Beasley and Jeffreys
[2011] FMCAfam 713
•18 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEASLEY & JEFFREYS | [2011] FMCAfam 713 |
| FAMILY LAW – Parenting – dispute as to the time the step-father is to spend with the adopted 11 year old son of the mother where parties’ relationship is highly conflicted – orders previously made by consent in August 2009 – mother argued step-father’s application should be dismissed pursuant to the rule in Rice v Asplund – found significant change in circumstances because of the very strong views of child expressed to the Independent Children’s Lawyer and Family Report Writer – ordered child spend increased time with the step-father. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 64B |
| Rice v Asplund (1979) FLC 90-725 In the Marriage of Bennett (1991) FLC 92-191 Potts & Bims [2007] FamCA 394 SPS & PLS (2008) FLC 93-363 Marsden & Winch [2009] Fam CAFC 152 Aldridge v Keaton (2009) 42 Fam LR 369 Donnell v Dovey (2010) 42 Fam LR 559 Simpson v Brockman (2010) 43 Fam LR 32 |
| Applicant: | MR BEASLEY |
| Respondent: | MS JEFFREYS |
| File Number: | MLC 13517 of 2007 |
| Judgment of: | Bender FM |
| Hearing dates: | 9 & 10 June 2011 and 14 July 2011 |
| Date of Last Submission: | 14 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 18 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stoikovska |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Mr O'Shannessy |
| Solicitors for the Respondent: | Moores Legal |
| Counsel for the Independent Children’s Lawyer: | Mr O'Connell |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous orders in respect to the child [X] born [in] 1999 (“[X]”) be discharged.
The mother retain sole parental responsibility for [X].
Prior to the mother enrolling [X] in any school or authorising any major medical procedure for [X] (save in an emergency), the mother shall inform the step-father of her proposal and, in the event the step-father responds to such proposal in a timely manner, consider the step-father’s response and inform him of her decision.
[X] live with the mother.
[X] spend time and communicate with the step-father as follows:
(a)during school terms:
(i)commencing in the first week of each school term, or in the event the step-father is commencing his week offshore in the first week, commencing the second week of each school term, from after school Thursday to before school Tuesday and every four weeks thereafter;
(ii)commencing in the third week of each school term, or in the event the step-father is commencing his week offshore in the third week, commencing the fourth week of each school term, from 9.00 am Sunday to before school Tuesday and every four weeks thereafter; and
(iii)the time [X] is to spend with the step-father pursuant to orders 5(a)(i) and (ii) herein shall commence in this term only in the same cycle as is in place for [X]’s time with the step-father pursuant to the 6 August 2009 orders;
(b)in the school term holidays as follows:
(i)for five consecutive nights in the second term holidays as agreed between the parties and failing agreement commencing at 9.00am on the first full day the step-father is not at work after the last day of the school term for the school that [X] attends; and
(ii)for the whole of the third term holidays from after school on the last day of third term to before school on the first day of fourth term;
(c)for the second half of the long summer vacation in 2011/2012 and each alternate year thereafter, with such time to commence at 10.00 am on the day that is three days prior to the middle day in the school holiday period and conclude at 6.00 pm on the fourth day prior to the school year recommencing;
(d)for the first half of the long summer vacation in 2012/2013 and each alternate year thereafter, commencing at 9.00 am on the first Saturday of the holidays and concluding at 6.00 pm on the middle day of those holidays;
(e)from 5.00 pm Christmas Day to 5.00 pm Boxing Day 2011 and each alternate year thereafter;
(f)from 10.00 am Christmas Eve to 10.00 am Christmas Day 2012 and each alternate year thereafter;
(g)if [X] is not otherwise spending time with the step-father pursuant to these orders, from 10.00 am to 6.00 pm on Father’s Day;
(h)if [X] is not otherwise spending time with the step-father pursuant to these orders, on [X]’s birthday and the step-father’s birthday, subject to the step-father being in Melbourne at such times, as agreed between the parties, and failing agreement:
(i)if on a school day from after school to 6.30 pm; and
(ii)if on a weekend day from 11.00 am to 3.00 pm;
(i)by telephone each Monday of any week that the step-father does not spend time with [X], during either school terms or holiday time, between the hours of 7.00 pm and 8.00 pm, with the
step-father to initiate the call, the mother to facilitate such call and such call to be no longer than 30 minutes duration; and(j)as otherwise agreed between the parties.
If [X] is spending time with the step-father pursuant to these orders, such time shall be suspended as follows:
(a)from 5.00 pm Christmas Day to 5.00 pm Boxing Day 2012 and each alternate year thereafter;
(b)from 10.00 am Christmas Eve to 5.00 pm Christmas Day 2011 and each alternate year thereafter;
(c)for the first half of the long summer vacation 2011/2012 and each alternate year thereafter, with such time to commence after school on the last day of term and conclude at 10.00am on the day three days prior to the middle day of those holidays;
(d)for the second half of the long summer vacation in 2012/2013 and each alternate year thereafter, with such time to commence at 6.00 pm on the middle day of those holidays;
(e)for the whole of the first term school holidays;
(f)if [X] is not otherwise living with the mother pursuant to these orders, from 10.00 am to 6.00 pm on Mother’s Day; and
(g)if [X] is not otherwise living with the mother pursuant to these orders, on [X]’s birthday and the mother’s birthday, as agreed between the parties, and failing agreement:
(i)if on a school day from after school to 6.30 pm; and
(ii)if on a weekend day from 11.00 am to 3.00 pm.
For the purposes of [X] spending time with the step-father pursuant to these orders and unless otherwise specified in these orders, in the event [X] is not at school on the day he either commences or concludes time with the step-father, such time shall commence at 9.00 am and conclude at 6.00 pm.
In the event the mother intends to travel interstate or overseas with [X], she shall, no less than seven days prior to such travel, advise the step-father as to the intended destination, departure and return dates and ensure the step-father has a telephone number upon which he can contact the mother in case of emergency and speak to [X] in accordance with order 5(i) herein.
When spending time with [X] pursuant to these orders, the step-father is permitted to take [X] interstate or to country Victoria subject to the step-father:
(a)advising the mother by email no less than seven days prior to such proposed travel of the intended destination; and
(b)providing the mother by email details of where [X] will be staying when interstate or in country Victoria, including the address of such accommodation and a contact telephone number.
If the step-father travels interstate or to country Victoria with [X] pursuant to order 9 herein, the step-father shall:
(a)advise the mother by text message of their safe arrival at their destination within one hour of such arrival; and
(b)ensure [X] telephones his mother no less than every third day of any such travel between 6.00 pm and 7.00 pm Melbourne time.
To facilitate [X] travelling interstate with the step-father, the mother shall provide the step-father with a certified copy of [X]’s passport on or before 31 August 2011.
When [X] is spending time with the step-father pursuant to orders 5(b)(ii), 5(c) and 5(d) herein, the step-father shall be permitted to travel overseas with [X] upon the step-father providing to the mother 28 days prior to such time:
(a)written notice of his intention to travel overseas with [X]; and
(b)a full itinerary of the intended overseas travel including all flight details, details of any proposed tours or internal travel arrangements and details of where [X] will be staying including the name and address of any hotel and the address of any private accommodation; and
(c)a telephone number upon which the mother can contact the
step-father in case of emergency.If the step-father travels overseas with [X] pursuant to order 12 herein, the step-father shall:
(a)ensure he contacts the mother by text message within two hours of arrival to confirm [X]’s safe arrival;
(b)ensure [X] telephones the mother no less than every third day of any such travel at a time suitable to [X] and the mother; and
(c)otherwise enable [X] to telephone the mother upon [X]’s reasonable request to do so.
In the event the step-father notifies the mother of his intention to travel overseas with [X] pursuant to order 12 herein, the mother shall, within 14 days of such notification, provide to the step-father [X]’s passport. The step-father shall return [X]’s passport to the mother within seven days of their return to Australia.
The step-father shall be referred to as [X]’s “step-father” on all school and extra-curricular activity enrolment forms, including but not limited to school, after-school care, sporting teams and scouts, and shall be listed as the first emergency or alternate contact on such forms after the mother.
The step-father be authorised to:
(a)obtain copies of all school reports, school notices, newsletters and school photograph order forms, at his expense, that are generally provided by schools to parents or carers;
(b)obtain copies of all notices, newsletters and photograph order forms generally provided to parents or carers by the organisers of [X]’s extra-curricular activities;
(c)attend school events such as concerts, plays, sporting events, open days, school fetes, speech nights, Father’s Day or special person’s day activities, volunteer at the canteen and speak to [X]’s teachers, save that he is not authorised to attend formal parent/teacher interviews without the consent of the mother;
(d)attend [X]’s extra-curricular and sporting activities;
(e)be included as [X]’s step-father on any school or
extra-curricular activity telephone list and obtain a copy of those lists; and(f)attend and participate in school excursions when [X] is spending time with him pursuant to these orders where parents/carers are invited by the school to do so.
The mother shall advise the step-father by email no later than 72 hours after she:
(a)enrols [X] in any extra-curricular activity or sporting activity; and/or
(b)receives notice of the scheduling or re-scheduling of any of [X]’s extra-curricular activities, sporting activities or social functions to which [X] has been invited which will fall or are likely to fall during any period that [X] is scheduled to spend time with the step-father, including the location and time of the activity or function.
During the time [X] spends with the step-father pursuant to these orders, the step-father shall take [X] to any organised extra-curricular activity or sporting activity that [X] would usually attend and to any social functions such as birthday parties to which he has been invited, save that in the event such organised extra-curricular activities, sporting activities or social functions fall during the time [X] spends with the step-father pursuant to orders 5(b), (c) and (d) herein (being school holidays), [X]’s attendance at such events shall be at the discretion of the step-father.
Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other party to obtain information directly from any treating medical practitioners.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X], and from permitting any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Beasley & Jeffreys is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 13517 of 2007
| MR BEASLEY |
Applicant
And
| MS JEFFREYS |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the living arrangements for [X] born [in] 1999 (“[X]”).
[X] is the adopted son of the respondent, Ms Jeffreys (“the mother”).
The applicant, Mr Beasley (“the step-father”), was married to the mother from 2003 to 2006.
On 6 August 2009, Justice Dessau made detailed orders by consent, save for two relatively minor issues upon which Her Honour ruled, in relation to [X]’s living arrangements. Because of their detail and complexity, those orders are reproduced here in full:
1.That all previous Orders with respect to the child [X] born [in] 1999 (“[X]”) be discharged.
2.That the Respondent wife (Ms Jeffreys) retain sole parental responsibility for [X].
3. That [X] live with the Respondent wife.
4. That prior to the Respondent wife:
(a) enrolling [X] in any school;
(b) travelling overseas with [X];
(c)save in an emergency and as far as practicable, authorising any surgery or like major medical procedure for [X];
the Respondent wife inform the Applicant husband (Mr Beasley) of her proposal, and in the event of a timely response as to that issue from the Applicant husband, the Respondent wife consider such response and inform the Applicant husband of her decision.
5.That when the Respondent wife informs the Applicant husband of a decision concerning [X]’s welfare the Applicant husband do acts and things necessary to implement the Respondent wife’s decision.
6.That the Respondent wife provide in a timely manner to the Applicant husband the following:
(a)copy of school reports and school photo ordering forms and these to be provided at least within seven (7) days of receipt by her to the Applicant husband and the year book and supporting documents be returned within seven (7) days to the Respondent wife thereafter;
(b)information as to which extra-curricular activities [X] is enrolled in.
7.That the Applicant husband be referred to as [X]’s “stepfather” on all school and extra-curricular activity enrolment forms including before school and after school care enrolment forms and be listed as the first emergency or alternate contact on such forms after the Respondent wife.
8. That the Applicant husband be authorised to:
(a)obtain copies of all school notices and newsletters sent generally to the school community, directly from [X]’s school and from the providers of any extra-curricular activity;
(b)attend school events such as concerts, plays, sports days and school fetes and as a canteen volunteer save that he is not authorised to attend parent/teacher interviews or appointments with respect to [X]’s pastoral care unless these are consented to by the Respondent wife;
(c)be included as [X]’s stepfather on any school or extra curricular activity phone list, and have a copy of those phone lists.
8AThat (for clarity) the Applicant husband is not entitled by these Orders, without the consent of the Respondent wife to attend, or to make arrangements about school excursions and/or school camps and/or events save for the activities provided for in paragraph 8(b).
8B
(a)That the Respondent wife keep the Applicant husband informed of day school excursions where parents are invited to participate and where the Respondent wife consents he be permitted to attend; and
(b)the Respondent wife not unreasonably withhold her consent to the Applicant husband’s attendance.
9.That [X] spend time and communicate with the Applicant husband as follows:
(a)during school terms in the first week of a four (4) week cycle from the conclusion of school or 10:00 am if not a school day on Friday until the commencement of school or 6:00 pm if not a school day on Monday;
(b)during school terms in the third week of the four (4) week cycle from 6:00 pm Sunday until 6:00 pm Tuesday;
(c)from 10:00 am until 6:00 pm on Father’s Day;
(d)for [X]’s birthday and in the event that the Respondent wife is organising a birthday party for [X] then it be on a day he is living with her and the Applicant husband is on-shore and he be invited to attend that birthday party;
(e)during the school term holidays for five (5) consecutive nights during each school term holiday period as agreed, providing that if the Applicant husband intends to take [X] skiing for seven (7) nights it be for seven (7) consecutive nights during one (1) holiday, and in default of agreement the Applicant husband nominate the nights and provide the Respondent wife with at least sixty (60) days prior notice;
(f) during the long summer school vacation as follows:
(i) from 10:00 am Christmas Eve until 10:00 am Christmas Day in 2010 each alternate year thereafter;
(ii) for all the time the Applicant husband is not at work during the second half of the long summer vacation in 2009/2010 and each alternate year thereafter;
(iii) for all the time the Applicant husband is not at work during the first half of the long holiday in 2110/2011 and each alternate year thereafter;
(g)during school terms by telephone on each Monday and Thursday on the weeks the Applicant husband does not spend time with [X] between 7:00 pm and 8:00 pm with the Applicant husband to initiate the call and the Respondent wife to facilitate the call;
(h)by telephone each Monday between 7:00 pm and 8:00 pm with the Applicant husband to initiate the calls and the Respondent wife to facilitate the calls during school holiday periods during the weeks the Applicant husband does not otherwise spend time with [X].
10.That the Applicant husband’s time with [X] be suspended as follows:
(a) from 10:00 am until 6:00 pm on Mother’s Day;
(b)on [X]’s birthday from the conclusion of school until 6:00 pm if on a school day and from 12:00 noon until 6:00 pm if on a non-school day;
(c)at the Respondent wife’s direction and for the purpose of taking [X] away on a holiday she may suspend one (1) period of school term holiday time per annum upon at least sixty (60) days prior notice and provided that:
(i) on the next school term holiday the Applicant husband’s time with [X] is extended to seven (7) consecutive nights by way of some make-up time; and
(ii) the Respondent wife does not elect to suspend the skiing holiday time;
(d) during the long summer vacation as follows:
(i) from 10:00 am Christmas Day until 10:00 am Boxing Day;
(ii) for the first three (3) weeks of the long summer vacation in 2009/2010 and each alternate year thereafter; and
(iii) for the last three (3) weeks of the long summer vacation in 2010/2011 and each alternate year thereafter;
(e) as may be further or otherwise agreed.
11.That during the time [X] spends with the Applicant husband he shall take [X] to any organised extra-curricular activity [X] would usually attend and to any social functions such as birthday parties to which he has been invited.
12.To give effect to paragraph 11 herein the Respondent wife shall provide to the Applicant husband by email at least one (1) week prior to his time with [X] commencing, if practical, details of any extra-curricular activity or function during the time including the location and timing, and if not practical one (1) week prior to the time commencing, then as soon as practical and thereafter.
12AThat the Respondent wife be at liberty to telephone [X] at any reasonable time he is with the Applicant husband and in particular at least twice per week should [X] be on school
holidays with the Applicant husband.
13.That neither party denigrate the other or members of that person’s extended family in the presence or hearing of [X] or discuss the conduct of these proceedings with him or in his hearing or allow anyone else to do so.
14.That the Applicant husband not smoke cigarettes when in the car with [X] and not permit anyone else to do so.
15.That in the event the Applicant husband intends to take [X] interstate or overseas he provide the Respondent wife with at least four (4) weeks prior notice.
16.In the event [X] is not staying at the Applicant husband’s place overnight the Applicant husband advise the Respondent wife where [X] will be staying.
17.That all Applications per parenting Orders be otherwise dismissed.
18.That the Respondent wife’s Application for property Orders be adjourned for a telephone mention to a date to be advised to the parties being after 27 August 2009.
19.That Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED:
A.Notwithstanding these Orders the parties have agreed the Respondent wife and [X] are travelling overseas from
3 September 2009 and returning 25 September 2009 and the Applicant husband is to take [X] away camping from Wednesday 30 September 2009 until Sunday 4 October 2009.
B.That the first week of the four (4) week cycle in these Orders commence this week with the Applicant husband to spend time with [X] from Friday 7 August 2009 until Monday
10 August 2009, subject to a prior agreed arrangement for [X] to attend a friend’s Communion celebration.
C.The parties agree telephone calls between the Applicant husband and [X] are generally between 10 and 20 minutes.
D.These Orders are predicated generally and in particular the Orders as to holiday time upon the Applicant husband being employed on a week on/week off basis as he is currently
E.Paragraphs 8(a), (c) and 8A and 8B are Orders of the Court.
F.The parties agree that the Applicant husband will provide the Respondent wife with a copy of his work roster from time to time.
On 11 September 2010, the step-father filed a Contravention Application alleging the mother had contravened the 2009 orders on 12 occasions. The step-father also filed an Initiating Application seeking an increase in the time [X] spends with him.
The step-father’s Applications came before Justice Cronin on
13 October 2010. His Honour made orders consolidating the Contravention Application with the substantive proceedings, appointing an Independent Children’s Lawyer and otherwise made consent orders which clarified the 2010/2011 holiday arrangements, and telephone communication between [X] and the step-father, and for the parties and [X] to attend upon Ms S for the purpose of the preparation of a Family Report at the parties’ joint expense to be made available no earlier than 2 February 2011.
On 29 November 2010, the matter was transferred from the Family Court of Australia to the Federal Magistrates Court of Australia.
Having received the Family Report of Ms S, on 4 March 2011, the step-father filed an Amended Initiating Application in which he sought orders that the mother have sole parental responsibility for [X], that [X] live with her and spend time with him each alternate weekend from after school Friday to before school Tuesday, to increase to alternate weekends from after school Thursday to before school Tuesday. The step-father also sought orders in relation to school holiday arrangements, telephone communication, overseas travel and clarification of his involvement in [X]’s schooling and extra-curricular activities. The step-father’s proposal will be set out in detail in the body of this judgment.
I heard the step-father’s Contravention Application on 3 May 2011. Both parties gave extensive viva voce evidence. The mother was found to have contravened the 2009 orders once only and was ordered to attend and complete a post separation parenting program.
When the matter came before the court on 3 May 2011, Counsel for the mother indicated to the court that in respect to the step-father’s Amended Initiating Application, the mother would be seeking that it be dismissed on the basis of the rule in Rice v Asplund (1979) FLC 90-725, in that there had been no substantive change in circumstances since the making of the 2009 orders.
When this matter came before me for final hearing on 9 June 2011, the mother made an application that I hear the arguments and determine the question as to whether the rule in Rice v Asplund (supra) applied as a preliminary matter before embarking on a full hearing of the evidence. This application was opposed by the step-father and the Independent Children’s Lawyer.
It was argued on behalf of the step-father that there had been a significant change in circumstances such that the matter needed to be further heard by the court. The court was referred to the Family Report of Ms S, and in particular to the contents that set out the strength of [X]’s wishes to spend increased time with his step-father, as well as to the evidence heard in the Contravention Application as to the unworkability of the 2009 orders.
The Independent Children’s Lawyer opposed the mother’s application on the basis that it would prevent [X]’s very strong views being fully placed before the court.
That it is a matter for the discretion of the judicial officer whether they will determine the threshold question of whether the rule in Rice v Asplund (supra) applies as a preliminary matter or once a full hearing has been conducted is long established law (see In the Marriage of Bennett (1991) FLC 92-191).
Given the submissions of the Independent Children’s Lawyer and because of the evidence heard in the hearing of the step-father’s Contravention Application, I ruled that I would not deal with the mother’s argument in relation to the rule in Rice v Asplund (supra) as a preliminary matter but would consider it once I had heard all the evidence in the matter.
At the conclusion of the evidence, Counsel for the mother indicated that the mother’s primary position remained that the step-father’s Application should be dismissed in accordance with the rule in Rice v Asplund (supra).
The mother’s Counsel then submitted that if the court was against the mother in relation to the Rice v Asplund (supra) argument, then her position was that the existing orders in relation to [X]’s time with the step-father should remain in full force and effect.
The mother’s Counsel further submitted that in the event the court was against the mother in relation to her submission that there be no increase in the time [X] spends with the step-father, then the mother would be seeking orders that [X] spend time with the step-father during school terms in a four week cycle, in week one from after school Thursday to before school Tuesday and in week three from
6.00 pm Sunday to before school Tuesday.
The mother also proposed that the 2009 orders be amended in relation to telephone communication, the step-father’s involvement in [X]’s schooling and extra-curricular activities and overseas travel. The mother’s proposals in this regard will be set out in detail in the body of this judgment.
Background
The step-father was born [in] 1964 in Zimbabwe. He is 47 years of age. He immigrated to Australia in 1989 and became an Australian Citizen in 1992. He is a [occupation omitted]. He works seven days on/seven days off, from Wednesday to Wednesday [location omitted].
The step-father is homosexual and is HIV positive. The step-father has re-partnered and has lived with his partner Mr H since January 2007. Mr H has an 11 year old daughter [Y] born [in] 1999 (“[Y]”) who spends regular time with her father, the step-father and [X].
The mother was born [in] 1960 in Zimbabwe. She is 51 years of age. She and [X] came to Australia two days prior to her marriage to the step-father in November 2003. Both she and [X] became Australian Citizens in 2008. The mother is engaged in full-time employment as a [omitted]. She has not re-partnered.
[X] was born in South Africa [in] 1999. The mother adopted him when he was five weeks old and was granted a certificate of adoption on
3 February 2000.
The parties were childhood friends as their families were very close. They maintained their friendship after the step-father immigrated to Australia. After a number of discussions, the parties agreed that they would marry and the mother and [X] would immigrate to Australia.
When the decision to marry was made, the mother was aware of the step-father’s sexuality and HIV status. Whilst they agreed theirs would not be a sexual relationship, it was their intention that in all other respects, theirs would be a long-term married relationship.
Upon arrival in Australia, the mother and [X] moved into the
step-father’s unit in [C]. The mother obtained full-time employment and [X] was enrolled in day care. In 2005, [X] commenced his schooling at [S] Primary School.
It is the step-father’s evidence that he was actively involved in [X]’s care and that he and [X] quickly developed a close and loving father/son relationship which continues to this day.
The step-father deposes that he and the mother jointly made the parenting decisions in relation to [X], including where [X] went to day care and which school he attended. It is his evidence that he volunteered to adopt [X] but the mother declined this offer, reassuring him that regardless of any official adoption, he would always be [X]’s father.
The mother refutes the step-father’s level of involvement in [X]’s life during their marriage. Whilst acknowledging a level of involvement by the step-father, it is the mother’s evidence that he continued his
pre-marriage lifestyle of travel and social activities that excluded she and [X], and that, combined with his week on/week off work commitments, meant she was the person who predominantly was responsible for parenting [X].
The parties’ relationship broke down and they separated in November 2006.
After separation, the mother purchased the unit opposite the step-father. It is their evidence that for the first 12 months after separation, the parties were able to amicably make arrangements between themselves in relation to [X], who spent on average three nights each fortnight with the step-father.
It is the step-father’s evidence that towards late 2007, the mother’s attitude to his involvement in [X]’s life dramatically altered. He describes her as becoming “dictatorial”, limiting his time with [X], arranging extra-curricular activities that interfered with his time with [X], directed [X]’s school that all parenting decisions were to be made by her and they were no longer to communicate with him, and limiting his capacity to be involved in [X]’s extra-curricular activities.
The parties attempted mediation on a number of occasions in an attempt to resolve [X]’s living arrangements but were unable to do so.
The mother refutes the step-father’s claims that she became “dictatorial” in relation to [X]’s living arrangements. It was her evidence that the father would not commit to a regular regime of time with [X], but rather sought time that fitted around his work commitments, holidays and social activities and would become very critical if she refused his requests for time because she and/or [X] had other commitments.
The parties’ relationship has deteriorated such that each of the parties concede they have real difficulty in being able to communicate with each other in relation to [X].
Despite the 2009 orders, the parties continue to have difficulty in putting in place arrangements for [X]’s time with the step-father.
The step-father is of the view that the mother underplays and undermines his relationship with [X]. He believes the mother deliberately frustrates arrangements he makes for activities with [X], such as skiing trips and visits with his family by scheduling
extra-curricular activities that prevent or interfere with the arrangements made.
The mother is strongly of the view that she, and she alone, is [X]’s parent and therefore the person who makes the decisions in relation to [X].
Whilst acknowledging [X] has a close relationship with the
step-father, the mother is adamant that he is not [X]’s father and therefore should not have that role in [X]’s life. She views the
step-father’s role in [X]’s life as that of a “benevolent uncle” to a loved nephew.
It is the mother’s evidence that the step-father is extremely frustrating to deal with. It is her evidence that he makes constant demands, such as insisting she provide a list of the items [X] brings with him when spending time, regularly fails to return needed items such as uniforms/sporting equipment and is constantly changing his proposed arrangements.
The mother observes the step-father to always assume that any problem or difficulty he encounters in the arrangements for [X], or in his interactions with those involved in [X]’s schooling or sporting pursuits, are as a result of deliberate actions by her, rather than accepting that accidents do happen or that she has acted appropriately.
The Evidence
The step-father
In the Outline of Case document filed on behalf of the step-father on
21 April 2011, paragraph 1 sets out the orders that the step-father is seeking the court make in this matter. They are in the following terms:
1.That all previous Orders with respect to the child [X] born [in] 1999 (“[X]”) be discharged;
2.That the Respondent Wife have sole parental responsibility for [X];
3.That [X] live with the Respondent Wife;
4.That [X] spend time with the Applicant Husband as follows:
a.Each alternate weekend from the conclusion of school Friday to the commencement of school Tuesday;
b. In school holiday periods as follows:
i. For five (5) consecutive nights in the mid year school holiday period as agreed between the parties and in default of agreement commencing on the first full day the Husband is not at work after the last day of the school term in which [X] is enrolled; and
ii. From the conclusion of school on the last day of the school term to the commencement of school on the first day of the fourth term in the third term school holiday period.
c. From 10.00am until 6.00pm on Father’s Day;
d.On [X]’s birthday as agreed between the parties and in default of agreement as follows:
i. Should [X]’s birthday fall on a school day from the conclusion of school until 6.30pm; and
ii. If [X]’s birthday falls on a non contact weekend from 6.00pm on the night preceding [X]’s birthday until 1.00pm on [X]’s birthday.
e.During the long summer school vacation period as follows:
i. From 10.00am Christmas Eve until 10.00am Christmas Day in 2011 and each alternate year thereafter;
ii. For the second half of the long summer vacation in 2011/2012 and each alternate year thereafter, with such time to commence three (3) days prior to the midway point in the school holiday period and conclude three (3) days prior to the first day of term.
iii. For the first half of the long holiday period in 2012/2013 and each alternate year thereafter; and
iv. Such further and other times as may be agreed between the parties.
5.That [X]'s time with the Applicant Husband pursuant to paragraph 4(a) herein be extended to five (5) consecutive nights per fortnight commencing at the conclusion of school on Thursday to the commencement of school on Tuesday once [X] commences secondary school.
6. That the Husband's time with [X] be suspended as follows:
a.From 10:00am on Christmas Day until 10:00am on Boxing Day;
b.For the first half of the long summer vacation in 2011/2012 and each alternate year thereafter;
c.For the second half of the long summer vacation in 2012/2013 and each alternate year thereafter;
d.For the first Term school holiday period;
e.From 10:00am to 6:00pm on Mother's Day; and
f.At such further and other times as agreed between the parties.
7.That for the purpose of [X]'s time with the Husband pursuant to these Orders and in the event that [X] is not at school on the day he either commences time with or concludes time with the Husband, that such time commence at 9:00am and conclude at 6:00pm.
8.That in the event that the Applicant Husband travels with [X] overseas, the Respondent Wife provide to the Husband within fourteen (14) of a request being made by the Husband, [X]'s passport.
9.That the Respondent Wife provide to the Applicant Husband, a certified copy of [X]'s birth certificate.
10.That the Applicant Husband provide to [X] a prepaid mobile telephone at his expense to facilitate communication with [X] via telephone.
11.That the Applicant Husband and [X] be at liberty to contact one another utilising their mobile telephones at times when [X] is not spending time with the Applicant Husband in accordance with [X]'s wishes and no less than:
a.During school terms on Monday and Thursday on the week the Applicant Husband does not spend time with [X] between 7.00pm and 8.00pm with the Applicant Husband to initiate the call to [X]'s mobile telephone;
b.By telephone each Monday between 7.00pm and 8.00pm within school holiday periods when [X] does not otherwise spend time with the Applicant Husband with the Applicant Husband to initiate the call to [X]'s mobile telephone; and
c.At such further and other times as agreed between the parties.
12.That for the purpose of communication between [X] and the Applicant Husband pursuant to paragraph 6 herein, the Respondent Wife ensure that [X]'s mobile telephone is charged and turned on to receive telephone calls.
13.That the Respondent Wife facilitate email communication between [X] and the Applicant Husband and not frustrate any attempts that either [X] or the Applicant Husband may make to communicate via email correspondence;
14.That the Applicant Husband be referred to as [X]’s “stepfather” on all school and extra curricular activity enrolment forms including but not limited to before and after school care enrolment forms and further be listed as the first emergency or alternate contact on such forms after the Respondent Wife;
15. That the Applicant Husband be authorised to:
a.Attain copies of all school reports, school notices and newsletters sent generally to the school community, directly from [X]’s school and from the providers of any extra curricular activities;
b.Attend school events such as concerts, plays, sports days and school fetes and as a canteen volunteer;
c.Attend parent/teacher interviews or appointments with respect to [X]’s pastoral care and academic progress; and
d.Be included as [X]’s stepfather on any school or extra curricular activity phone list, and have a copy of those phone lists.
16.That the Applicant Husband be at liberty to attend excursions where parents are invited to participate;
17.That the Respondent Wife be at liberty to telephone [X] twice per week during school holiday periods when [X] is spending time with the Applicant Husband;
18.That neither party denigrate the other or members of that person’s extended family in the presence or hearing of [X] or discuss the conduct of these proceedings with him or in his hearing or allow anyone else to do so.
19.That in the event that either party intends to take [X] interstate or overseas they provide the other party with at least four (4) weeks written prior notice of their intention to do so.
20.Such further and other Orders as deemed appropriate by this Honourable Court.
Somewhat confusedly, Counsel for the step-father, when making closing submissions, gave indications that the step-father was now seeking that certain of the 2009 orders be amended as part of any orders made by this court. As my understanding of the step-father’s proposal was that there were to be completely new orders made in relation to the arrangements for [X], this submission on its face made little sense.
However, as a matter of completeness, the amendments to the August 2009 orders proposed by the step-father are as follows:
Amend paragraph 12:
1. To give effect to paragraph 11;
a.the Respondent wife shall provide to the Applicant husband, by email, notice as soon as practicable (but no later than 48 hours) after the wife receives notice of the scheduling of any extra curricular activity or invitation to any social function which will fall, or is likely to fall, during any period that [X] is scheduled to spend with the Applicant husband, including details of the location and timing of the activity or function.
b.In respect of any social function falling during the Respondent Husband’s time with [X]’s attendance be at the discretion of the Applicant.
Amend paragraph 6: Definition of in a “timely manner”
Timely manner shall mean as soon as practicable but no later than 48 hours of receipt by the wife of reports or order forms or the enrolment in or scheduling or re-scheduling of any extra curricular activity.
It is the step-father’s evidence that he and [X] have a close and loving relationship and that he considers himself to be [X]’s dad and that [X] considers him to be his dad as well.
It is the step-father’s evidence that one of the primary factors in his decision to marry the mother was so that they could form a family unit, consisting of the two “parents” and [X] as their child.
It is the step-father’s evidence that the mother initially supported him having this role in [X]’s life, assuring him that he would always be [X]’s father, even in the event that they were to separate.
It is the step-father’s evidence that whilst he and the mother were married, they were jointly involved in parenting [X], including making decisions about where he went to childcare, where he went to primary school as well as what extra-curricular activities he would undertake. It was his evidence that he believed them to have similar views in relation to the parenting of [X], and that they were able to work cooperatively as [X]’s parents.
It was the step-father’s evidence that he was noted as [X]’s father on the initial enrolment forms at [X]’s daycare and at his school and that, in the eyes of the community, he was [X]’s father.
It was the step-father’s evidence that in the 12 months immediately following his separation from the mother, they continued to be able to work cooperatively together in relation to the living arrangements for [X], particularly in the circumstances where after separation the mother purchased and moved into the unit that was directly opposite his.
In January 2007, the step-father commenced a relationship with his now partner Mr H, who moved in with the step-father. It is the step-father’s evidence that his relationship with the mother started to deteriorate in the latter part of 2007, when the mother emailed him to advise that she wanted nothing to do with his extended family.
It is noted that it is the step-father’s evidence that since [X] came into his life, he has formed a close relationship with the step-father’s parents and sister, such that he calls them his grandparents and his aunt and calls the step-father’s nephews and nieces his cousins.
It is the step-father’s evidence that at the beginning of 2009, the mother unilaterally instructed [X]’s then school, [S] Primary School, that he was to be removed as [X]’s “parent” on all forms in relation to [X] and that any communication in relation to [X]’s education was to take place with her only.
It was the step-father’s evidence that prior to that time, he had been actively involved in [X]’s school, including volunteering at the school canteen such that his employer, [omitted], had donated $1,000.00 to the school under their scheme to make contributions to any entity that any of their employees volunteered with for more than 20 hours each year.
It was because of the difficulties that the parties were having in being able to reach agreement in relation to [X]’s living arrangements, that the step-father first initiated proceedings in the Family Court in September 2008.
As noted previously in this judgment, final consent orders were made by Justice Dessau in relation to [X]’s living arrangements on
6 August 2009.
It is the step-father’s evidence that despite the quite detailed orders made, he and the mother almost immediately experienced difficulties in their interpretation and application of those orders.
It is the step-father’s evidence that the parties’ interpretation of order 11 of the orders of 6 August 2009 has been most problematic. It was his evidence that the mother organised extra-curricular activities or insisted upon compliance with order 11 so that [X] was required to attend his extra-curricular activities to interfere with the step-father’s arrangements for holidays or other special events during [X]’s time with him.
It was the step-father’s evidence that as a result of these ongoing difficulties, he contacted the mother with a request they attend mediation in an endeavour to try and resolve their differences but that she refused to attend.
In paragraph 66 of his affidavit sworn and filed 4 April 2011, the step-father summarised his concerns in relation to the 2009 orders as follows:
a)[X] has expressed clear wishes for some time that he wants to spend more time with the step-father than the orders currently provide, and that the mother refuses to facilitate this;
b)the orders do not provide for an understandable routine, such that [X] is unable to understand the arrangements and gets frustrated as he does not know when he is going to see the step-father;
c)school holidays have been problematic as the orders don’t make provision for specific changeover and collection time, and this has been abused by the mother;
d)the mother does not allow the step-father to take [X] out of Victoria or the Commonwealth of Australia, even though there is no restraint in the 2009 orders preventing him from doing so;
e)the use of paragraph 11 of the orders by the mother to manipulate and frustrate the step-father’s time with [X];
f)an inability to make prior arrangements for holidays because of the possibility of there being extra-curricular activities that [X] must attend during those holidays;
g)the mother using paragraph 11 of the final orders to suspend [X]’s time if he is invited to a school or work related function, even when the step-father is more than happy to facilitate [X]’s attendance at those events;
h)difficulties with telephone communication, in that [X] is not allowed to telephone his step-father or any of the step-father’s extended family; and
i)the mother does not allow [X] access to electronic communication with the step-father such as Skype or email.
It was the step-father’s evidence that some months after the August 2009 orders were made, [X] started asking to spend more time with him than those orders made provision for. It is the step-father’s evidence that [X] continues to express strong wishes to spend more time with him to this day.
The step-father also expressed concerns in relation to the mother’s attitude to [X] having a meaningful and ongoing relationship with him.
The step-father provided evidence that in July 2010 he forwarded an email to the mother, in which he indicated that he had not received a form to obtain a copy of [X]’s soccer photos pursuant to paragraph 8A of the August 2009 orders. The mother responded to this email in the following terms:
“Of course not, they were given to the player’s families!! Hangers on have to wait.”
In response to an email received from the step-father’s solicitors in relation to issues that came up about the arrangements for a ski trip, the mother concluded her response by stating:
“Kindly remind your client that he is not [X]’s father and spends time with [X] pursuant to consent orders, not pursuant to a decision by the court that he be entitled to do so.”
It was the step-father’s evidence that in mid-June 2010, [X] had a “grandparents and special persons day” at his school. It was his evidence that the mother refused to extend an invitation to either himself or his parents, despite their close loving bond with [X] and despite [X] requesting the step-father and step-father’s parents’ attendance.
It was the step-father’s evidence that on 3 September 2010, [X] had a scheduled Father’s Day breakfast at his school. The step-father sent an email to the mother in the following terms:
“Hi [Ms Jeffreys].
The Fathers Day breakfast is on at [omitted] on the 3rd of September and I’d like to go with [X]. Have you received any flyers from the school on this? If so, please could I have a copy?
Please let me know whether you can drop [X] off at my place early in the morning or whether I should pick him up at 8.45 on the 3rd.”
The mother’s response to this email was as follows:
“Hi [Mr Beasley]
Sorry, been busy and out of office.
I will be attending this with [X].
He will be ready for pick up at 15h30 on Friday 3 September.”
It is the step-father’s evidence that in September 2010, he and Mr H made the decision to move to [suburb omitted] away from the [C] apartment, in part as a result of the difficulties for [X] in being exposed to the mother’s barely concealed antipathy towards them.
It is the step-father’s evidence that he and his partner Mr H would like the opportunity to be able to travel overseas with [X]. From a very early age, the step-father has taken [X] on an annual skiing holiday and it is the step-father’s evidence that he would like to be able to take [X] skiing to New Zealand in the September school term holidays. His proposal that he have the whole of the September holidays is to enable he, Mr H and [X] to be able to take a skiing trip to New Zealand.
Further, the step-father indicated that he and Mr H have contemplated travelling to countries in which same-sex couples are able to legally marry, such as South Africa, Thailand and certain states of America. If they were to make such a decision, it was the step-father’s evidence that they would want to be able to take [X] with them so that he could be part of any ceremony that they undertook, together with Mr H’s daughter [Y].
Mr H is from Croatia, and the step-father also indicated that at some stage he and Mr H would like to be able to take both their children to Mr H’s home country.
In relation to the mother’s expressed concerns about the step-father’s HIV positive status and potential health impacts in the event the
step-father was overseas, it was the step-father’s evidence that his condition is well managed and that his partner Mr H is in fact a fully trained [medical professional] and more than capable of his care.
Mr H
Mr H filed an affidavit on behalf of the step-father on 18 April 2011. Mr H was not required by the mother or the Independent Children’s Lawyer for cross-examination.
In his affidavit, Mr H confirmed that he and [X] have an excellent relationship, which has strengthened over the years.
Mr H has a daughter [Y] born [in] 1999. It was Mr H’s evidence that [X] and [Y] have a close relationship and they consider each other to be step-siblings. He deposes he and his former wife have a very amicable relationship and they are able to arrange [Y]’s time with him so that it coincides with the time [X] is with his step-father.
Mr H raised with concern however the overt dislike he believes the mother in these proceedings has for [Y]. He deposed that this is evidenced by the mother’s refusal to speak to [Y], her refusal to allow [X] to attend any functions that involve [Y], including her birthday, and her refusal to invite [Y] to any functions that involve [X], such as his birthday party and the like.
The mother
As noted previously in this judgment, it is the mother’s submission that this is a matter to which the rule in Rice v Asplund (supra) applies, and that as there has not been a significant change in circumstances since the making of the orders in August 2009, the step-father’s Application should be dismissed.
In the event that the court does not rule in her favour in respect to the Rice v Asplund (supra) argument, it is the mother’s position that the current orders for the time that [X] spends with the step-father are fair and that there should be no increase in his time with the step-father.
In the event the court determines that the 6 August 2009 orders should be revisited and [X]’s time with the step-father increased, Counsel for the mother handed to the court a Minute of Orders that she proposed should be made in that circumstance in the following terms:
School events
1.That at the conclusion of paragraph 8(b) of the orders of
6 August 2009 (“the orders”) the following be inserted:
For the purpose of clarification, father’s and special person’s day are school events to be regarded as a school event for the purpose of this paragraph and the husband shall always inform the wife of his intention to attend father’s and special person’s day events.
Change of time
2.That paragraph 9(a) and 9(b) of the orders be amended to read as follows:
(a)During school terms in the first week of a four week cycle from after school on Thursday to before school the following Tuesday[1]
[1] Existing order is for after school on a Friday to before school on Monday.
(b)During school terms in the third week of a four week cycle from 6.00 pm on Sunday to before school on the following Tuesday[2]
[2] The existing arrangement.
Telephone
3.That paragraph 9(g) and (h) be discharged and replaced with the following:
(g)During school terms by telephone each Monday of the weeks that the husband does not spend time with [X], with the applicant husband to initiate the call and the respondent wife to facilitate the call and the call not to exceed 20 minutes;
(h)During term and long summer holidays and during any week that [X] spends holiday time with the respondent wife and does not spend time with the husband, by telephone for up to 20 minutes once per week on Monday between 7.00 pm and 8.00 pm with the applicant husband to initiate the call and the respondent wife to facilitate the call.
Husband taking [X] to extra curricular activities
4.That paragraph 11 of the orders be renumbered paragraph 11(a) and be followed by the following: (b) Notwithstanding the provisions of 11(a), the applicant husband is not required to take [X] to any extra curricula (sic) or social function during the applicant husband’s part of any school term holiday, save that he is required to take [X] to any of [X]’s usual sporting events if such event occurs during school holidays (for example, soccer may occur during school holidays).
Overseas holidays to New Zealand-other places not automatic
5.That paragraph 15 of the orders become paragraph 15(a) after which the following be inserted:
(b)And for travel during the husband’s school time pursuant to these orders, including the paragraph 9(e) skiing trip, in the event the husband takes [X] to New Zealand, the wife provide to the husband [X]’s Passport and the husband return same at the end of any trip provided 8 weeks notice in writing is provided;
(c)That when providing eight weeks prior notice to the wife with respect to any travel interstate, to New Zealand or otherwise overseas, the husband provide to the wife an itinerary including any flight details, accommodation and contact details and;
(d)On occasions that [X] travels overseas with the husband (including to New Zealand), the husband cause [X] to telephone the wife to confirm safe arrival at any planned destination.
(e)That on any overseas trip of [X] and the husband, the husband cause [X] to telephone the wife every third day.
It was the mother’s evidence that she has been [X]’s primary carer since his adoption at the age of five weeks.
She disputes the step-father’s claims as to his level of involvement in [X]’s life whilst they were married. It is her evidence that the
step-father continued his pre-marriage lifestyle after their marriage and that his travel, social activities and work commitments meant that he was not a daily presence in [X]’s life.
It was the mother’s evidence that after separation, the parties were able to initially put in place arrangements for [X] to spend regular time with the step-father.
It was the mother’s evidence however that the step-father refused to commit to a regular arrangement, and that he insisted upon [X]’s time with him coinciding with him being free from other commitments such as work, travel and social activities.
It was the mother’s evidence that when she was unable to fit in with the step-father’s convenience, he would become angry and critical of her.
Whilst conceding that [X] perceives the step-father as his father, albeit such concession was made with a great deal of reluctance, it is the mother’s evidence that she is the person who is [X]’s actual parent, both legally and in the context of bearing that responsibility.
The mother placed before the court a series of email exchanges between herself and the step-father which she said was indicative of the communication between them and of the step-father’s attitude to her. They are set out as follows:
From mother to stepfather on 10 May 2011 at 8.16am
Hi [Mr Beasley]
I hope you are well.
[X] reminded me that I have not sorted out his attendance and payment in the Winter Sport Cometition (sic), where they play tee ball.
They will attend on Thurs 12 May, Thurs 19 May, Thurs 26 May, Thurs 9 June and Thurs 23 June, at [location omitted] between 13h00 and 15h15, and travel by bus. If you would like to attend on any of these dates, please let me know and I will let the school know accordingly. I do ask that you let me know, even if it is short notice, and I will follow up.
Some time ago you sent me your work roster, but it is not working, as when I press “Change calendar settings” it says it cannot run the macro as the macro may have been disabled. Could you send it in a format with the macro enabled, or in a format I can use?
Have a fabbo dabbo day.
[Ms Jeffreys].
From step-father to mother on 10 May 2011 at 10.10pm
[Ms Jeffreys]
I have already let [name omitted] know that I will attend all of the sessions held while I am at home and able. Please don’t withhold [X] from school or organise any “appointments” for him on any of these days like you did last year. If he is genuinely sick from school on any of those days, please let me know as soon as you know.
My calendar is attached. Macros are enabled. You may have to enable Macros on your PC to be able to edit them.
I have leave in the September school holidays 2011 and the January school holidays 2012. These dates are in the calendar.
[Mr Beasley]
From mother to stepfather on 13 May 2011 at 3.29pm
Hi [Mr Beasley]
I hope you are well.
I think I have sorted out the roster.
Please let me know when you are attending the tee ball excusion (sic), even if it is only the day before.
[X] has a footy match this Sunday. The venue is [omitted]. He needs to be there by 10h45.
He brings with him: footy bag, boots, gum guard, asthma, hoodie, Fitzroy top, shorts and socks. He also has his school bag, lunch bag – and watch.
Please let me know if you would like to attend the excursion to the Immigration Museum on [date omitted]. It is a morning excursion, departing from the school. I ask that you let me know if you want to attend I will let the school know.
I am in the process of changing service providers for my mobile phone, while it is most unlikely, there is a chance I may not have a mobile connection for a time over the weekend, so if you or [X] need to get hold of me please try both mobile and home phones.
Have a fabbo dabbo day
[Ms Jeffreys]
From step-father to mother on 19 May 2011 at 10.11am
Just received this.
I thought I was clear in my previous email, but let’s try again. I can make all of the T-Ball sessions that I am home except for the 9th June. You know full well that we will be at court on that day, and the fact that you still invite me to go with [X] is offensive.
I have let the school know. If [X] is not at school on ANY of those days, please let me know well in advance. Last year you withheld him knowing full well I was going to be there.
[Mr Beasley]
From mother to stepfather on 20 May 2011 at 3.23pm
Hi
I hope you are well.
If you read your email, you do not specify when you will attend the tee-ball sessions, which is what I wanted to know. It is unfortunate that you are offended by me providing you with a 100% accurate chronology of the dates [X]’s class will attend tee-ball.
Have a fabbo dabbo day
[Ms Jeffreys]
From mother to stepfather on 24 May 2011 at 9.30am
Hi [Mr Beasley]
Hope you are well.
Sent an email on Friday 13 May at 15h29 detailing what [X] was bringing with him. You did not reutrn (sic) the gum guard. It is really important that he has this so please return it to us asap. You can drop it in our mailbox.
Have a fabbo dabbo day!
[Ms Jeffreys]
From step-father to mother on 24 May 2011 at 9.41am
[Ms Jeffreys]
Please let me know who I should contact at the Footy club to organise a second set of footy gear for [X].
[Mr Beasley]
It is the mother’s evidence that she finds trying to make arrangements with the step-father incredibly frustrating. It was her evidence that he changes his mind, places unrealistic demands on her like that she provide an inventory of [X]’s belongings whenever he visits, forgets or omits to return important items that [X] needs when he returns to her care and misunderstands or misrepresents her position to others involved in [X]’s activities.
By way of example, the mother gave evidence that an issue arose between herself and the step-father in relation to obtaining a second football jumper for [X] in June of this year. The chain of emails in relation to this issue was provided to the court and are reproduced below:
From the step-father to Ms S on 1 June 2011 at 1.11pm
Hi [Mr P], [Mr W] and [Ms S]
Thanks for your time on the phone yesterday regarding [X]’s footy gear. I am sorry to have to involve you guys, but I really need some help here.
[Mr W], [X] knows that you will bring a jumper for him to try on at practice on Friday. If it fits, please hang onto it for me until I can collect it and pay for it. I’ve asked him just to try it on and give it back. He will be with [Ms Jeffreys] until next week and if he takes it back to her place I will never see it again. Please let me know via email whether it fits and I will make arrangements to get it from you. [Ms S] did kindly say it was okay to have 2 numbers, but I will have the number changed to [X]’s as I’d like this to have as little impact on the club as possible.
I have no doubt that [Ms Jeffreys] will become demanding (and possibly even threatening) towards the Club over this issue. Please be firm and let her know that you are entitled to deal with each of us separately. If she makes any threats, I suggest you ask her for a copy of the Children’s Orders issued by the Family Court of Australia supporting any claims and things should calm down.
I usually just let [Ms Jeffreys] get her own way in these things, but this time it is affecting [X] and I need to act. I need to be sure that [X] has the things he needs for his sports and school and have had to duplicate everything to ensure this is the case.
Thanks again.
[Mr Beasley]
From Ms S to the step-father on 1 June 2011 at 1.23pm
[Mr Beasley],
No problem from me. As I said on the phone, you will need to get an older style jumper with the numbers that are stitched on. You can get them replaced at any tailoring place (usually). You do not need to pay for it as it will just go back into circulation, or I will take it out of the mix with some of the older ones as I do each year.
[Ms Jeffreys] has not been unpleasant about the issue, just asking for a second jumper. I will take on board your comments.
From the step-father to Ms S on 1 June 2011 at 8.08pm
Thanks [Ms S].
I received an email from [Ms Jeffreys] earlier in which she claims to be the Club Representative charged with organizing Club jumpers. I seriously doubt this is the case based on yesterday’s conversations (and past claims [Ms Jeffreys] has made regarding dealings with [X]’s sporting clubs), but if this is the case I would rather continue dealing directly with you guys if that is okay.
Regards
[Mr Beasley]
From Ms S to the step-father on 2 June 2011 at 9.16am
[Mr Beasley],
I am the committee member who is responsible for club jumpers. [Ms Jeffreys] is not a member of the committee.
Regards,
[Ms S]
The mother argued this was illustrative of how the step-father assumes she has undermined him to others and misrepresents her to others.
The step-father gave evidence of a difficulty that arose in relation to bicycles that were used by he and [X] that were stored at the mother’s unit. It was the step-father’s evidence that he and [X] had gone to use the bicycles and had been unable to unlock them as the mother had changed the locks on the bicycles and not told him.
In contrast, it was the mother’s evidence that the lock on the bicycle used by the adults had broken, and that she had bought a new one. [X] liked the new lock and therefore, at his request, they had swapped them over and she had taught him the new combination. It was her evidence that when the step-father went to use the bicycles, [X] had forgotten the new combination.
It was the mother’s evidence that it is the step-father’s usual response to infer something malicious or underhand by her when incidences of this type occur.
It was apparent from the mother’s responses to questions put to her in cross-examination that she resists strenuously the concept that the
step-father has the role of “father” in [X]’s life. When it was put to her the step-father had volunteered at [X]’s school “like parents do”, her response was:
“as people involved with the child do.”
When questioned what she understood to be the purpose of the order in the August 2009 orders that provides that the step-father be referred to as [X]’s step-father on all school and extra-curricular activity forms, and that he be listed as the first emergency or alternate contact after the mother, it was the mother’s evidence that it means that this is something that she is required to do. She further gave evidence that if there isn’t a space to put in a name for first emergency contact or
step-parent then she does not put the step-father’s name down.
When challenged as to why she had not invited the step-father to attend [X]’s Father’s Day breakfast or grandparents and special persons day, it was the mother’s response that he could have attended if he so wished, despite email responses previously set out in this judgment.
It was the mother’s evidence that because of the difficulties she has encountered with the step-father in relation to extra-curricular activities, she attempts to ensure that any social or other engagements to which [X] is invited, occur during the time that he is living with her.
It was the mother’s evidence that she believes that the current orders for [X]’s living arrangements are fair and reasonable, and accurately reflect the time that the step-father spent with [X] during the marriage.
When challenged in relation to the very strong views that [X] expressed to the Family Report Writer, Ms S, in wanting to spend more time with the step-father, it was the mother’s evidence that [X] is too young to make the decision as to the amount of time he should spend with his step-father and that she was of the opinion that [X] would not be negatively impacted if the current regime were to continue.
In relation to the issue of travel, it was the mother’s evidence that she would prefer that there be orders that the step-father not be permitted to take [X] interstate or on any international holidays.
It was the mother’s evidence that both the step-father and his partner are HIV positive and she is greatly concerned as to the potential impact on [X] in the event one or either of them had a health crisis whilst travelling with [X].
The mother also gave evidence that there had been two occasions on skiing trips in Victoria where [X] had required emergency treatment and that she had not been advised of this until the evening of those incidents.
The mother expressed concerns that when travelling with [X], he had only been permitted to ring her once to confirm his safe arrival and that when she had sought a proper itinerary for the holiday including the dates they were going to be away, accommodation details etc, she had not been provided with that information.
In relation to the arrangements for the time that [X] spends with the step-father, it is the mother’s evidence that because she works
full-time, the time that she is able to spend with [X] on weekends is particularly precious to her. For this reason, she is very much opposed to any arrangement that would see [X] spending alternate weekends with his step-father as this would dramatically eat into her and [X]’s leisure time together.
She is also concerned that if [X] was to spend each alternate weekend with his step-father, the ongoing disputes between them about attendance at extra-curricular activities would be even more exacerbated as the step-father would be required to ensure [X]’s attendance at such activities every second weekend as opposed to every fourth weekend which is the current arrangement.
Ms S
Ms S is a psychologist who prepared a Family Report in this matter dated 24 February 2011, which was placed before the court by way of her affidavit sworn 1 March 2011. Ms S also gave viva voce evidence of the final hearing of this matter.
In her Family Report, at paragraphs 5 and 6, Ms S neatly summarises the issues between the parties as follows:
5.The main issue in dispute is the role of Mr Beasley in [X]’s life. Ms Jeffreys is adamant that she is [X]’s only parent and although she acknowledges that Mr Beasley played a role in parenting while they were married, she insists that his involvement was minimal and that she was the primary parent but also retained all the responsibility for [X]’s care and development. She asserts that there “wasn’t a family unit” as she “didn’t even think about it” and that she did not have any expectations and that she “re-established a whole new social network” for her and [X]. Mr Beasley has a different view asserting that there was an agreement that he should assume the fathering of [X], a role which he embraced wholeheartedly and actively. He considers himself a father to [X] but more importantly, notes that [X] considers him to be his father and he is loathe to relinquish his responsibility as a parent and commitment to [X].
6.Ms Jeffreys does not oppose Mr Beasley spending time with [X] but strongly objects to him assuming the role of father and as such, any more time with [X] is not appropriate and unreasonable. She opposes any attempt by Mr Beasley to have a say in [X]’s life or development. She proposes that the current routine of time with [X] continues without change or increase…
In relation to the step-father, Ms S describes him in paragraph 8 of her Report in the following terms:
“He presents as a congenial man, seems frank and open and was straightforward in interview.”
In paragraph 10 of her Report, Ms S notes the step-father to be aware of the pressure that [X] is under to please his mother and to being mindful of the effect that the parties’ ongoing conflict will have on [X]. Ms S notes that the step-father wishes to have significant and substantial time with [X] and that he wants his parental relationship with [X] to be supported and promoted by the mother so that [X] is relieved from the pressure and stress of the conflicted adult relationship.
In relation to the mother, Ms S notes in paragraph 12 of her Report the following:
“The central issue for Ms Jeffreys is that she is the sole parent to [X] having adopted him as a single parent and having been found to be a suitable parent for him.”
In paragraph 13 of her Report, Ms S notes that the mother rejects the step-father’s contention that he has a significant role in [X]’s life and that she resents him trying to usurp her role now. Ms S then states as follows:
“She does not accept that Mr Beasley is a parent or a father figure to [X] but perceives and describes him as “a benevolent uncle”. She says that Mr Beasley “has not understood I’m his mother” and that “he is overstepping the boundaries and his role” in believing that he is entitled to the same time as a parent when he is not. She believes that his time with [X] and his role should be considered as similar to that of grandparent and that Mr Beasley has “delusions that he is a parent”. She considers the current regime of time with [X] as sufficient and a “realistic reflection of the time they spent together” when they were married.”
When discussing [X], Ms S, in paragraph 17 of her Report, describes him as follows:
“He presents as an engaging and endearing boy, with a pleasant and bright demeanour, happy and lively. He seems confident, bright and self assured. He spoke directly and confidently with the writer, was spontaneous and natural in interview and seemed at ease about expressing his views and wishes.”
Ms S confirmed that [X] loves his mother and has a good relationship with her. She reports him speaking positively about that relationship and of the many activities they share together. She observes that there appears to be a close bond between them.
In relation to the step-father, Ms S stated that not only is he a father-figure for [X], but [X] also considers him to be his father.
In paragraph 19 of her Report, Ms S discusses [X]’s relationship with his step-father at length. In particular, she made the following observations:
“He (sic [X]) clearly loves Mr Beasley and enjoys spending time with him sharing activities, going to the movies, doing homework together and learning from him, such as how to “get on in the playground”… He notes that “I am a boy and I want to do things with dad” although he readily acknowledges doing enjoyable things with his mother as well. He feels safe and secure with
Mr Beasley and happy and settled with him. He has a good, close and warm relationship with Mr Beasley, describing him simply as “he’s just really good” and “I do really love him”.”
Ms S indicates that [X] is very much aware of the conflict between his mother and step-father. Ms S notes that [X] told her that he believes his mother really doesn’t want him to be with his step-father and notes that whilst she does not stop him from spending time with his step-father, she doesn’t really like it. [X] told Ms S that his mother had never volunteered that he could see more of his step-father if he wanted to and that she would be mad with him if he asked to spend more time with his step-father.
In paragraph 21 of her Report, Ms S confirms [X]’s strong wish to be able to spend more time with his step-father. She states the following:
“Despite his sense of apprehension when his mother is upset or angry, [X] is nonetheless firm and unwavering in his view to spend more time with his father. He is aware that his mother will not be happy with him for disclosing this wish but he feels that “she is thinking about herself” by denying him his wish to spend more time with his father.”
Under the heading “Evaluation” in her Report, at paragraph 27, Ms S makes the following observations:
“Irrespective of the title or description given to the relationship between Mr Beasley and [X], Mr Beasley is very important and significant to [X] and [X] has formed a close, warm and strong relationship with him. Although [X] does not always refer to
Mr Beasley as “dad”, he nonetheless considers him to be his father and very much a father figure… [X] wants to retain and develop this relationship and his wish is to spend more time with Mr Beasley and to have Mr Beasley as part of his life. The strength and closeness of the relationship suggests that
Mr Beasley has not only actively and significantly participated in [X]’s life, but that his contribution to [X] has been positive, meaningful and significant.”
In paragraph 29 of her Report, Ms S also includes a note of warning for the mother. Ms S says as follows:
29.There was a tone of defiance and rebellion in [X] in expressing his wishes. He is aware that his mother will be unhappy with his disclosure to spend more time with
Mr Beasley but he seemed unconcerned about her feelings. His tone of defiance is normal for a pre-adolescent boy who is beginning to assert his independence. However,
Ms Jeffreys needs to be mindful that this nascent expression of self assertion may develop into a more blatant rebellion as he moves to adolescence and greater independence. If
Ms Jeffreys is unable to support his relationship with
Mr Beasley which is clearly a father/son relationship, it is highly likely that [X] will rebel in the future and possibly assert his will over hers. There is also a risk to her relationship with [X] as he may perceive her as unreasonable, not responding to his needs and denying him a relationship which is central to his life.
Ms S then made the following recommendations in relation to the future living arrangements for [X]:
Recommendations
36.Given [X]’s wishes and his strong need and desire to spend time with Mr Beasley, it is recommended and that it is in [X]’s best interests that [X] spend time with Mr Beasley every second weekend from after school on Friday to the commencement of school on Tuesday, thus allowing for a minimum of four consecutive nights every fortnight. Five consecutive nights per fortnight can be considered when [X] commences secondary school as it is likely that [X] will want more time with Mr Beasley as he develops and grows.
[X] should be able to participate in all his extracurricular activities, including events such as birthdsy (sic) parties, when spending time with Mr Beasley. Maximum notice should be provided to Mr Beasley to ensure that [X]’s needs can be accommodated.
37.It is recommended that Mr Beasley be able to access the school for information about [X]’s progress as any other parent and to engage in any school activity in which [X] invites him, or as is organised by the school. While there should be flexibility between the parties in relation to attendance at these events, where no agreement can be reached, it is recommended that the party with whom [X] is living takes responsibility for the event. Similarly, with the alternate weekend arrangement or with holiday times, where no agreement for change can be reached, the decision of the party with whom [X] is staying should apply.
38.It is recommended that school holiday times be shared equally. Given Mr Beasley’s shift work timetable it is recommended that the Christmas holiday period be shared but that [X] is with his mother for at least three days prior to commencing school; that first term holidays be spent with Ms Jeffreys and third term with Mr Beasley; mid year holidays can be for five consecutive nights as is currently the arrangement.
Ms S was asked, when giving her viva voce evidence, whether an arrangement whereby [X] spent additional time with the step-father, but not each alternate weekend, would be an appropriate regime. It was Ms S’s evidence that as long as [X] felt he could see his step-father more regularly, he may accept such an arrangement and not be upset. She noted that the most important thing for [X] was that he spend more time with his step-father and as long as the arrangements did not preclude him from being able to undertake activities with him, that would meet his needs.
Ms S was asked what would be the impact if the mother was successful in her application that the existing arrangements remain in place. It was Ms S’s evidence that this would not immediately be the end of the world for [X], but that it could shift the dynamic between mother and son, such that it would achieve the very thing that the mother fears, that is, an undermining of the relationship between [X] and herself.
At the conclusion of her evidence, Ms S was asked whether she would alter the recommendations that were contained in her Report. She indicated that she would not alter those recommendations to any great degree, but emphasised the importance of there being more cooperation between the parties because of the negative impact that ongoing conflict between them would have on [X].
Rice v Asplund (1979) FLC 90-725
The mother is seeking that the step-father’s Application be dismissed on the basis of the “rule” in Rice v Asplund (supra).
As noted earlier in this judgment, I ruled that I would determine this threshold issue once the full hearing had been concluded. I will now do so.
Rice v Asplund (supra) was an appeal from custody orders that reversed orders made just nine months earlier. Evett CJ, with whom Powley SJ and Fogarty J agreed held:
“the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.”
Warnick J in SPS & PLS (2008) FLC 93-363 said at paragraph one:
1.The “rule” in In the Marriage of Rice and Asplund (1979) FLC 90-725 - (at least, in one of its shorter formulations) that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
In Marsden & Winch [2009] Fam CAFC 152, the Full Court of Bryant CJ, Finn and Cronin JJ considered the “rule” in Rice v Asplund (supra). Having cited paragraph one of the decision of Warnick J in SPS & PLS (supra), their Honours in paragraphs 44 to 47 summarised the findings of Warnick J as follows:
44.As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
45. Warnick J opined in SPS & PLS (supra) that:
58. Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
46. Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i)What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii)In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii)At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv)Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v)The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi)"Shorthand" statements of the rule may contribute to its misapplication.
(vii)Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
47. We agree with those observations…
Their Honours noted that given that there are so many changes in the lives of families, the changed circumstances that would allow
re-litigation must be circumscribed or there would be cases that would face endless litigation until a child attained the age of 18.
In paragraph 50 of Marsden & Winch (supra), their Honours held:
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
·The past circumstances, including the reasons for the decision and the evidence upon which it was based.
·Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
·If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
In this matter, it was argued on behalf of the mother that there had not been such a change in circumstances since the August 2009 orders to justify a re-hearing of the matter.
The mother argued that when the orders were made in August 2009, the parties’ difficulties in making arrangements for [X] were well documented. To this end, the mother noted that the first half of the step-father’s trial affidavit in these proceedings was a direct “cut and paste” of his trial affidavit filed for the August 2009 hearing.
Further, the mother argued that [X]’s wish to spend more time with the step-father was also before the court in August 2009 pursuant to a Children and Parents Issue Assessment prepared by Family Consultant Mr E on 18 December 2008 of part of the Family Court’s Less Adversarial Trial (LAT) process.
It was submitted on behalf of the step-father that there had been a sufficiently significant change in the circumstances since the August 2009 orders, such that it was in [X]’s best interests that the matter be re-litigated.
The step-father argued the strength of [X]’s views, his greater maturity as between 2008 and 2011, and the unworkability of the 2009 orders, which the mother herself acknowledged, warranted the matter being
re-heard.
The Independent Children’s Lawyer also argued that it was in [X]’s best interests for the matter to be revisited. It was the Independent Children’s Lawyer’s view that [X]’s very strong views, expressed to the Family Report Writer, Ms S, and to the Independent Children’s Lawyer, needed to be put before the court.
The Independent Children’s Lawyer also argued that a significantly new circumstance was her involvement in these current proceedings.
As noted by Warnick J in SPS & PLS (supra) in paragraph 42:
“…when the rule in Rice and Asplund is applied after a full hearing, its weight is likely to be less and correspondingly, factors that commonly point to what is in a child’s best interests (such as the wishes of thirteen and nine year old children) will likely deserve greater attention.”
In this matter, having heard the evidence in both the contravention proceedings and in the substantive matter, together with the submissions of the Independent Children’s Lawyer, I am more than satisfied that in light of the strength of [X]’s views and the parties’ inability to implement the August 2009 orders, it is in [X]’s best interests that this matter be re-litigated.
Accordingly, I reject the mother’s application that the step-father’s Application be dismissed pursuant to the rule in Rice v Asplund (supra).
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; 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 their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; 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).
Section 60ca of the Act provides that:
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.
When determining what is in the child’s best interests, the court must consider the matters set out under sections 60cc(2) and section 60cc(3) of the Act.
Many of the matters pursuant to subsections 60cc(2) and (3) of the Act are worded in such a way that they make reference to a child’s parents only.
The manner in which the court is to consider the specific provisions of sections 60cc(2) and (3) that make reference to parents only in parenting cases that involve parties who are not a parent of the child/children in question has been considered in a number of cases by the Full Court.
In the matter of Potts & Bims [2007] FamCA 394, Moore J was determining a dispute between the children’s parents and the maternal grandparents. Having considered the manner in which the court should deal with those matters under sections 60cc(2) and (3) which make specific reference to parents only, Her Honour concluded that those subsections that referred specifically to “parents” could not be specifically considered in the context of parties who were not the child’s parent. Her Honour concluded however, that if the matters under sections 60cc(2) and (3), which were excluded for consideration because they made reference to “parents”, were relevant to the best interests of the children, then those factors could be considered by reference to the catchall provision of section 60cc(3)(m). Her Honour was of the view that this enabled the court to consider all factors that are relevant to the best interests of the children in question, whether the parties to the proceedings were the children’s parents or not.
In Aldridge v Keaton (2009) 42 Fam LR 369, the Full Court quoted extensively from Moore J’s findings in Potts & Bims (supra) and said at [112] that Her Honour:
“accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involves a non-parent/s.”
The Full Court in Aldridge v Keaton (supra) has subsequently been cited on with approval in Donnell v Dovey (2010) 42 Fam LR 559 and Simpson v Brockman (2010) 43 Fam LR 32.
I am in complete agreement that this is the appropriate approach that a court should take when determining parenting issues between parties when one or other of the parties is not a parent of the child. Accordingly I will consider the provisions of section 60cc of the Act where applicable to this matter.
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
This section is not applicable to the parties in this case.
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Neither party make any allegations against the other’s capacity to properly care for [X], or that they would expose him to abuse, neglect or family violence.
The real issue in this matter however is the potential for the parties to expose [X] to psychological harm if their current level of conflict and dislike, one for the other, is not addressed.
Counsel for the Independent Children’s Lawyer advised the court that when the Independent Children’s Lawyer met with [X], he became visibly upset when discussing with her the conflict between the two adults in his life that he most loves, being his mother and step-father.
Ms S also commented on the impact of conflict on children and the long-term emotional damage that can be caused to such children if their exposure to that conflict is ongoing and not in any way ameliorated.
It is therefore vitally important for [X] that both his mother and
step-father put aside their interpersonal differences and their own issues and interests, and instead focus on [X] and what is best for him.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
As was made very clear in Ms S's Family Report, [X] has expressed a firm and unwavering desire to spend more time with his step-father.
In paragraph 28 of her Report, Ms S states as follows:
“[X]’s wishes to have a relationship and spend more time with
Mr Beasley are strong and clear and based on what appears to be positive experiences with Mr Beasley. He is a bright, confident and articulate boy who was prepared to assert his views and his wishes need to be considered and accepted.”
Counsel for the Independent Children’s Lawyer also indicated to the court that in [X]’s discussion with the Independent Children’s Lawyer he was equally as strong and firm and consistent in expressing his wishes to spend more time with his step-father than the August 2009 orders currently provide.
The mother suggested to the Family Report Writer and to this court that [X]’s wishes in this regard have been influenced by the step-father and are in part informed by the step-father’s ability to provide [X] with exciting and interesting activities like skiing, which she does not have the financial resources to support.
In her Family Report, Ms S, at paragraph 30, comments specifically on this issue as follows:
“There is no indication that [X] is being swayed or lured by
Mr Beasley as Ms Jeffreys suggests other than [X] enjoys the time and activities they share.”
The mother, whilst accepting that [X] expresses the wish to spend more time with the step-father, expressed her opinion that [X] is still very young and that he does not have the requisite level of maturity to make the decision as to what time he spends with the step-father.
I do not agree with the mother in this regard. Nor did Ms S. She noted [X] to be a pre-adolescent boy beginning to assert his independence. [X] is nearly 12 years of age and half way through his last year of primary school. I am satisfied he is old enough and is sufficiently mature to have formed his own views as to the time he wants to spend with his step-father.
In these circumstances, I am of the very strong opinion that the court should give considerable weight to the views and wishes being expressed by [X].
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted earlier in this judgment, [X] loves his mother and has a very good relationship with her. She has been his primary carer all his life, and will continue to be so into the future.
Also as noted earlier in this judgment, [X] views his step-father not only as a father figure, but considers him to be his father.
Ms S notes that [X] clearly loves his step-father.
In paragraph 27 of her Report, Ms S states as follows:
“Irrespective of the title or description given to the relationship between Mr Beasley and [X], Mr Beasley is very important and significant to [X] and [X] has formed a close, warm and strong relationship with him. Although [X] does not always refer to
Mr Beasley as “dad”, he nonetheless considers him to be his father and very much a father figure. [X] may have other role models in his life, but Mr Beasley is, apart form his mother, the most important figure and significant relationship he has. [X] wants to retain and develop this relationship and his wish is to spend more time with Mr Beasley and to have Mr Beasley as part of his life.”
[X] was also noted to have a close and positive relationship with the step-father’s partner, Mr H, his step-sister [Y] and the step-father’s extended family.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
This section is not applicable to the parties in this case.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The parties live within 30 minutes of each other and have been able to put in place arrangements for [X] to spend time with the step-father without difficulty, at least in a geographic sense.
If there is to be an increase in [X]’s time with his step-father, this will not impact on his relationship with either of the mother or the
step-father.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This section is not applicable to the parties in this case.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both the mother and the step-father have the capacity to provide for [X]’s emotional and intellectual needs, and that he is the delightful young man described by Ms S, confirms that they have done so to date.
However, as previously set out in this judgment, it is incumbent upon both of them to work through their highly toxic relationship such that they achieve a level of equanimity which enables them to deal with each other civilly and cooperatively in order to minimise the conflict that [X] is exposed to, which will in turn ensure that they do properly provide for his emotional needs.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
This section is not applicable to the parties in this case.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This section is not applicable to the parties in this case.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This matter returned to court 13 months after final consent orders were made.
The circumstances in which that happened have been well and truly canvassed in this judgment.
Whilst this court can and will try to draft orders that minimise the potential for confusion or disagreement between the parties, the reality is that no set of orders can address every possible variation or change in circumstance that will occur in [X]’s life.
This matter will not return to court if the parties to these proceedings address their own relationship and the manner in which they are going to deal with each other into the future as the two most important adults in [X]’s life.
To be frank, neither of the parties impressed the court as being able to be more “[X]-focussed” and less self-focussed. I found both parties to be rather selfish and narcissistic, and tied up in their own insecurities in their role as “parents” for [X].
The possibility of confidential therapeutic counselling for the mother and step-father was canvassed with them by the Independent Children’s Lawyer. Whilst initially both expressed a willingness to undertake such counselling, in his closing submissions Counsel for the mother indicated that she was not willing to undertake such a process as there had been multiple attempts to undergo such counselling historically to no avail.
It can only be suggested that even if the parties are not prepared to undergo joint therapeutic counselling, both of them need to take a very hard look at themselves, accept responsibilities for their own behaviours and how that impacts on their ongoing dispute and dysfunctionality, and accept that they need to do something very positive to address those issues.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
As noted earlier in this judgment, where one or both of the parties to the proceedings before the court are not a child’s parent, it is under this sub-section that those factors under section 60cc of the Act that make specific reference to parents can be considered in the context of the parties who are before the court.
Accordingly, I intend to look at each of those factors that I consider to be relevant.
The benefit of [X] having a meaningful relationship with both the mother and the step-father:
As noted throughout this judgment, [X] has a close and loving relationship with his mother and with his step-father.
One of the main issues in this case is the mother’s resentment of the step-father’s relationship with [X] and what she sees as his encroachment upon her relationship with [X] and the time that she spends with him.
The mother cannot bring herself to accept or acknowledge that from [X]’s perspective, the step-father is his father and that [X] needs to have a father in his life and that [X] has chosen the step-father to fulfil that role for him.
It is therefore in [X]’s best interests that orders be made by this court that enable him to not only continue to have the meaningful, loving and close relationship that he does with his mother, but that also enable him to continue to develop the father-son relationship that he wishes to have with the step-father.
The willingness and ability of each of the mother and step-father to facilitate and encourage a close and continuing relationship between the child and the other party:
The step-father in these proceedings does not challenge [X]’s relationship with his mother or the importance of that relationship for [X].
Quite clearly, the mother is not able to and does not willingly facilitate [X]’s having a “parental” relationship with the step-father.
Having said that however, notwithstanding how strongly the mother may feel, she has at no time prevented [X] spending regular time with the step-father.
The step-father genuinely perceives the mother as working to make his time with [X] as difficult as possible, and sees her as undermining him with others who are involved in [X]’s life, such as his school, the organisers of extra-curricular activities and the parents of his school friends.
I am of the view that the step-father is being somewhat hyper-sensitive and a little misguided in his views of the mother in this regard. Whilst the mother has not always behaved graciously towards the step-father, some of the things of which he has complained have had simple explanations. For example, the bicycle lock incident was a matter of [X] forgetting a combination, not the mother trying to frustrate an activity of the step-father and [X].
Further, the step-father needs to consider his own behaviours and how they impact on the mother. The tone of his recent emails, as set out earlier in this judgment, does not reflect well on him. Nor do his requirements that the mother send an inventory of [X]’s belongings or having that inventory and then not returning items, such as [X]’s gum guard.
In her Family Report and in her viva voce evidence, Ms S raised real concerns about [X]’s response to his mother if she continues, from his perspective, to resist his wishes to spend more time with his step-father.
Ms S was most concerned that if the mother continued to be unable to support [X]’s relationship with the step-father, there is a real possibility that [X] would rebel in the future to assert his will over hers, with the risk that the mother’s relationship with [X] could be undermined and damaged.
The maturity, sex, lifestyle and background of the child and either of the mother and the step-father:
As noted earlier in this judgment, the step-father is homosexual and he is HIV positive. He is in a committed relationship with a same-sex partner, who is also HIV positive.
That the step-father is homosexual and HIV positive was known to the mother when they married.
The only issue that the mother has with the step-father’s lifestyle choices is in relation to his HIV positive status and the impact that might have on [X] in the event that he was travelling overseas with [X] and was to become ill as a result of that status.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the mother and the step-father:
The mother has been a caring, loving and responsible parent since she adopted [X] at the age of five weeks.
I am also satisfied that since coming into [X]’s life, the step-father has demonstrated the same commitment to his responsibilities towards [X].
Since the parties separated, the step-father has sought to be an active “parent” to [X], including the payment of ongoing child support, which was confirmed by way of a consent order on 15 February 2010.
Any other factors:
It is the Independent Children’s Lawyer’s submission that [X]’s very strongly held wishes to spend additional time with the step-father over and above that which the current orders make provision for should be given real weight by the court, and that orders should be made for that additional time to be put in place.
It was the Independent Children’s Lawyer’s submission that [X] should be able to travel with the step-father overseas upon appropriate notice and a detailed itinerary being provided to the mother.
The Independent Children’s Lawyer also submitted that orders should be made that require the parties to attend upon a family therapist as nominated by the Independent Children’s Lawyer to enable them to address communication and parenting issues.
It was the Independent Children’s Lawyer’s submission that during the school term, [X] should spend time with the step-father in a four week cycle, in the first week from after school Thursday until 6.00 pm Tuesday and in the third week from 6.00 pm Saturday until 6.00 pm Tuesday.
The Independent Children’s Lawyer proposed that in relation to school holidays, [X] should spend time with the step-father for five consecutive days in the second term holidays, for the whole of the third term holidays and for a single block period for half the long summer holiday, subject to the step-father being able to obtain leave.
In the context of the ongoing issues in relation to [X]’s involvement in extra-curricular or social functions, it was the Independent Children’s Lawyer’s submission that the step-father not be required to take [X] to any extra-curricular or social functions during any school term holiday or Christmas holiday period, except for any of [X]’s usual rostered team sporting commitments (if any).
Parental Responsibility
Whilst this court can make an order conferring parental responsibility for a child on a person other than a parent (see sections 61D(1) and 64B(2) of the Act), it was agreed between the parties that the order that made provision for the mother to have sole parental responsibility for [X] would remain in full force and effect.
Given the current toxicity of the relationship between the parties in these proceedings, and further the mother’s need to be recognised as [X]’s legal parent, I am satisfied that such an order is in [X]’s best interests.
Conclusion
This matter comes before the court as a direct result of the two adults in [X]’s life being unable to effectively communicate with each other, trust each other and recognise their individual importance to [X].
It is apparent to me that both the mother and the step-father are incredibly insecure in relation to their respective roles in [X]’s life such that they are threatened by the other’s relationship with [X].
The mother sees [X]’s relationship with his step-father as a direct threat to her role as [X]’s mother. The step-father perceives every action by the mother that touches on any part of his relationship with [X] as her deliberately undermining his relationship with [X].
What is really sad is that [X] has absolutely no doubts, issues or concerns in relation to the two most important adults in his life. His mother is his mum and he loves her dearly and his step-father is his dad and he loves him dearly. All he wants is for the two of them to get on with loving him, looking after him, nurturing him and helping him continue to develop into a fine young man. He does not see them in competition, one with the other, and he just wishes they would get on with each other so that he can be left to love them both unconditionally.
By consent, orders were made in this matter in August 2009, which made provision for [X] to live with his mother and to spend time with his step-father. [X] has made it very clear that those orders do not meet his needs and that he wants to spend more time with his step-father.
I am satisfied that it is in [X]’s best interests that orders be made that enable him to do just that.
The real question for me is whether that additional time should take place on an alternate weekend basis or whether it should be adjusted to enable [X]’s full-time, hard-working mother to continue to spend the amount of weekend time with him that she currently enjoys.
On balance, whilst alternate weekends would be a more easily understood routine, I am of the view that it would be the best outcome for [X] if orders were made that did enable his mother to have a little more weekend time with him, particularly in circumstances where [X]’s step-father will not be at work when [X] is with him during the school week.
I am also satisfied that [X] should be afforded the opportunity to travel overseas with his step-father and his step-father’s partner.
Whilst understanding some of the mother’s concerns in relation to overseas travel, I believe that there is no unnecessary risk in enabling [X] to undertake such travel.
However, I do note with concern that where holidays have been taken previously by the step-father with [X], he has been very cavalier in relation to ensuring that [X]’s mother was able to be satisfied as to [X]’s itinerary, proper contact details, arrangements for regular contact while he was away and most importantly of his safe arrival at destinations. No doubt the step-father saw the mother’s requests in this regard as part of her ongoing wish to control his time with [X]. That’s just plain wrong. Any parent would properly seek and should properly be reassured that their child is safe when travelling.
The difficulties that the parties have had in achieving the requisite level of flexibility around what they are able to do when [X] is with them against the commitment that they as [X]’s carers should have to ensuring that he is able to partake in his extra-curricular activities shall, as much as is possible, be addressed in orders made by me.
Finally, whilst my very strongly worded concerns in relation to these parties and their attitudes, one to the other, and their impact upon [X] have been well and truly ventilated in this judgment, I am not going to accede to the Independent Children’s Lawyer’s submission that orders be made that the parties undertake therapeutic counselling in an endeavour to address those issues.
The mother clearly indicated that she did not believe that such intervention would be of assistance and in my experience, interventions of this type are only successful if the parties involved are willing and open to embracing such therapy and the possible outcomes it can achieve.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 18 August 2011
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