumstances, I am unable to confidently rely on his assurances that he will modify his behaviour in the future.
Equal shared parental responsibility
The presumption (in section 61DA) that it is in a child’s best interests for his or her parents to have equal shared parental responsibility does not apply in the circumstances of this case, and Mr Fitzpatrick did not suggest that it should apply. I have made clear findings to the effect that the father engaged in family violence.
Notwithstanding the fact that the presumption does not apply, I should still consider whether it is appropriate to order that the parties have equal shared parental responsibility for [A]. It was the case, of course, that the mother did not oppose an order for equal shared parental responsibility until the commencement of the trial. It is also the case that Mr Fitzpatrick did not oppose the amendment of the mother's claim to include an order for sole parental responsibility. It follows that the issue of equal shared parental responsibility was a live one throughout the trial.
Mr Puckey directed the court’s attention to Mr Holland's evidence regarding the necessity for parents to be able to cooperate in relation to shared care. Unfortunately, the totality of the evidence before me reveals that, although the week about arrangement functioned adequately from the time of separation, there were very few examples of the parties communicating effectively or acting co-operatively for [A]'s benefit in relation to major matters. Mr Puckey also submitted that, as night follows day, the parties will end up in dispute when they attempt to deal with important issues such as [A]'s education, health and living arrangements. He argued that such disputes will lead to an aggressive, abusive and probably belittling response on the father's part ─ because in spite of the fact that the father is well aware that the tone and content of his communication is inappropriate and that the mother finds it offensive and unhelpful, the father is unable to control himself (and, although recognizing approximately 1 hour later that he has behaved inappropriately, seems incapable of apologising for that behaviour).
In spite of Mr Fitzpatrick's submission to the effect that I should give the father a chance to prove himself, I do not have sufficient confidence in the father's resolve to confront and deal with his attitudinal problems to make an order that, in my opinion, is almost certain to lead to further significant disputes between the parties and, ultimately, to further litigation. In my opinion, an order for sole parental responsibility in the mother's favour is clearly in [A]'s best interests, because it will do much to terminate the significant friction that has existed in the relationship between her parents. I have already referred to examples such as the process of dispensing with [A]'s pacifier and the arrangements for [A]'s birthday. In addition, I have referred to the father's opposition to the mother sending [A] to the [U] Kindergarten for no other reason, so it appears, than the fact that it was the kindergarten chosen by the mother.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility. It provides that such an order is taken to require that a decision about a major long-term issue affecting a child be made jointly by the child's parents. In turn, such an order requires the parents to consult with each other in relation to the decision to be made about the relevant issue, and to make a genuine effort to come to a joint decision about that issue. Unfortunately, the evidence before me compels me to conclude that, at least until the father has shown very significant changes in his attitude and behaviour towards the mother, consultation (from the father's side) would be nonexistent. Similarly, I have no confidence ─ at the present time, at least ─ that the father could bring himself to make a genuine effort to come to a joint decision with the mother about major long-term issues. He simply does not place any value on her opinions.
In all the circumstances, I am not persuaded that it is in [A]'s best interests to make an order for equal shared parental responsibility. To do so would, in my opinion, lead to a continuation of friction between the parties which would inevitably impact adversely on [A]. I find that the mother can be relied upon to inform the father of all proposed arrangements that relate to major long-term issues. Similarly, she can be relied upon to consult the father and thereby ascertain his views before proceeding to make any important decision. In my opinion, she will respect his views and will take into account any constructive comments that he may wish to make. I have no doubt that her decisions in relation to [A]'s long-term care, welfare and development will be made with [A]'s best interests uppermost in her mind, and that she will not ignore, or trivialise the father's views.
I propose to make an order that the mother have sole parental responsibility for [A]. I also propose to make an order to the effect that the mother consult the father in relation to any decisions about [A]'s long-term care, welfare and development before making such decisions. Similarly, I will order her to inform the father of all relevant decisions once made.
[A]’s time with the Father
For the reasons that I have expressed elsewhere in this judgment, and having regard to the very clear evidence given by Mr Holland, I am not prepared to order that the parties have shared care of [A] and that she live with them on a week about basis. Their level of cooperation and communication is simply inadequate to allow for the continued success of such an arrangement.
In sections 60CC(4) and (4A), the court is obliged to take into account the parties’ "track record" in relation to matters such as the facilitation of the other parent’s participation in decision-making processes and spending time with the child. Events that have occurred and circumstances that had existed since the parties separated are particularly important
I recognise, of course, that the parties have implemented a week about arrangement since separation. The mother's evidence is that that arrangement has begun to impact adversely on [A]'s welfare. Until shortly before the trial, the father agreed that a week about arrangement was not in [A]'s best interests. Both parties emphasised the need for [A] to have a stable home base (as it were). It was only very late in the litigation process that the father asserted that he had changed his view and pressed for a continuation of the week about arrangement. I am satisfied that it is in [A]'s best interests to bring the week about arrangement to an end, particularly as she is about to commence her formal education.
As foreshadowed earlier in these Reasons, once shared care has been ruled out the only real dispute is in relation to the question of whether the time that the father spends with [A] should comprise four consecutive nights per fortnight or five consecutive nights per fortnight. Having regard to:
a)Mr Holland's evidence and the recommendation he made during the course of his oral evidence;
b)the need for stability in [A]'s life;
c)the general policy of Part VII of the Family Law Act, including the need to give careful consideration to issues such as substantial and significant time;
d)the fact that it is not impracticable for [A] to spend a relatively extended period of time with the father (for so long as he continues to live in Shepparton, at least); and
e)the circumstances that have existed since separation (including the fact that [A] is well used to spending extended periods with the father),
I have concluded that it is in [A]'s best interests that she spend five consecutive nights with the father each fortnight. In other words, and subject to further submissions from counsel as to timing, I propose to order that the father spend time with [A] from after-school (or kindergarten)on Thursday to before school (or kindergarten) on Tuesday in each alternate week.
Conclusion
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of "The Law" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the mother's proposals (as modified by me) are more likely to advance [A]'s best interests (which comprise the paramount consideration in these proceedings) than the father's proposals.
Given that, in my opinion, the father should spend as much time with [A] as is possible (and practicable) in all the circumstances, I propose to make orders in accordance with the Mr Holland’s spend time recommendation.
As I have explained above, I propose to order that the mother have sole parental responsibility for [A], and that [A] is to otherwise live with the mother.
I will now hear counsel as to the orders that are necessary to give effect to these Reasons
I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 13 June 2008
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