Bisharad & Mukerji
[2022] FedCFamC2F 473
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bisharad & Mukerji [2022] FedCFamC2F 473
File number(s): PAC 1958 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 13 April 2022 Catchwords: FAMILY LAW – Parenting – best interests of children – Orders made Legislation: Family Law Act 1975 (Cth), 60B, 60CA, 60CC, 61DA, 65DAA, 65D Division: Division 2 Family Law Number of paragraphs: 92 Date of last submission/s: 7 April 2022 Date of hearing: 6 – 7 April 2022 Place: Parramatta Counsel for the Applicant: Ms Reid Solicitors for the Applicant: Jack Rigg Solicitors Counsel for the Respondent: Ms Conte-Mills Solicitors for the Respondent: Hillcrest Family Lawyers Counsel for the Independent Children’s Lawyer: Mr Greenaway of Counsel Solicitors for the Independent Children’s Lawyer: JLM Family Lawyers Pty Ltd ORDERS
PAC 1958 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BISHARAD
Applicant
AND: MS MUKERJI
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
13 APRIL 2022
THE COURT ORDERS THAT:
1.That the Mother have sole parental responsibility for the child X born 2016 (“the child”) subject to the following:
(a)Prior to the Mother making any major long term decisions for the child including but not limited to education or non-urgent medical care, the Mother shall advise the Father via email of her proposed decision and thereafter the Father shall have 7 days to respond to the Mother via email with his views as to her proposal.
(b)That upon the Mother receiving an email from the Father pursuant to the above, the Mother shall consider the Father’s views prior to making a decision and shall thereafter advise the Father of her decision 7 days prior to exercising parental responsibility.
2.The Independent Children’s Lawyer’s application for costs against the Father is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bisharad & Mukerji has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final parenting hearing relates to the child X born 2016, aged 5 years.
The Court has recently made final parenting orders in terms of the parties’ agreements however there remains one outstanding issue, namely parental responsibility, which the Court will now determine.
The Mother seeks an order for sole parental responsibility in relation to the child whereas the Father seeks an order for equal shared parental responsibility.
The parties and ICL elected not to conduct any cross examination of either party or lay or expert witnesses but rather informed the Court that they were content to simply rely upon their documentary material and make oral submissions. This was the course that the final hearing took in relation to the issue of parental responsibility.
EVIDENCE
In the determination of this case the Court has had regard to all of the documentary evidence referred to below. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the s 60CC factors (see below).
The Father relied upon the documents referred to in his Case Outline filed 30 March 2022 and his Case Outline.
The Mother relied upon the documents referred to in her Case Outline filed 5 April 2022 and her Case Outline.
The ICL relied upon the documents referred to in her Case Outline filed 5 April 2022 and her Case Outline.
The Father’s Affidavit affirmed 3 November 2021 and filed 4 November 2021 (230 pages)
The Father was born in 1980; he is now aged 41 years. The Mother was born in 1987 and is now aged 34 years. The parties hail from Country C.
The Mother lives in Suburb B and the Father lives in Suburb D.
The Father works and is employed in information technology.
The parties married in 2010. They separated on a final basis in 2019. The Mother left the former matrimonial home with the child and obtained rental premises.
Since mid-2019 the Father has spent time with the child on a regular basis during the daytime, apart from a period when there was no time between mid-2020 and early 2021.
Orders made on 10 March 2020 by consent provided, inter alia, that changeovers be supervised by E Family Services.
There was verbal disputation between the parties at changeover in early 2020. The Father told the Mother not to be unpleasant in front of the child. There was verbal disputation in mid-2020. At this time the Father was very concerned that the Mother was trying to remove him from the child’s life.
After a Court appearance on 11 March 2021 the parties agreed eventually for changeover to occur at Suburb D police station.
There was disputation between the parties in relation to the Father’s car in early 2021 including the Mother pushing the Father away to prevent him from taking any photos of her car.
In early 2021 the Mother did not respond to the Father’s emails regarding the child’s development and activities.
In mid-2021 the Father went to take a photograph of leftover food and boxes around the child’s car seat and the Mother’s car. The Mother became angry and started shouting at the Father. This occurred outside Suburb D police station.
The Father has concerns that the Mother does not communicate with him about her plans and activities for the child’s development. He is not aware whether the Mother has engaged the child in any activities for the past six months.
The Father states that although he has observed the changeover at Suburb D police station is working well, there are still instances where the Mother has been verbally and physically abusive.
The Father states that he would like to engage the child in various sporting activities.
The Father states that there was a verbal disputation between the parties in late 2021 relating to an eye specialist appointment for the child.
The Father states that during his video calls for the child he finds that the Mother is not cooperative.
In late 2021 when the Father had a video call with the child the Mother ordered the child to disconnect the phone. Out of frustration the Father said to the Mother, “I cannot even get time to help my child with his development”.
The Father states that, following a video call with the child, he became concerned that the Mother was teaching the child to lie.
In mid-2021 the Father emailed the Mother raising some of his concerns that the child was using bad words and displaying odd behaviour. He was concerned that the Mother may not be stopping this during her time with the child. He stated that in response the Mother accused him of abusing her and the child on the phone, which the Father denies.
The Father has sought to communicate with the Mother about the child’s hygiene and odour food smell. He has sent emails to the Mother raising his concerns about the child’s diet and care.
The Father has emailed the Mother in mid-2021 about enrolling the child in art lessons. The Mother responded that he was creating art at home. The Father was of the view that the child could be assisted by art classes.
In mid-2021 the Father emailed the Mother about enrolling the child for art classes to improve his development. The Father did not receive a response to his email.
From mid to late 2021 the Father sent emails to the Mother about making arrangements for the child to have sporting lessons. He did not receive any response from the Mother in relation to his October emails.
The Mother’s Affidavit filed 5 November 2021
The Mother states that it has been extremely difficult to communicate with the Father.
The Mother is a healthcare worker. The Mother is not presently in paid employment.
The Mother asserts that she finds it impossible to coparent the child with the Father. In this context the Mother refers to constant abusive emails and texts and demands from the Father. She refers to threats made by the Father to make complaints against the Mother to the Department of Communities and Justice, and complaints by the Father to the child’s day care about her parenting.
The Family Report
The family report interviews were held in August and September 2020. The family report writer additionally had a telephone interview with the child’s speech pathologist.
The Mother has been the child’s primary carer from birth to date.
The Father did not spend regular time with the child from separation until interim orders were made by consent in July 2019.
The Father acknowledged that he is on occasion late in returning the child to the Mother but not deliberately so and in this regard he states that he can be held up in traffic.
The family report writer stated that the parties’ cultural background and extended family relationships play an important role in their family life and decision-making.
The family report writer stated that there was currently no communication possible between the parties unless directed through the Mother’s lawyers.
The family report writer stated that without changeovers being supervised, the likelihood that further incidents of interpersonal conflict between the parties may break out in the presence of the child were highly likely. She stated that without being assisted to access supervised changeovers, no protective factors were identified as present which would assist in mitigating or reducing the current risk of recurrence of family violence, which was assessed to be high.
The family report writer stated that after the Father initiated these proceedings in March 2019, he made a number of reports to the statutory child protection authority alleging that the child was at risk of abuse and neglect, including medical neglect in the Mother’s care. The Mother had denied these allegations. The family report writer observed that the child had not been the subject of any mandatory Risk of Significant Harm (ROSH) reports made by his GP, paediatrician, allied health workers (speech pathologists) or early childhood educators.
The family report writer referred to an established diagnosis for the child of mild intellectual disability and global developmental delay.
The family report writer stated that the Father impressed as holding a high level of underlying emotional intensity and anxiety focused on attempting to control his environment and interpersonal interactions.
The family report writer observed that the Father had reflected that he realised that he continued to work long hours during the marriage and had probably become a workaholic. He had observed, “If you have no special gifts then you must be hard-working.”
The Father had described the Mother as a more observant Muslim.
The Father explained that the parties’ marriage had been arranged by their families.
Mr Bisharad reported that four or five years into the marriage verbal arguments began, usually every couple of weeks.
The Father reported that dispute resolution had failed, when discussing the history of litigation.
The Father reported that he is attending post separation counselling once every three weeks.
The Mother presented as a warm, pleasantly polite, articulate and intelligent person.
The Court will now refer to and set out particular numbered paragraphs from the family report.
The Court refers to the following paragraphs from the family report:
214. [Ms Mukerji] was asked to discuss what she is seeking from the Court in respective final orders. The Mother is seeking to be granted sole parental responsibility in relation to her son [X] “because the Father has shown no respect for her decisions regarding the child on anything”.
215. [Ms Mukerji] said that she “Does not want to stop visitation between my son and his father but I need the Father to be respectful and stop being abusive and demeaning toward me in front of the child”. [Ms Mukerji] does not believe that it is in the best interest of her son to be exposed to this ongoing abuse directed toward his mother by his father.
217. Both parties agree that quality of communication between them has generally been problematic and difficult. They do not have a history of co-operation and compromise or working together to resolve problems or mutual decision making.
219. [Mr Bisharad] and [Ms Mukerji] have made mutual but vastly divergent claims regarding there having been a history of family violence in the relationship. [Ms Mukerji] claims that [Mr Bisharad] was the instigator and primary perpetrator of a pattern of verbal, emotional and psychological, and physical violence together with financial abuse directed toward her, both during the marriage and after the separation. For his part, [Mr Bisharad] stridently denies [Ms Mukerji]’s claims that he has been responsible for directing alleged verbal and physical toward her and asserts that it was he who was the victim of family violence and it is [Ms Mukerji] who was the instigator of aggression toward him.
221. The opinion and role of their respective parents remains influential even after separation. Both parties reported concerns about hurts and offences caused by the other party toward their respective parents and offences caused by both the paternal and maternal grandparents toward one another during the period immediately following the separation. This discord between the two families and the paternal and maternal grandparents has served to amplify and polarise the post-separation conflict between the parties even further.
224. At the time of the assessment communication between the parties and the parenting arrangements under the current Interim Orders had broken down completely.
226. At interview, [Mr Bisharad] denied he had been aggressive or controlling and said he had not directed “rude, demeaning and disrespectful” language toward [Ms Mukerji] in the presence of the child. [Mr Bisharad] explained that prior to the recent incident with [Ms Mukerji] on 11 August 2020, he had not attempted to communicate directly with her in any way; but in fact had “refused to speak to her at changeover her for 6 months” prior to the recent incident which lead to [Ms Mukerji] stopping his contact with [X]. [Mr Bisharad] said that on 11 August 2020, he had been “trying to follow the advice of his counsellor” when he more recently attempted to initiate a direct conversation with [Ms Mukerji] during the changeover. [Mr Bisharad] said he was hoping to apologise to [Ms Mukerji] for refusing to communicate with her and that he had merely attempted to amicably discuss a proposal for [Ms Mukerji] to reconcile with him and return to the marriage.
227. [Mr Bisharad] expressed a deep level of hurt, including unresolved grief, anger and bitterness, in describing how [Ms Mukerji] refused to interact with him and in reporting that she had responded by telling him that he should not attempt to speak to her directly during the changeover and only speak to their son.
229. [Ms Mukerji] reported that it had been her experience that when [Mr Bisharad] becomes involved in communicating with [X]’s medical and allied health support services and early childhood services and educators, he tends to “make trouble for her” and undermines the positive relationships she works hard to build with professionals who are helping [X]. [Ms Mukerji] reported that “nothing is ever good enough for him [Mr Bisharad], the childcare is not good enough or he does not agree with decisions I make about which doctors or speech pathologist [X] sees”.
230. Based on their history of poor communication, throughout their marriage as well as after separation, [Ms Mukerji] expressed strong doubt that she and [Mr Bisharad] would be able to achieve the level of trust and co-operation required to successfully make equal shared parental responsibility and collaborative decision making for [X] work.
231. For his part [Mr Bisharad] stated on the one hand that he wishes to exercise equal shared parental responsibility with [Ms Mukerji] in order to “protect his son’s rights”. [Mr Bisharad] stated that he believes “the child has a right to have a relationship with the Father and the Mother equally”. [Mr Bisharad] explained himself saying he can “only do his part for my son if the child’s equal rights are protected”. [Mr Bisharad] was careful to state that “there is no AVO or criminal record” against him, that he is not a “bad person or bad father” that his son should be punished by not having his father in his life. [Mr Bisharad] was careful to restate that the only reason he went to court was “for my son’s rights, to protect my son’s rights”. [Mr Bisharad] believes his proposal for [X] to live with him in a consecutive block of 5 days each fortnight will be best for his son. [Mr Bisharad] believes that it is important for him to be sufficiently involved in [X]’s life to allow him to be an appropriate role model for his son.
232. [Mr Bisharad] stated that he is “better equipped to help his son and be a positive influence on the child” as he grows older as compared to the Mother and this is why he believes that having equal shared parental responsibility will be essential for ensuring that responsible decisions are being make on [X]’s behalf into the future.
233. In discussing his relationship with [Ms Mukerji] at interview, [Mr Bisharad] expressed continued ambivalence toward [Ms Mukerji]. On the one hand [Mr Bisharad] seems to still hold hopes of reconciling the marriage, saying he is “waiting for [Ms Mukerji] to come to her senses”, whilst on the other hand [Mr Bisharad] appears to become quickly overwhelmed by an intense sense of mistrust and betrayal he feels toward concerning [Ms Mukerji] and her actions. [Mr Bisharad] described [Ms Mukerji] as having “destroyed his family and my life”, “taking [X] away from his father without consultation”, “acting in secret to leave the marriage”, “ruining his life by taking $95,000 from the joint savings account and $30,000 of gold jewellery, some of which gifted by his family to [X] without permission”.
234. [Mr Bisharad] reflected and observed, “how can I ever trust such a person?” stating that in addition to taking his life savings, [Ms Mukerji] had also “financially exploited him”. [Mr Bisharad] said [Ms Mukerji] had done this by having him “assist her to come to Australia”, “providing a home and support for her while she was studying” and “paying for non-local student fees associated with her gaining her university degree”. [Mr Bisharad] was careful to stress that [Ms Mukerji] left him carrying a significant credit card debt, including around $50,000 he paid toward her student fees.
235. [Mr Bisharad]’s presentation at interview and during the observation showed some signs consistent with anxiety, depression and poor post-separation adjustment and grief. [Mr Bisharad] intermittently became tearful during the interview, vacillated between making statements which ascribed [Ms Mukerji]’s virtues, placing her on a pedestal and calling her a “pious and devout” person and a “princess” to making angry and negative statements about feeling betrayed and “set up” by [Ms Mukerji], attributing her which having financially exploited him, stealing from him, ruining his life and seeking to punish him by withholding and undermining his relationship with his son.
236. During the observation of his interaction with [X], [Mr Bisharad] understandably found it difficult to contain his emotion on being reunited with his son, but he also found it difficult to regulate himself and protect his small son from being overwhelmed and confused by the intensity of his father’s emotion and grief. [Mr Bisharad] appears to have poor awareness of the impact of his behaviour or the negative opinions and attitudes he expresses concerning [Ms Mukerji] may have on his son or how they may potentially undermine [X]’s relationship and security with his mother.
240. [X] has a warm and positive relationship with both his parents.
241. At this time [X] has established his strongest and most significant attachment relationship with his mother who is currently his primary caregiver and a secondary, but still significant attachment with his father.
242. The quality of [X]’s attachment relationship with his mother appears to be positive and secure. Based on the observation, the quality of [X]’s attachment relationship responses with his father can be characterised as anxiously ambivalent.
The family report writer spoke to the child’s speech pathologist and stated, inter alia:
245. In addition to her report dated 12 March 2020 [attached as Annexure A], [Ms F] provided the following comments concerning [X]:
-[X] was assessed as presenting with a mild language delay consistent with the diagnosis of mild global developmental delay diagnosed by his referring paediatrician.
Under the heading Evaluation, the family report writer stated that Ms Mukerji’s presentation during the assessment was not consistent with a person currently suffering from a depressive illness or other serious mental health condition.
The Court refers to the following paragraphs from the family report:
337. [Ms Mukerji] reported that there has been a complete breakdown in communication between her and [Mr Bisharad]. the parents and caused [Ms Mukerji] to stop making the [X] available to spend time with his father, because she no longer feels safe or comfortable to undertake the changeover or meet face to face with [Mr Bisharad] without 3rd party supervision.
338. [Ms Mukerji] is seeking sole Parental Responsibility because [Mr Bisharad] “has never respected her decisions about the child” and more recently [Mr Bisharad] has demonstrated during that he is unable or unwilling to respect her personal boundaries or her request for him only communicate with her regarding issues related to [X] in writing and not face to face. [Ms Mukerji] is concerned that [Mr Bisharad] continues to seek to control her through anger and demeaning and disrespectful language and in doing this in front of their son, undermining her parental authority and relationship with their son.
339. [Mr Bisharad] reported that he has been seeing a counsellor and attempting to work on improving his post-separation relationship with [Ms Mukerji], that he understands that he needs to communicate positively with [Ms Mukerji] about parenting their son, that he must be strong and be the best parent he can be for his son. [Mr Bisharad] appears to struggle to accept [Ms Mukerji]’s wish not to return to the marriage and that she does not wish to reconcile.
340. [Mr Bisharad] is still processing his post-separation adjustment and appears to vacillate between moments of insight and regret and ventilating a deep sense of betrayal and rage, saying [Ms Mukerji] has “set him up”, “taken his child”, “stolen his life savings”, “financially exploited him”, and holding [Ms Mukerji] responsible for the breakdown of his marriage and “destroying his life”. [Mr Bisharad] also finds it difficult to regulate his emotions when in the presence of the child, being unable to protect [X] from his intense feelings of grief, loss and need. [Mr Bisharad] shows low levels of insight and awareness of how his behaviour and attitudes toward [Ms Mukerji] may impact his child and he appears to find it difficult to be emotionally present to his child. [Mr Bisharad] uses the child to meet his emotional needs rather than demonstrating his capacity to place the needs of the child above his own. [Mr Bisharad]’s understanding of [X]’s age and stage of development and how [X]’s developmental delay and additional speech and communication needs are appropriately met appears underdeveloped. [Mr Bisharad]’s parental style when interacting with [X] can be characterised as parent lead rather than child lead, as directive rather than facilitative and empathetic, didactic and reliant on “testing” and over protective and controlling over allowing the child agency and encouraging exploration and risk taking within limits.
341. [X] appears to enjoy a warm and positive relationship with both his parents.
342. At this time [X] has established his strongest and most significant attachment relationship with his mother who is currently his primary caregiver and a secondary, but still important attachment with his father.
343. The quality of [X]’s attachment relationship with his mother appears to be positive and secure. Based on the observation, the quality of [X]’s attachment relationship responses with his father can be characterised as anxiously ambivalent.
344. [Mr Bisharad] and [Ms Mukerji] have an extremely poor post-separation relationship quality of communication; there is a high level of conflict and low level of trust present. All spend time with arrangements under the current orders have broken down. More than two months have lapsed since [Mr Bisharad] last spent time with [X] on 11 August 2020.
345. The quality of communication and parenting co-operation and decision making between [Mr Bisharad] and [Ms Mukerji] appears to have been poor during the marriage and seems to have deteriorated further since separation.
346. Efforts to assist the parents to repair and reconcile their relationship and marriage and make appropriate parenting arrangements for [X] immediately after separation were attempted according to their [Country C] Muslim patriarchal cultural tradition whereby [Mr Bisharad]’s and [Ms Mukerji]’s respective fathers, in their roles as head of the household, intervened and attempted to negotiate terms on behalf of each of their children. This proved unsuccessful and appears to have caused the conflict to become move entrenched and positional.
347. There appear to be complex cross-cultural issues present in this case which impacts both [Mr Bisharad] and [Ms Mukerji]’s capacity to successfully make use of mediation in resolving their parental dispute. The role each of the Father and mother’s own parents [the child’s paternal and maternal grandparents] play in decision making in the matter is significant. The influence of cultural traditions is also an issue, in particular that marriage and family life is organised along patriarchal lines and that separation and divorce is not common. [Mr Bisharad]’s efforts to try to “protect and control” his wife and child and persistence in refusing to accept that reconciliation is out of the question may be partly informed by cultural values and expectations.
351. [Ms Mukerji] is child focused, shows high levels of parental sensitivity and parental reflective functioning, she is able to be flexible and adaptive, has a good understanding of the child’s age and developmental stage and how to assist [X] in his additional language and communication needs. [Ms Mukerji] provided reports to the family consultant which evidence that she has been appropriately supporting [X]’s medical, developmental and educational needs, she has been taking [X] to appointments and has developed a good working relationship with [X]’s early childhood educators, allied health professionals such as speech pathologist and his paediatrician. A telephone interview with [X]’s Speech Pathologist, [Ms F], who was worked with [X] and [Ms Mukerji] at [G Service], confirmed that [Ms Mukerji] has conscientiously followed up allied health services recommended by the paediatrician. Feedback from the Speech Pathologist also confirmed that [Ms Mukerji] presentation and quality of engagement and interaction during the speech pathology sessions was consistent with the high level of parental sensitivity and positive parenting function and skills observed in [Ms Mukerji]’s interaction with her son during this assessment.
352. There have been no concerns raised by third party mandatory reporters concerning the safety and welfare of the child in the care of his mother.
353. Given that [X] has been identified as a child who has some additional language, communication and developmental needs, [Ms Mukerji] will need to be able to engage with and work co-operatively with his medial, allied health and educators and there needs to be consistent approach and understanding in respect to engaging with, co-ordinating and managing any early intervention services. Given [Mr Bisharad] appears to have a history of contradicting, undermining and not being able to respect [Ms Mukerji]’s decision making in as it concerns the day to day or the child’s long term medical and educational needs in the past, it is unlikely that he will be able to easily accept her decisions or collaborate effectively in joint decision making with [Ms Mukerji] in respect of [X] in the future. Prospects of [Mr Bisharad] and [Ms Mukerji] successfully exercising equal shared parental responsibility in regard to [X] are low.
354. The parenting arrangements being proposed by the Mother in her application appear to better meet [X]’s current attachment and developmental needs. [Ms Mukerji] also demonstrates a higher level of parental sensitivity and parental attunement and capacity for parental reflective functioning. [Ms Mukerji] demonstrates high levels of empathy and capacity to think psychologically in regard to her child. [Ms Mukerji]’s parenting style can be characterised as child lead, facilitative, flexible, and adaptive. This together with demonstrated skills in addressing his additional language and communication needs equips [Ms Mukerji] to adapt her parenting skills, scaffold herself and [X] by engaging with community support services and meet [X]’s changing needs and challenges in the future.
The Court accepts the evidence of the Family Report writer.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
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: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act.
Under ss (4) of section 61DA of the Act, the above presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The best interests of the child
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The child has meaningful relationships with both parents as described by the family report writer and will benefit from a continuance of those relationships.
Taking into account the Court’s Consent Orders in Exhibit A made on 7 April 2022, should the Mother have sole parental responsibility for the child, and be required to:
(a)advise the Father of any proposed major long-term decision for the child, with the Father thereafter having seven days to respond to the Mother via email with his views as to her proposal;
(b)that upon the Mother receiving an email from the Father pursuant to the above, the Mother consider the Father’s views prior to making a decision;
(c)and thereafter advise the Father of her decision seven days prior to exercising parental responsibility,
there is a real prospect that the child’s meaningful relationship with the Father will be maintained.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Should the Court make an order, as proposed by the Father, that the parties have equal shared parental responsibility for the child, effectively requiring the parties to reach agreement, in a timely fashion, relating to major long-term decisions to be made for the child relating to his care welfare and development, there is a significant risk that the parties will experience conflict in endeavouring to reach such agreement, and to which the child would be exposed to his detriment.
There is a significant prospect that there will be major long-term decisions to be made for the child, not only, for example, in relation to choice of high school, but also in relation to the child’s diagnosis of global development delay with related issues of speech and other functional development; such prospect will therefore potentially increase the number of occasions that the parties would be required to reach agreement in relation to such decisions. Accordingly, there is a heightened need for any major long-term decision for the child being made in the absence of conflict.
The parties have experienced a highly conflictual relationship with their interpersonal conflict continuing post separation. The Court observes that the parties and ICL agreed to a final parenting order that changeovers that do not occur at school shall occur at the Suburb D police station until the child commences Year 3; the Court can infer that such Order was agreed upon to minimise the risk of interpersonal conflict in front of the child at changeovers.
Viewed holistically over the course of the parties’ relationship and post separation to date, the parties’ ability to consistently communicate in relation to the child in a positive fashion without conflict has been and remains unsatisfactory. And further, there likely remains significant mistrust of the parties towards each other in relation to their respective care of the child.
The Father lacks insight into the adverse effects of certain of his past behaviour upon the Mother which leads the Court to have real concerns as to the manner in which the Father would seek to reach agreement with the Mother in relation to major long-term decisions to be made for the child. For example, the Father’s Affidavit filed 4 November 2021 refers to incidents in mid-2021 when he sought to take photographs of the inside of the Mother’s car because it contained food scraps in the child’s car seat. These photos were sought to be taken in the presence of the Mother. This had led to conflict between the parties at that time. The Father’s aforesaid Affidavit refers to the Father recording an incident when the Mother brought the child outside while holding an umbrella in mid-2020. Yet, despite the above behaviour by the Father in seeking to take photographs and record the Mother’s behaviour, in her presence, the Father asserted, later in his Affidavit, that he has never demeaned the Mother and has tried his best always to encourage her and support her.
The Court is also concerned as to the reliability of the Father’s aforesaid Affidavit in relation to his denials of abuse towards the Mother and referred to in that Affidavit. For example, in the Child Dispute Conference Memorandum dated 8 October 2019 the Father admitted that both parents engaged in name-calling. Further, in the Mother’s exhibit C to her Affidavit filed 5 November 2021, there are emails from the Father to the Mother as recently as late 2021, wherein the Father accuses the Mother of being negligent towards the child, telling the Mother that she was “rotten to your core”, and accusing the Mother of telling lies to 3rd parties. The Court prefers the evidence of the Mother, where in conflict with the Father, in relation to her assertions that the Father was abusive and critical towards her during the relationship and post separation in relation to her care of the child.
The Court refers to paragraph 340 of the family report wherein the family report writer stated that the Father was still processing his post-separation adjustment and appears to vacillate between moments of insight and regret and ventilating a deep sense of betrayal and rage, saying the Mother has “set him up”, “taken his child”, “stolen his life savings”, “financially exploited him”, and holding the Mother responsible for the breakdown of his marriage and “destroying his life”. These observations of the family report writer, which the Court accepts, are of concern to the Court in the context of the parties seeking to reach agreement, prospectively, in relation to major long-term decisions affecting the child.
The Court also has a concern in relation to the Father’s admission to the family consultant at the Child Dispute Conference on 1 October 2019 that he had made a number of reports to FACS because the Mother was allegedly neglectful of the child. He told the family consultant that he had noticed dirty bottles, and felt that the Mother does not feed the child adequately. Consistent with these reports, the Father, in his Affidavit filed 4 November 2021, had continued to make complaints against the Mother of finding the child in a dirty nappy, and in dirty and wet clothes, and complaints made by the Father of the child having dirty fingernails. The Court does not accept that the Mother is or has been neglectful of the child but finds that she is and has been a most satisfactory parent to the child. These previous reports to FACS and the Father’s continued complaints that the Mother is neglectful of the child raises a concern to the Court in the context of the parties seeking to reach agreement, prospectively, in relation to major long-term decisions affecting the child without conflict.
The Court’s concerns and views, discussed above, remain, despite the Father’s participation in parenting and other courses postseparation.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is too young to express a relevant view.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Post separation, the Mother has been usually making major long-term decisions for the child albeit that the Father has sought to participate in the making of such decisions.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties appear to have maintained the child whilst he was in each parties’ respective care post separation. The Father pays child support.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Not applicable.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Not applicable.
(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
The Mother has such capacities.
The Father has capacity to provide for the child’s intellectual needs however he probably has difficulties being consistently emotionally present for the child. In this regard, the Court refers to the evidence of the family report writer (her family report is exhibit A).
(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
The Court refers to its discussions above under the primary considerations and additional considerations.
The child has borderline to mild global developmental delay (both receptive and expressive language and self-help skills). Assessed by a paediatrician in mid-2021, his functional skills were of a 3.5-year-old, which is 42 months at a chronological age of 58 months. His paediatrician at that time recommended that the child continue his speech (pathology) sessions using NDIS.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the primary considerations.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
Not applicable.
(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
The Court is of the view that the Mother and ICL’s proposed Order that the Mother have sole parental responsibility for the child, in contradistinction to the Father’s proposed Order that the parties have equal shared parental responsibility for the child, would be least likely to lead to the institution of further proceedings in relation to the child. In this regard, the Court refers to its discussions above under the primary considerations.
m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
PARENTAL RESPONSIBILITY
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the child that the Court order that the Mother have sole parental responsibility for the child in relation to making major long-term decisions in respect to the child’s care welfare and development. The Court will also order that the Mother be required to advise the Father of her proposed decision and consider the Father’s views in relation to such proposed decision as discussed above under the meaningful relationship primary consideration.
Accordingly the Court will make the following Orders:
(1)That the Mother have sole parental responsibility for the child X born 2016 (“the child”) subject to the following:
(a)Prior to the Mother making any major long term decisions for the child including but not limited to education or non-urgent medical care, the Mother shall advise the Father via email of her proposed decision and thereafter the Father shall have 7 days to respond to the Mother via email with his views as to her proposal.
(b)That upon the Mother receiving an email from the Father pursuant to the above, the Mother shall consider the Father’s views prior to making a decision and shall thereafter advise the Father of her decision 7 days prior to exercising parental responsibility.
(2)The Independent Children’s Lawyer’s application for costs against the Father is dismissed.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 13 April 2022
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