Beake & Harmon
[2021] FedCFamC2F 128
•6 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beake & Harmon [2021] FedCFamC2F 128
File number(s): DGC 3243 of 2020 Judgment of: JUDGE BURCHARDT Date of judgment: 6 October 2021 Catchwords: FAMILY LAW – parenting dispute about 4 year old child – both parents seeking primary residence – both parents re-partnered – child having good relationships with step-siblings in both households – child particularly close with younger step-sibling in father’s household – both parents sharing mirrored concerns at being excluded if they are not the primary carer – very poor parental communication – parents rejecting possibility of shared care – mother being primary carer for most of the child’s life – both parents critical of each other but father’s views more extreme – child not at risk in mother’s care contrary to father’s assertions – orders made for child to live in primary care of the mother Legislation: Family Law Act 1975 Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 2 Family Law Number of paragraphs: 96 Date of last submission/s: 20 August 2021 Date of hearing: 20 August 2021 Place: Melbourne Counsel for the Applicant: Mr Potter Solicitor for the Applicant: Simon Parsons & Co Counsel for the Respondent: Ms Borger Solicitor for the Respondent: Wakefield Vogrig and Boote Lawyers ORDERS
DGC 3243 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BEAKE
Applicant
AND: MR HARMON
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The parents have joint parental responsibility of X born in 2016 (“the child”)
2.The child live with the mother.
3.The child spend time and communicate with the father as follows:
(a)Each alternate weekend from the conclusion of kindergarten or school on Friday (or 4.30 pm on a non-school day) to the commencement of kindergarten or school on Monday (or 8.00 am on a non-school day);
(b)For one half of the school term and long summer holidays on a week about basis commencing the first week in 2021 and all odd numbered years thereafter and the second week in 2022 and all even numbers years thereafter, save that in the term 1 and term 3 holidays the child will spend an additional 3 days with the father as agreed, and in default on agreement at the end or commencement of the father’s block of time as applicable.
(c)From 3.00 pm Christmas Eve to 3.00 pm Christmas Day 2021 and each alternate year thereafter;
(d)From 3.00 pm Christmas Day to 3.00 pm Boxing Day in 2022 and each alternate year thereafter;
(e)For the father’s birthday if a school day from the conclusion of kindergarten or school until 6.00 pm or if a non-school day from 10.00 am until 2.00 pm;
(f)On the weekend which includes Father’s Day from 6.00 pm in the preceding Saturday until 5.00 pm Sunday; and
(g)By telephone at all reasonable times with each parent to encourage and facilitate the child speaking to the other parent.
4.The father’s time with the child be suspended as follows:
(a)From 3.00 pm Christmas Day to 3.00 pm Boxing Day in 2021 and each alternate year thereafter;
(b)From 3.00 pm Christmas Eve to 3.00 pm Christmas Day in 2022 and each alternate year thereafter;
(c)On the mother’s birthday if a school day from the conclusion of kindergarten or school until 6.00 pm or if a non-school day from 10.00 am to 2.00 pm; and
(d)On the weekend which includes Mother’s Day from 6.00 pm in the preceding Saturday until 5.00 pm Sunday.
5.In relation to the child’s birthday, the parent that the child is not spending time with will provide a minimum of 2 weeks notice to the other parent to collect the child on her birthday at the conclusion of kindergarten or school to 6.00 pm or if the birthday falls on a non-school day from 10.00 am to 2.00 pm.
6.Time occur at all other times as agreed between the parents in writing including via text message.
7.For the purposes of changeover, unless otherwise agreed between the parents in writing, it shall take place as follows:
(a)At kindergarten or school when the changeover time coincide with the conclusion and commencement of kindergarten or school; or
(b)Otherwise at the M Police Station.
8.All communication between the parents shall be via text message and will be about the child and their welfare, with all communication to be child focused.
9.For the purposes of interstate travel, the travelling parent will notify the other parent in writing of any proposed travel at least 30 days prior to the commencement of travel.
10.For the purposes of overseas travel, the travelling parent will notify the other parent in writing of any proposed travel at least 60 days prior to the commencement of travel.
11.Each of the parents shall, as soon as practicable, advise and keep the other parent informed of the following:
(a)Any serious illness or medical emergency involving the child whilst in their care including all details regarding the injury, illness, hospital location, medical practitioners and treatment required;
(b)Any specialist medical practitioners or allied health professionals for which the child is attending upon; and
(c)Their own contact details (or change of) including email addresses, residential address and mobile numbers.
12.Each of the parents shall be at liberty and are otherwise authorised to:
(a)Attend all school events and extracurricular activities for which parents are normally invited to attend
(b)Obtain from the child’s school, at their own expense, all notices, reports and school photographs;
(c)Liaise with the administration and teachers of the school concerning the educational development of the child; and
(d)Liaise with any medical practitioners or allied health professionals who are attending upon the child and to obtain any reports and information concerning the child from such professionals.
13.Each of the parents and their servants and agents shall be and are hereby restrained from:
(a)Discussing these proceedings or family law matters with the child, or in the presence of or within hearing of the child;
(b)Denigrating the other parent or any member of the other parent’s family in the presence or within the hearing of the child; and
(c)Doing any act or thing to discourage the child from having a meaningful relationship with the other parent.
14.In the event of any disputes with regard to the Orders hereof, or other matters that parents would normally be required to discuss for the purpose of ensuring the child’s best interest, both parties agree to attend mediation with the aim of resolving the issues, with mutually agreed service/provider.
15.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
16.The parents attend a Parenting Orders Program with Families E or similar provider.
17.The parents attend a Tuning into Kid’s program with Community Support Service F or similar provider.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Beake & Harmon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
This is a parenting dispute about the best interests of a child X born in 2016. Each of her parents want X to live predominantly with them instead of the existing arrangements which are eight nights with the father and six nights with the mother. The mother’s position has been somewhat nuanced from time to time but if I understand the matter correctly, she proposes that X live with the father each alternate weekend from Fridays after school till Mondays before school and the father’s position is that X should spend time with the mother each alternate weekend from Friday after school until Sunday 3.00pm.
The family report writer gave recommendations which favour in a sense both parties depending upon the Court’s findings as to certain matters and also posited the possibility of an equal time arrangement.
I confess that an equal time arrangement seemed to me to be one helpful way to proceed but both parents have completely opposed it and insist that the child must live with one or the other of them.
Both of these parents have their deficits but for the reasons that follow I propose to make the orders sought by the mother.
AGREED OR UNCONTROVERSIAL MATTERS
The mother was born in 1994 and the father was born in 1995. It would appear that they met when very young and commenced cohabitation in 2013. In 2014 the father started a business in which I understand he still works and there seems to have been some sort of a separation between the parties between January 2015 and February 2016, which the wife has described without challenge as I understand it as an on/off relationship. Self-evidently, there was some sort of a relationship because X was born, as earlier indicated, in 2016. The parties separated in April 2018 and initially X lived with the mother and spent alternate weekends with the father. In mid-2019 the mother suggested a week about relationship but what in fact eventuated was a regime where X spent nine nights a fortnight with the mother and five nights with the father. This was changed (albeit that how it changed is in issue) in January 2020 to an eight/six regime in the father’s favour.
At the end of 2018 the mother entered into a new relationship with Mr B who has one child, Y, who I understand to be about 12 years old. In early 2019 the father entered into a new relationship with Ms C, who has two children, Z aged eight and V aged five.
In 2020 there was a lamentable incident when at a changeover the parents had a tussle or fight about the physical possession of X’s teddy bear, in X’s presence. The parties have differing versions as to who was to blame but it is clear that each parent became the subject of intervention orders thereafter.
I have noted the incident of 2020 because although each parent blames the other roundly for the unfortunate and regrettable incident that occurred, it is emblematic of the broader positions each of them takes in relation to such differences as there are between them.
THE PARTIES’ AFFIDAVITS
I do not propose to traverse the parties’ affidavits in great detail. Much of what is contained in them is contained in the agreed or uncontroversial matters above. The following points are perhaps worth noting.
The mother’s first affidavit filed 23 September 2020 sets out a narrative of the relationship. Put broadly, she complained that the father diverted his energies very much to working and left the parenting very much to her, even though she had for a period of time assisted him with the bookkeeping in his business. She noted that from about 2019 onwards, and following the commencement of the father’s relationship with Ms C, the father started asking for more time and she offered fifty-fifty. The nine/five arrangement put into place was because of the father’s working arrangements. The mother deposed to having enrolled X in kindergarten Town D towards the end of 2019 but the father would not cooperate. The father unilaterally enrolled X in a different kindergarten. Kindergarten disputes continued in 2020.
The mother gave a detailed account of the incident in 2020. She deposed that the father attended for changeover and requested that she provide X’s teddy to him. The mother deposed to handing him the teddy and telling him that he would need to give it back and he responding that she “was not fucking getting it back”. The mother deposed to attempting to grab the teddy from his pocket and the father pushing her away and a scuffle which was interrupted by her partner. She deposed that X witnessed the entire incident. She complained that the actual care of X was predominantly being undertaken by Ms C.
Annexure 3 to her affidavit is a series of text messages passing between the mother and the father. On 26 June 2020 the father presented the mother with a written parenting agreement which she did not agree to. The texts dated 6 June 2020 show the father simply refusing to allow the child to be in the mother’s care unless she signed the agreement. Some of the father’s text is gratuitously insulting but I note that when he told the mother “she’s not leaving without an agreement in place” the mother responded “you can’t do that”. The father responds “legally I can actually if there’s no agreement in place.”
Annexure 5 are text messages dated 30 May 2020 in which the father relevantly says “we kinda need to sit down and talk about it future custody, etc., as me and Ms C have decided to go our separate ways so probably need to work things out moving forward”.
The father’s first affidavit filed 22 January 2021 gives details of his relationship with Ms C and deposes to shared care in mid-2019 together with a parenting plan signed on 1 January 2020. He further deposed to a revised parenting plan dated 3 July 2020.
The father also touched on the events of September 2020. He deposed “Ms Beake and I had a disagreement about X’s teddy bear and Ms Beake and Mr B became physically abusive toward me. While I was in the car with X, Ms Beake punched at me. X witnessed the whole incident. This was not the first time Ms Beake had been physically and abusive to me in the presence of X”.
I note that the father deposed that Ms C was completing a healthcare qualification and that X had been enrolled in day care on and from November 2019. The father deposed that all of the children in the household share a normal sibling bond and have wonderful relationships with X and V being particularly close as they are so close in age. The father went on having given details of his activities with X to assert that the mother had drinking problems.
The mother’s next affidavit filed 18 June 2021 is more accusatory in tone than her first one. She accuses the father of continuously lying to her and not being open to making arrangements about X. Inter alia she deposed to an incident on 7 June 2021 when the father complained that X’s throat was red raw and accused the mother of secretly giving medication without telling him. A series of Facebook messages of the conversation were annexed as 4. I note that the mother deposed that X had been taken to a child psychologist and the mother had been excluded.
Annexure 3 included a message sent on 7 January 2021 in which the father refused to contemplate any change to extant orders. Annexure 4 are messages about the sore throat in which the father roundly rejected the mother’s (ostensibly in my view entirely reasonable) responses and continued to accuse the mother of lying about X being okay when she was not. 5 is a further series of exchanges between the parents. It shows the mother inter alia asking about a psychologist’s report and the father failing to respond and the mother accusing the father of lying. In my view the exchange shows neither parent in a good light.
The father’s second affidavit filed 21 January 2021 has a number of complaints about the mother and attributes a perceived regression on X’s part to tension essentially arising from the time X spends with her mother and complains that the child often returns unwell from the mother and seeks to reduce time on Sundays because of the inconvenience of his collecting the child at the given hour. He deposes to taking X to Community Support Service G, something I note he had not sought the mother attend as well.
Ms C filed an affidavit on 19 August 2021. She is 28 years old and has qualifications in healthcare and is completing a degree in multidisciplinary studies. She deposed to the relationship commencing in early 2019 and their living as a blended family from 2019. She deposes to the close relationship between the children and is generally supportive of the father and critical of the mother.
THE INDEPENDENT MATERIALS – THE FAMILY REPORT
It should be noted that a report produced by the Department of Health and Human Services dated 8 February 2021 is in my view unremarkable.
The family report was made on 25 January 2020 in which Ms H outlines that the extant orders involved as earlier indicated an eight/six arrangement in favour of the father. She observed that the parties met at the ages of 14 and 15 respectively and commenced cohabitation in 2013, separating in 2018. She noted the period of separation between January 2015 and February 2016. She noted that following separation X lived primarily with the mother and noted the mother’s complaints of the father’s lack of time because of his work (paragraph 7).
She noted the change to greater time for the father in mid-2019 following the commencement of his new relationship (paragraph 9) and a January 2020 parenting plan for eight/six (paragraph 10). Ms H noted that the mother was open to some flexibility in her proposed alternate weekends for the father. The father was open to longer periods of time to a Monday when X was approximately seven years old (paragraph 17).
I have of course regard to the entirety of the report but would note that at paragraph 34 the report observed:
Mr Harmon expressed concerns for Ms Beake’s alleged volatility and propensity to become ‘fiery’ after consuming alcohol, albeit low levels, as well as her general heightened nature during disagreements. Mr Harmon reported during times of conflict or disagreement Ms Beake would often become animated, frustrated, verbally loud and at times abusive, which on one occasion escalated to Ms Beake allegedly pushing him during an argument. Overall Mr Harmon described the relationship to be characterised by high levels of verbal conflict. Mr Harmon expressed concern for X’s current and future wellbeing if continually exposed to this type of home environment, and he was worried X’s current anxiety type symptoms were attributed to her exposure of the conflictual coparenting relationship as well as a possible destabilising environment in dynamics when with Ms Beake. The father also referenced a change in Mr B’s daughter’s living arrangement out of his primary care as cause for potential concern and made him question if the home environment was safe and suitable.
The report noted the father’s version of the events of 13 September 2020 in broad outline (paragraph 35). The report noted the father’s concerns about the mother’s alleged drug use in 2015/2016 (paragraph 36). At paragraph 38 the report noted:
Mr Harmon made commentary about Ms Beake, describing her mental health as “not great” and by nature she had a “angry” and “fiery” disposition. Mr Harmon appeared to have formed the belief Ms Beake’s personality and parenting style/approach were, in part, responsible for the manifestation of X’s anxiety type symptoms. It was also reported Community Support Service G while clinically involved with X have identified ‘stress related symptoms’, have referred to a psychiatrist and allegedly made commentary to Mr Harmon about potentially withholding X from Ms Beake’s care moving forward. Mr Harmon advised whilst he does not want to do this, he is concerned about X’s overall wellbeing.
At paragraph 43 the report noted:
Ms Beake acknowledge some propensity for her arguments with Mr Harmon to have historically become escalated. Inclusive of verbal conflict in herself “slamming doors” in apparent frustration. Ms Beake reflected her conflict resolution style as talk things through however Mr Harmon would shut down and walk away which would wind her up.
Paragraph 45 of the report noted Ms Beake “provided a differing narrative to the allegation of family violence inclusive of assault and maintains there was a confrontation, which turned physical perpetrated by Mr Harmon, to which Mr B then became involved as a protective measure. Ms Beake acknowledged X was present for this altercation, which she felt was not acceptable, however did not reflect in depth about the impact this may have caused.”
At paragraph 53 Ms H opined:
It appeared the parties experience regular and consistent periods of conflict, lack both positive communication and negotiability, with issues remaining unresolved as well as compounding and becoming the foundation for ongoing conflict. This remains in place today and impacts negatively on their ability to co-parent and decision-make around important topics such day care/kindergarten, extracurricular activities, time with extended family, medical care and more broadly on how they view each other as parents.
At paragraph 55 Ms H continued:
On exploration both Mr Harmon and Ms Beake expressed a commitment to ensuring a positive relationship between X and the other parent and ensuring substantial spend time occurred, however equally both express trepidation and concern about the other’s commitments and capacity to do so. Both were concerned that should X not live with them primarily the respective parent would not ensure substantial spend time occurred which could result in a loss of relationship and connection with their household and extended family.
At paragraphs 62 to 63 the report continued:
Ms Beake reported noting signs of possible anxiety in X, inclusive of frequent tummy aches as well as biting her nails. Ms Beake reports having considered canvassing the support of psychological intervention in her area however felt that it may be a little premature and that it would resolve naturally once her primary residence was identified and implemented. Ms Beake advised that whilst she observed some level of unsettled behaviours when X was with her, this was inconsistent to the extent of what Mr Harmon and the Kinder had described. Ms Beake did strongly feel the current arrangements of shared care no longer worked and were not in X’s best interests, and further to this the lack of consistent routine had caused the anxiety type symptoms to emerge. Ms Beake articulated X needed grounding via a primary residence to ensure her ongoing emotional stability.
Mr Harmon reported observing escalating anxiety type symptoms in X’s presentation both whilst in his care and which had been noted by X’s kindergarten provider. Mr Harmon described X to be unsettled following spend time with her mother, particularly in the Sunday evening/Monday and noted she was taking longer to settle back into the routine in his care. X was said to be interacting less socially with peers, there was a sense of increased friction between her and V at times, her play, language and non-verbal expression would regress to more ‘infant-like’ with her level of independence fluctuating and becoming more reliant on her adult caregivers.
The report at paragraph 64 to 65 noted entirely unremarkable and appropriate contact with both Mr Harmon and Ms C and Ms Beake and Mr B with X.
The report noted further at paragraph 67 that the parents were in agreement that moving forward X requires a primary home but they fundamentally disagreed which one X should primarily live with.
At paragraphs 69 to 70 the report observed:
Both parties felt as though they no longer shared a similar parenting approach and style which was present during the relationship. They both however identified it was the other person who had deviated from this shared perspective and further attributed this to their current partner’s influence. They both appeared to feel somewhat unaligned and uninformed in relation to routines in each other’s home; however, when this was explored at interviews there appeared to be more similarities than differences. This indicated that some of their perceived conflict was more due to the impact of separation and the events surrounding this time, than differences in their parenting of X.
Interestingly, there are poignant similarities between Ms Beake and Mr Harmon’s narrative of how they experience each other during the relationship and post the relationship. These are inclusive of a loss of relationship with their respective fathers; concerns for possible infidelity; changes in parenting approach since meeting their current partners; and a commitment to supporting the future relationship between X and her non-residential parent coupled with the fear this would not be reciprocated. It is these four underlying elements which appear to underpin their concerns and inability to co-parent more positively and be inclusive of each other. Given both parties stated a desire to co-parent more effectively, it may be that by the parties acknowledging the similarities in their experience of the relationship and its breakdown could lead to less conflictual decision-making.
At paragraphs 72 and following the report continued:
It is concerning X is reportedly displaying behaviour such as nail biting, tummy aches, increasing periods of quietness, lack of concentration and various other unsettled behaviours which have been attributed to possible anxiety from Ms Beake and Mr Harmon. It is notable that both Ms Beake and Mr Harmon have identified changeover days to increase the level of unsettledness in X presentation and behaviours. This could indicate she is increasingly finding these regular changes over difficult to manage, both emotionally and psychologically. Given children of pre-school age are at risk of social and emotional regressions when their environment or those primary relationships are disrupted, unpredictable or in a state of flux, it appears plausible X has picked up on this. A lack of consistency or even a sense of possible unpredictability could be impacting on her, causing her to be confused, worried, or simply unsure about what is happening and what will happen regarding her future live with and spend time arrangements.
It is positive X has commenced engagement with ‘Community Support Service G’, however in the writer’s opinion the best clinical outcomes would occur if this includes a thorough understanding of both parental households, inclusive of strengths and vulnerabilities. It would be highly beneficial if any psychological support provided to X is inclusive of Ms Beake, unless there are significant risk issues identified the writer is unaware of, which place X at ongoing risk of harm based on this involvement.
If the Court accepted Ms Beake’s proposal, in this arrangement X would continue to build a strong relationship with her mother, Mr B and be afforded the opportunity to spend both alone time in this caregiving arrangement as well as some weekend time with her stepsister Y. X would also be able to participate easily in regular contact and connection with her maternal grandparents and Mr B’s parents. Ms Beake has demonstrated a sound commitment to attempting to involve Mr Harmon in decision-making which indicates a positive view of his parenting role which would hopefully be maintained into the future. Ms Beake has also demonstrated a focused and proactive response in regards to X’s continued education and learning and seems to value this as important. It is noted that this area has been in contention for some time resulting in some changes and likely instability for X. However, it does appear that Ms Beake may be marginally less attuned to X’s emotional care needs, which could impact X having these needs met through the latter stages of childhood and into adolescence. This arrangement would also result in changes to her routine, a change to her dancing classes, and a loss of time with Mr Harmon and Ms C, and her stepsiblings, all of whom have close relationship with X. There have also been concerns raised in regards to Ms Beake’s overall capacity to provide stability due to her own mental health and personality, which has been attributed to X developing anxiety type symptoms.
If the Court accepted Mr Harmon’s proposal, X would be able to continue forming positive and strong relationships in this household with Mr Harmon, Ms C and her two stepsiblings, Z and V. This arrangement would provide X with the opportunity to attend the same school as her stepsiblings, including being in the same grade as V in 2022. She would also likely have ongoing relationships with other children from her current kinder who would also transition to the same primary school, potentially making this transition period a little more predictable and potentially easier to navigate emotionally. X would also be able to continue in her dance classes and other activities with her stepsiblings. It is likely that Mr Harmon and Ms C would provide an emotionally stable and supportive environment; however this may not extend to Ms Beake’s role and relationship as mother moving forward in the future. This arrangement will also similarly to above result in changes to her routine and loss of time with Ms Beake and Mr B, her stepsibling and extended family networks, all of which appear important to her.
Whilst it is acknowledged that the majority of the concerns referenced are in regards to Ms Beake’s stability and personality traits, the writer viewed no evidence to suggest X would be at significant risk of harm in Ms Beake’s care. If Mr Harmon has misrepresented or embellished the anxiety/stress type symptoms of X and the concerns from ‘Community Support Service G’ then this would raise concerns and support Ms Beake’s assertion of him using manipulation and control. However, if X’s emotional and psychological wellbeing has been so negatively impacted upon and Ms Beake is unable to recognise the signs during spend time then this would raise these concerns for her ability to be emotionally present and tend to X care need, progressively as they become more complex.
The references to possible anxiety or stress related symptoms appear likely to be resolved by a greater level of consistency and stability achieved via longer blocks spend time with less frequent transitions. Unless psychological assessment being undertaken now or in the future assess otherwise, then it is the writer’s opinion that both parents would likely be able to provide safe and relatively stable home environments. An option which was discussed at interview would be for X to reside with one parent and spend extended alternate weekends, from school pickup on Friday until Monday morning. Whilst this would involve some increased travel time for X, and may not be appropriate in 2020, come 2021 at the commencement of primary school she may have developed more appropriate levels of resilience to begin such an arrangement. This could also include a midweek dinner on Thursday (or as agreed between the parties) of the alternate week between 3 pm and 6 pm with the parent travelling to X, and a phone call at least once a week on a Tuesday between 5.30 to 6 pm (or as the parties agree) initiated by parent. This will assist X not spending as long blocks away from her normal live-with parent and ensure regular and consistent contact.
Whilst not proposed by either party, there is a further option, being to keep the current shared care arrangement in place, with an extension to spend time to include a ‘week about’ arrangement in each household. This would however require and enrolment for X at a local primary school that is midway between the parties’ current homes, ie, Town J or Town K. The disadvantage of this option would be the potential complication of X developing primary peer relationships in a suburb in which she does not primarily reside in. However, the advantage to this option would be that X would experience longer blocks of spend time in each household, she would retain physical spend time with each parent, step parent, and step siblings which would positively maintain these relationships and connections.
Based on the information available to the writer, both of the parents appear as ‘good enough parents’ who are likely to be able to provide a relatively stable environment. It is important for X’s emotional wellbeing and ongoing development that her relationship with both parents is supported. Therefore when analysing the competing proposals made by the parties, it is also important to take into account how each of the parties have demonstrated a willingness/capacity to support X’s relationship with the other parent. Mr Harmon, whilst stating a belief and commitment to the importance of X to have a relationship with his mother, also held concerns for X’s stability and her care and appeared to be less positive about Ms Beake as a person based on his relationship experience. Given this, Mr Harmon may be less inclined to support this relationship into the future lending strength to Ms Beake’s proposal, however he may have valid reason to hold these concerns.
In comparison, Ms Beake articulated a commitment to support the relationship between X and Mr Harmon and this appeared to be clearly demonstrated via her historical communication attempts to involve him in decision making for X. Despite the complicated relationship, Ms Beake did appear to still hold Mr Harmon in a positive regard and valued X’s relationship with him moving forward.
The report went on to recommend equal shared parental responsibility (paragraph 83) and recommended that if X was not at risk of emotional or psychological harm in the mother’s care, then she should live with the mother and spend substantial time with the father “as it assessed that Ms Beake would be more likely to support an ongoing relationship between X and Mr Harmon” (paragraph 84). The report recommended “If the Court finds there is evidence to support the concerns of Mr Harmon then it would be recommended that X live with her father and spend substantial time with Ms Beake” (paragraph 85). The report also recommended that the Court could consider a week about arrangement with school enrolment at a midpoint as an alternative (paragraph 86). The report recommended a number of ancillary measures designed to assist X and the parties.
THE EVIDENCE GIVEN AND SUBMISSIONS MADE AT COURT
The following is taken from my notes.
THE EVIDENCE OF THE MOTHER
The mother was called and adopted her affidavits as true and correct.
Under cross-examination by counsel for the father the mother confirmed that she lives in Town M with Mr B who has a 12 year old daughter, Y. Y spends alternate weekends with them. There was a parenting plan in January 2020. They had discussed a midpoint of Town K for kinder but the father was opposed because of the travel. That was why the mother was suggesting a midpoint. It would still be a one hour round trip. X is presently attending with her stepsister at kinder and they are very similar in age.
Counsel cross-examined about the incident in September 2020. There was the father, herself, Mr B and X present and a neighbour. They had very different versions of the events. She had never seen the father react like that.
The mother accepted she had told Ms H that she had escalated arguments. It was put that the father walks away but the mother said this event was out of character. The father had thereafter sought changeover at a police station. The mother confirmed that there were no charges arising out of the September 2020 incident but she had been interviewed by the police. She said that when she tries to justify matters it just leads to argument.
The mother confirmed that at a court hearing on 25 January 2021 she had agreed to an eight/six arrangement. She agreed that that arrangement had been confirmed three times since January 2020. She said that the father was not seriously interested in being involved in X’s life. He is very work-orientated and does not put her first. She thinks that the father’s interest has been since he has been partnered with Ms C. Ms C has children and he wants X to be a part of the family unit. The mother conceded that the relationship between the father and Ms C is no longer so chaotic. They were breaking up at the time of her first affidavit. The father had not asked her just once to look after X. She would reach out to him for help. She had no objection to Ms C’s parenting and trusted her to care for X.
Cross-examination turned to a message dated 19 August 2021. This was tendered as exhibit R1. It disclosed alleged sexual conduct by Mr L’s father towards X. She had not called Ms C straight away. She had not called the police nor Child Protection. She had told her solicitors but she had not taken action yet. She would like to discuss it with the father but he does not respond. She is baffled by the disclosure. X had told her that she had brought this up with Ms C in the past. X said this to her the previous day (the hearing was, of course, on 20 August 2021). She asked X if she had told Daddy and she said, “No, but I have told Ms C.” She did not say when this occurred. The mother said Mr Harmon often does not believe what she said so she offered for him to ask X. When X brought it up it was a laughing matter. She thought that Mr L was V’s father. Counsel put it that she was asking X to discuss time with the father when she was three years old. The mother said X used to say she did not want to go to the father’s house. She told her to discuss it with the father. She wanted herself to discuss with the father. X was saying the same thing in reverse to the father. This is probably something the child should not deal with.
The mother was asked if X was showing fidgets and anxiety and she agreed. It was put to her that this was because the mother was involving her. The mother said she had done this but ceased when court started. It was put that she had accused the father of lying about his whereabouts. The mother said she was not asking X. She says how was your week. When X is sick she offered to come and get her earlier because she was in the care of a step-parent when she could be with her mother. She does not mind what is in the father’s life. She thinks X will return to normal after she is the primary carer. She does not know what is causing X’s problems. She conceded that X and V go to the same kinder and would be in the same prep. She thought that X had been at this kinder since November 2019. X has not been doing so well in the last couple of letters. On days with her X is more bubbly. On Thursday she is unsettled but then back to her normal self. She has no concerns with the kinder itself.
The mother said Y was a very good mentor for X. They play together and have a brilliant relationship. They sometimes go to the grandmother’s house. She would still be involved if X was with the father. Her option would change school and take her from her kinder friends. It would also take her from her step-siblings on school days and would reduce the father’s time. The mother said it was a lot of change but it was for the better.
There was no re-examination.
THE EVIDENCE OF THE FATHER
The father was called and adopted his affidavits as true and correct. He was familiar with the text message R1 and thought these were false allegations. He said they were untrue. He clarified and indicated that the mother had invented the incident.
Under cross-examination counsel for the mother immediately asked the father why he thought the mother was inventing the incident of the recent disclosure. The father said she had done similar stuff before. He knows Mr L very well and would not expect it. It will have to be looked into further. You can’t just let it go. Mr L is Mr L. The disclosure is concerning but X is not at risk because she is not alone with him. There is no likelihood of a sleepover with Mr L in the near future.
Despite these observations, when it was put to him that he has a low opinion of the mother the father said no. He agreed however that he calls her a liar. He said she is X’s mother and X will always need that relationship with her. When asked if the mother wants what is best for X the father said yes and no. Some stuff she is thinking about her. Counsel put it that the mother had messaged him about a fifty-fifty arrangement. The father agreed. He said that the mother kept asking for different money. They had always planned fifty-fifty but she would not let it happen. It was always their plan for fifty-fifty but she made it hard. The father agreed he had worked remotely for six months after separation. He said he was back every weekend and the weeks were often short.
When taxed with annexure 3 in which he had said that X would not be leaving if the agreement was not signed the father agreed he had sent this. The agreement was already in place. He agreed this was coercive behaviour. The first agreement was for six months. It was the same as the original one. The father said his partner is not working but is studying. He works half from home and half at work. He is a workshop manager. X always comes first.
Counsel cross-examined about the tonsilitis issue. The father said he was home all day and had to go to work in the afternoon. This was one hour before X was due to go back to the mother. The father agreed that the mother daughter relationship was important. When it was put that he was not good at promoting it the father said, “I do a very good job actually.” He had taken his daughter to the doctor and was asked if he had taken the mother. He said he had done what he was told to do by Community Support Service G. He was asked if he had told the service that if the mother was there X would not talk. He said this was not what he had done. He had read the family report and seen the recommendations. Counsel put it that the report found there was no risk to X in the mother’s care and he said he had never said that. Counsel put paragraph 84 of the report to the father (which recommended X live with the mother if there was no risk) and said he disagreed. He said the mother will not push the relationship with him at all. The mother had been prepared to help him out in the past but this would not continue. This was her behaviour lately. There were two incidents before the incident of 13 September.
Counsel cross-examined about the messages relating to X’s illness. The father said he thought she was lying again. She had tonsilitis on Monday. This was not an overnight thing. It was in the doctor’s report. She was not putting X’s best interests first. Counsel asked again if he had said X would not talk if the mother was there. The father said she would not open up as much if the mother was there. Counsel cross-examined on the medical records which asserted the father had said that X would not talk if the mother was around but the father said she may not open up as much.
Counsel put it he had a high level of distrust of the mother and he said that this was because of her actions in the past. She had not involved him in the kinder in the past. When asked what risks there would be to X in the mother’s care the father said when she gets angry she goes straight to screaming and yelling. He agreed he had sent a message to the mother saying fuck you and said there were other messages too and blamed her also for such conduct. When asked if there were any instances in front of X the father’s response essentially entirely blamed the mother and took no responsibility himself.
Cross-examination turned to the teddy bear incident. He said he gave it back to her and she still hit him. X was in the back seat and that he was in the driver’s seat and she punched him in the driver’s seat. Counsel asked if there were any issues about sleepovers at the maternal grandmother’s and he said there were none. X and Y were staying there by themselves. X said there had been a sleepover. The father confirmed he was happy to undertake a parenting orders program and the Tuning in to Kids.
There was no re-examination.
THE EVIDENCE OF MS C
Ms C was called and adopted her affidavit. In further evidence-in-chief she was asked if X had told her anything about a discussion with V about sexual conduct. She said this was false. X had never spoken to her about anything of the sort. She has only a very limited relationship with Mr L.
Under cross-examination by counsel for the wife Ms C said she was aware of the disclosure because she had seen the text message. She discussed it with the father. She read it to Mr L who was mortified. There was very little interaction with Mr L. She spoke with the father. She was shocked and they agreed that they should discuss it with V’s father. She did not contact the police or the department for advice. There was no need to take any action about her own children. She said she would discuss it with Mr L and let the father know. The father was just shocked.
The father is the sole income earner. He works a lot of hours on weekend when he does not have the children. He is usually back by 2 to 3 pm and sometimes as early as 12. He leaves at about 7 am. When the children go to school it will be fifty-fifty, him and her taking them to school the same as kinder. She was not aware the father says the mother is a liar. Their relationship is very high conflict. She hopes it improves after the case. She works hard to keep a relationship with her children.
THE EVIDENCE OF MS H
Ms H was called and adopted her report, that is, exhibit 1.
Under cross-examination by counsel for the mother Ms H said the father works in an administrative capacity or is a part owner of his business and has a range of hours with some flexibility. She had seen the texts about signing the agreement. She said this showed no effective problem solving between the parties. She was not sure if it was coercive conduct. Court proceedings can increase anxiety. Children X’s age pick up on their parents. The father had more concerns than the mother. Either household would be available to X. When it was put that week about was the least desirable outcome Ms H said children managed differently in different circumstances. Equal time would decrease the transitions. Both parents were concerned they would be cut out if they were not the primary parent. She thought that the mother was more positive than the father. Counsel put that the father calls the mother a liar and that this boded poorly for the future. Ms H said it indicated the parties’ inability to communicate. Both parents were however good enough.
Under cross-examination by counsel for the father Ms H said the parents talked about what happened if X lived with the other parent. The mother said she would support a relationship with the father and was positive about his role as a father. When it was put that the mother had said the father does not want to be involved in X’s life Ms H said this was not necessarily inconsistent with what she had said. She had said something like this to her with a reference in the past. She was surprised she still says that. Counsel put it that the mother is involving X in adult issues but Ms H said this was another example of poor problem solving. The parents have both disengaged from each other. Ms H agreed that X was very close to V and there would benefits if she stayed in the same household. When it was put that a midpoint school was not good for X Ms H said she still suggested it.
FINAL SUBMISSIONS BY COUNSEL FOR THE FATHER
Counsel submitted that this was an all or nothing proposition. The father did not ask for week about. This would not advantage X because of the travel to school and the disrupted relationships. The family report was not clear. The mother was said to have a more encouraging view of the father but the evidence did not support this. The mother admitted she did not believe the father wants to be part of X’s life. The mother directed X bring up issues with the father and the anxiety of X is linked to this. The mother had not called to make arrangements. The father was concerned the mother did not tell the truth. The mother had accused the father of lying to her in her affidavit of 18 January 2021. The Court cannot fix trust but the Court can make rules. The allegations of a sexual nature were not helpful. The parties will have to rely on court orders. The six/eight agreement started in 2020 and was reviewed in July. There were consent orders. The father was prepared to undertake the post-parenting separation course and the Tuning in to Kids program also. The father’s proposal offers the least change. There are close relationships between the stepsiblings. The mother admitted that there was no issue with the present kinder. The matters will alleviate when the case is over. The father is the more attuned parent and had taken steps to get the child assistance. Counsel referred to and adopted her case outline.
FINAL SUBMISSIONS BY COUNSEL FOR THE MOTHER
The mother does not seek sole parental responsibility. Counsel said the father was hiding the appointments with the psychologist. The father tells the psychologist about his intervention order against the mother but not hers against him. He says the child will not talk if the mother is there. The mother cannot move closer to the kinder because her partner owns the house in which they live. The father could move closer. The relationship with the stepmother and her children are not as important as the relationship with the mother. The father does not believe the mother’s denial about medication (the tonsilitis issue). It was submitted that there is a degree of immaturity of both parents. The parenting orders program and Tuning in to Kids orders should be made. It was submitted that if the Court ordered an equal time arrangement they would make it work but this was onerous on the child as it involved too much driving. Counsel submitted that it might be appropriate to give the father three nights additional time in one term school holiday of his choosing. He could have a 10 night block upon notice. It was submitted that there were serious controlling issues in the father’s behaviour. Counsel noted that the issue of the sexual conduct was raised the day before but the father simply said she was a liar. It was submitted he will not promote a relationship between X and the mother.
BRIEF OBSERVATIONS ABOUT THE CREDIT OF THE WITNESSES
Both these parents were on occasions somewhat evasive and non-responsive in their answers, particularly to questions which it seemed clear to me they regarded as being against their interests. The mother did not really seem to understand why involving X in adult issues was inappropriate but did at least have sufficient insight to realise that what X was saying to her was also what she was saying to her father. She was most reluctant to make concessions about X’s now relatively long-term satisfactory time at kinder.
One aspect of the father’s evidence that came across perhaps more clearly than he might have wished was his complete disdain for the mother. His insistence that the mother lied about the tonsilitis issue beggars belief. The mother had no earthly reason to deny giving X medication for a condition which had apparently become quite serious by the time X returned to his care. He does not even put it that the mother has been dilatory or feckless in her care of her. Rather he roundly accuses her of lying. When the mother has raised what to my way of thinking is a very serious allegation of possible sexual misconduct on the part of V’s father, the father’s immediate reaction is to accuse the mother of inventing it. From remarks made by his counsel it appears that this is even put at being at a level that it was invented the day before trial on purpose.
The mother’s response to this very recent development was understandably one of being somewhat taken aback but the father’s response is really quite extraordinary. The fact that he immediately accuses the mother of invention in the face of what on any view of the matter is a serious allegation (even if raised in apparently a humorous fashion by the child) shows that he has the very worst opinion of her.
THE STATUTORY PATHWAY
The statutory pathway is described by the Full Court in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
As things have finally devolved I do not understand there to be any dispute as to parental responsibility even though there has plainly been family violence in the form of the entirely lamentable fight over the teddy bear in September 2020. To the extent that there seems to be some lurking suggestion that one or other parent should have primacy of position in relation to where X goes to school, plainly she will have to go to school near the home of the primary residential parent but I see no reason why there should not be an order for joint parental responsibility in any event. Choice of school is not a unilateral matter for one party but something these parties will have to learn to deal with in a far more co-operative way than they have thus far. In my view the presumption is not rebutted but to the contrary should be complied with.
THE SPEND TIME AND COMMUNICATION ISSUES – THE PRIMARY CONSIDERATIONS
Section 60CC(2)
Both parents agree that it is in X’s best interests to have a meaningful relationship with each of her parents. There is simply no suggestion to the contrary despite the vivid criticisms that each parent makes of the other. The father has articulated a number of concerns about the mother as a caring parent but these have not in the ultimate been pressed with great vigour. I note that in any event following separation X was left in the primary care of her mother for a period of time and there is no suggestion that anything untoward occurred. Furthermore at the very least she has been in an eight/six arrangement with the mother for a further considerable period of time. It should be noted that the applications from each of the parents for primary residence are primarily put on the basis that the current parenting arrangements are unsettling for X. The father has sought to suggest that X’s health and general wellbeing are impacted by what he darkly assumes are inadequacies in the mother’s care and treatment of X but that was not the conclusion of Ms H. Having seen the mother and heard the mother give her evidence it is not my conclusion either. This aspect of the matter can be however more fully fleshed out pursuant to the additional considerations in section 60CC (3).
THE ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
X has not expressed any views in any meaningful way, which is unsurprising given her current age. She was observed to be entirely comfortable with both the father and the mother and their partners. To the extent that X may have said something to the effect that she might not want to be in the other parent’s home from time to time I accept that this is likely to be said in both households (to whatever extent it may have obtained) and should be given no weight whatever.
Section 60CC(3)(b)
It is clear from the family report and the evidence taken as a whole that X has a well-established and secure relationship with both of her parents. The evidence does not disclose whether she regards one or the other of these two parents as being the primary figure in her life. What I do know is that the father started his business in 2014 and this must have taken much of his energies and time. The parties were separated (on and off) until the start of 2016. As I understand it the mother was assisting with the bookkeeping for the father’s business (there was at one point a suggestion she was full time) but it seems more probable than otherwise to me that until separation the mother must have been the primary carer. She remained the primary carer for at least six months after separation while the father was working at a distance. It was only in mid-2019 that the preponderance of time moved to the father and even then the mother had very substantial amounts of time. The father is off to work by about 7 o’clock and it must surely be the case that when X is living with the father it is Ms C who attends to the early morning parental duties. I note, however, and accept that the father returns from work reasonably early and may well be able to play a more significant role in the afternoons and evenings.
X plainly has a very good relationship with Mr B and his daughter and more particularly with the maternal grandmother with whom it appears she is close. Similarly X obviously has a good relationship with Ms C (whom I should say at this point in passing struck me as being an excellent witness and a thoroughly commendable person with a measure of insight denied to both of the parents), and Ms C’s children. The evidence suggests that any relationship with V’s father is very limited.
Section 60 CC(3)(c)
Both of these parents have in my view taken appropriate steps in participating and making decisions about V and spending time and communicating with one another. It is perhaps unfortunate that their endeavours to participate in making decisions about her have led to conflict, for example in relation to the choice of kindergarten.
Section 60CC(3)(ca)
Both these parents have in my view properly fulfilled their obligations to maintain X. There is no reason to think otherwise.
Section 60CC(3)(d)
Both of these parents take the position that giving one parent a primary residential or role will be in X’s best interests. They opined that some signs of possible deterioration in X’s general circumstances and behaviour may arise as a result of the frequency of changeover and the unsatisfactory nature of the present almost equal time arrangements. What the parents in my view overlook through their lack of insight is the entirely accurate assertion by Ms H that children of X’s age pick up very quickly on their parents. I should make it clear that having seen and heard the mother’s evidence I have no doubt whatever that X is well-settled in her care and does not show to the same extent some of the behaviours that have concerned the father. While one has to approach this aspect of the matter with caution, I suspect that while she maintains a poor view of the father (something to which I will return) the mother is not as inherently suspicious and derogatory of the father as he is of her and thus is less concerned about the child returning to him than the father is about the child going to the mother. I think it is far more probable than otherwise that X’s difficulties stem from her perception of the tension between the parents (scarcely surprising given the dreadful incident in September 2020 about the teddy bear) than it is to do with the primacy of one parent’s care or the other. I would myself have been inclined to favour a shared care arrangement but given that both the parents are adamantly opposed to it, I am not going to force it on them. Furthermore, I think it might well, given their lack of mutual trust and capacity to communicate, face significant difficulties even leaving aside the logistical ones of transport and the like.
Whichever parent is given the primary role, there will obviously be deficits. If X lives with the father she will spend much less time with her mother and less time perhaps with her stepsister Y. She apparently has a good relationship with Y. Y’s weekend time has not been detailed to the Court and it is possible that if the weekends can be aligned that X’s time with Y might not reduce by all that much but on any view there would be a disruption to her life with her mother as she presently knows it which encompasses both substantial weekday and weekend time.
Conversely, and equally obviously, if X lives with the mother, then her time with her father will be reduced. So will her time with Ms C and more particularly her two children and particularly with the younger one. V has been a significant figure in her life for a relatively lengthy period of time. They attend the same kinder and would attend the same school (where Z as I understand it already attends), and this diminution would plainly be a deficit for her.
Both parents adopt the position that notwithstanding this, a change to the primary care of one parent is what is desired. Ms H has said that both are good enough parents, and it is therefore to be presumed that X will cope with the change that the parents are so determined to force upon her. I note that the mother conceded that her own mother would still be a figure in X’s life even if she lived with the father.
Section 60CC(3)(e)
The parties were at pains to emphasise the, as it was put, onerous nature of travel to a school at a midpoint in the context of discussion of a shared care arrangement. The parties actually live according to Google Travel about 43 minutes apart. Their residences are linked by a major highway. Travel of even 43 minutes is not in the scheme of things all that great. Many children in metropolitan Melbourne would travel 43 minutes to school let alone 20 or so minutes to the halfway point. This time and distance indicated in travel between their homes in my view has been considerably exaggerated by both parents. There is nothing to stop the arrangements for which each party contends working, including some element of midweek time if that were to be ordered. Nothing has been said that suggests that either parent’s household is particularly impecunious so the question of expense is not in issue.
THE CAPACITY SECTION 60CC(3)(F)
I start with the observation of Ms H that both of these parents are good enough parents. Having seen and heard them give their evidence I entirely concur in that assessment. Both of these parents have deficits. The mother it would seem has a temper but there has been no challenge in cross-examination to suggest that her relationship with Mr B is anything like that she had with the father. There is no evidence that the household of the mother is not now essentially tranquil and harmonious. The area of discord in her life is her relationship with the father as indeed is the case in his life with her. The mother has an attitude towards the father that of course is misconceived. She said quite clearly in evidence that she does think the father is really interested in being in X’s life. Given his determined pursuit of primary residency this assertion is obviously utterly misconceived (I have seen the father give his evidence and it is clear that he loves his daughter and wants to care for her). Nonetheless, this qualification aside, when not under the stress of a court proceeding and the deeply held fear that she may find her role in X’s life excluded, the mother was essentially positive about the father to Ms H. Her answer in the witness box was one that surprised Ms H. In my view, it springs from two things. First of all it is clear the mother was the primary carer when the parties were together and the father was not as I find anything like so much involved in X’s life as he now wishes to suggest he was. He had a fledgling business to pursue. Second, as I find the mother is deeply concerned as Ms H noted that she will be excluded if X lives with the father. This impelled the as I find atypical answer.
The father’s deficits lie squarely in the realm of his view of the mother. His views are as I find far more negative of her than hers are of him. He accuses her roundly of being a liar. True it is that the mother has also on occasion accused the father of being a liar but her conduct in this regard is relatively minor. The father goes so far as to accuse the mother quite ridiculously of lying to him about the child’s medication. There is as I have already said no earthly reason for her to do so. Plainly, he has no capacity to assess anything X says to him in any kind of considered or mature way if it gives him, as he will see it, ammunition with which to reproach the mother. At least the mother had the insight to concede that X was probably saying the same thing to the father as she was saying to her.
These parents are, I repeat again, good enough parents but their capacity to care for the child is to an extent compromised by their ongoing interpersonal hostility.
There is nothing in the evidence to suggest that both Mr B and Ms C are not wholly able to assist in providing for the child’s needs.
Section 60CC(3)(g)
These parents met when they were very young and became parents indeed at a very young age. They both struck as being surprisingly immature for their age. Much of their disputation has an almost schoolyard quality to it. Their descriptions of the teddy bear incident had all the hallmarks of a dispute between two children in a schoolyard. Each of them roundly blamed the other and took no responsibility for it whatever themselves, in marked contrast to Ms C, who struck me as being a mature and thoughtful person, they both struck me as self-centred in their approach to this matter and more particularly to the dispute they have about X. It is to be hoped that the parenting orders program and Tuning in to Kids program help them to develop a more adult approach to their differences.
Having said this, however, it should again be repeated that these are two otherwise perfectly decent law-abiding citizens who are no doubt doing their level best for their families and in the end there is nothing to suggest that X will not ultimately thrive whichever parent she predominantly lives with.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The father’s approach to the responsibilities of parenthood is in part laudable and in part compromised. He obviously wants to care for X and will involve himself very deeply in anything that will be necessary to promote her best interests. Where he fails, of course, is his desire to exclude the mother. He takes X to see a psychologist but makes sure that the mother is not there. He goes to Community Support Service G, gives them a markedly one-sided history of the matter to a point where Head to Help is even suggesting that he might withhold the child. His evidence about his failure to involve the mother was evasive and unsatisfactory. It is utterly against X’s best interests that the mother be excluded from such events and this exclusion is as I find merely illustrative of the father’s attitude towards the mother.
The mother’s attitude to the child is as best I can discern it simply that of a loving mother who wants to do her best. Unlike the father, she would not as the primary parent as I find be likely to exclude him in the fashion that she herself has been excluded by him.
Section 60CC(3)(j)
It is clear of course that there has been family violence. There were arguments and door slammings and the like during the relationship but there is no suggestion of any physical violence. This brings us to the utterly disgraceful teddy bear incident. I have no doubt that the mother gave the father the teddy bear and said she wanted it back. I have no doubt that he told her that she was not fucking getting it back as she alleges. She then very stupidly tried to grab it. It appears that she got it. I accept the father’s assertion that it ended up in the mother’s possession although I find that this is because she grabbed it. Mr B intervened and the father got in the car whereupon the mother punched him. In his evidence the father suggested (something I omitted to note earlier) that he was seeking to remove the teddy bear because X’s dentist had suggested she was sucking on it too much. One would have expected him to have said so and to have explained this the mother. Of course he did not. Both parents deserve equal criticism for this utterly lamentable, disgraceful, puerile incident. It is indeed illustrative of their immaturity that they could have allowed it to occur and all the more dreadful that it happened in X’s presence. Small wonder that X has become more tense and withdrawn as time has gone on ever since, especially since her parents have not managed to improve their interaction one iota in the meantime.
Section 60CC(3)(k)
There are of course intervention orders in place arising out of the teddy bear incident but they do not otherwise require further consideration.
Section 60CC(3)(L)
It is plainly desirable that there be final orders and everybody agrees that this is so.
Section 60CC(3)(M)
No one has suggested that there are any other relevant matters. The father’s case outline refers to the need to enrol the child in school but this decision would be handed down long before that decision needs to be made.
CONCLUSION
As may be apparent from a reading of this decision as a whole, in my opinion it is clear that the issue that really needs to be resolved is less the question of the spend time arrangements than the interpersonal dynamic between the parents. The reason this has been fought so hard is because each parent holds a mirror view that if they are not the primary parent they will ultimately be excluded from X’s life. Counsel for the father suggest that this was not a matter of any moment because the parties would have to obey court orders. While that is true at one level of analysis it ignores the parents’ fears and concerns which will continue to operate whatever orders are made. I would myself have preferred to explore in more detail the equal shared time arrangement because it would not be nearly as difficult in practical terms as the parties tried to suggest. As earlier indicated however in the face of the adamantine opposition of the parents and their present poor interpersonal communication, I am not going to impose it on them and indeed it would not be in X’s best interest to do so. In the end X will have to suffer the loss of moving to the primary care of one parent and the inevitable disruption of her relationships with the non-primary carer that will flow from it. There is just no way around it. At a level of general abstraction the Family Law Act would suggest, as indeed would only be consistent with human experience, that relationships with direct parents and siblings is more important than relations with step-parents and step-siblings as a general rule. Thus, while X’s relationships with Y in her mother’s household and Z and V in the father’s household are important they perhaps have slightly less significance than the relationship with the parents themselves.
Furthermore, and I may not have made this thus far as clear as I should, X is not at risk of emotional or psychological harm in the care of the mother. The vague assertions about the mother’s mental health and alleged drinking problems simply are not made out on the evidence. I agree entirely with Ms H that the mother is more likely to try and maintain X’s relationship with the father and his family than he is with her.
This is a finely balanced matter. As I have said, X would be okay in either household. What tips the balance for me is the very derogatory and negative view that the father has of the mother. To accuse her of inventing a matter so serious as an allegation of sexual misconduct by an adult on X, is quite extraordinary. It speaks volumes. While the mother’s response to it was to my way of thinking surprisingly insouciant, it should be noted that the incident had only occurred one day before she was giving evidence and in circumstances where she was extremely stressed no doubt as to the forthcoming trial. Both these parents have immature fears of exclusion by the other but the Court will make orders that will be obeyed.
In the end, my conclusion can be expected shortly. After weighing up all the matters to which I have referred I am of the clear view that X’s best interests will be met by living in the primary care of the mother, who has been the primary carer for the clear majority of her life. This was of course Ms H’s recommendation if I were to find (as I have) that X is not at risk in the mother’s care.
I propose to make orders as sought by the mother, but to include an additional three days in two of the term holidays. This will give X real blocks of time with the father and his family and will be in my view the orders that are in X’s best interests. The ancillary orders recommended by Ms H are also clearly appropriate and will be made, subject to the qualification that no one addressed, so far as I recall, the recommendation that the parents use a communication journal and parenting app. I will hear the parties about that matter before making final orders.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 6 October 2021
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