BRICKLEY & BRICKLEY
[2014] FCCA 3137
•14 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRICKLEY & BRICKLEY | [2014] FCCA 3137 |
| Catchwords: FAMILY LAW – Parenting – consideration of spend time with arrangements for child – father seeks increase in time to overnight periods – questions of father’s parenting capacity raised by the mother. |
| Legislation: Evidence Act 1995, s.144 |
| Johnson & Page [2007] FamCA 1235 Stevenson & Hughes (1993) FLC 92-363 Mazorski & Albright [2007] FamCA 520 AMS & AIF (1999) CLR 160 |
| Applicant: | MR BRICKLEY |
| Respondent: | MS BRICKLEY |
| File Number: | PAC 3672 of 2013 |
| Judgment of: | Judge Harman |
| Hearing dates: | 6 and 7 March 2014 |
| Date of Last Submission: | 4 April 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 14 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maddox |
| Solicitors for the Applicant: | Turner Freeman Lawyers |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Marsdens Law Group |
ORDERS
The parents Mr Brickley and Ms Brickley shall have equal shared parental responsibility for their child X born (omitted) 2011.
X shall live with his mother Ms Brickley.
X shall spend time with his father Mr Brickley:
(a)From now and until 10 November 2014:
(i)From 9am until 5pm each Sunday;
(ii)Such further and/or other times as are agreed between the parents from time to time;
(b)From 11 November 2014 until 10 November 2015:
(i)From 3-6pm on X’s birthday;
(ii)From 5pm Saturday until 5pm Sunday each weekend save for the Mother’s Day and Easter weekends;
(iii)From 5pm Friday until 5pm Saturday on each of the Mother’s Day and Easter weekends;
(iv)From 5pm Christmas Day until 5pm Boxing Day;
(v)Such further and/or other times as are agreed between the parents from time to time.
(c)From 11 November, 2015 until Term 1 of the year in which X commences school:
(i)From 3-6pm on X’s birthday;
(ii)From 5pm Friday until 5pm Sunday each alternate weekend save for the Mother’s Day, Easter and Christmas weekends;
(iii)From 5pm Friday until 5pm Sunday on the Father’s Day weekend;
(iv)From 5pm Friday until 5pm Saturday on the Easter weekend;
(v)From 5pm Christmas Day until 5pm Boxing Day;
(vi)Such further and/or other times as are agreed between the parents from time to time.
(d)From Term 1 of the year in which X commences school:
(i)From 3-6pm on X’s birthday;
(ii)During school terms from the conclusion of school Friday until the commencement of school the following Monday each alternate weekend save for the Mother’s Day, Easter and Christmas weekends to commence or resume with the first weekend of each term;
(iii)From the conclusion of school Friday until the commencement of school Monday on the Father’s Day weekend;
(iv)From the conclusion of school Thursday until 5pm Saturday on the Easter weekend;
(v)From 5pm Christmas Day until 5pm 27 December;
(vi)For the first half of each short NSW school holiday period (those following Terms 1,2 and 3) from 10am on the first Saturday until 5pm on the middle Saturday;
(vii)For a block in each Christmas school holiday period from 10am 2 January until 5pm 11 January;
(viii)Such further and/or other times as are agreed between the parents from time to time;
For the purpose of X spending time with the father prior to X commencing school the father shall collect X from the mother’s home or Day Care at the commencement of each period of time and the mother shall collect X from the father’s home at the conclusion of each period of time.
For the purpose of X spending time with the father once X has commenced school the father shall collect X from X’s school or, if not a school day, the mother’s home at the commencement of each period of time and the father shall return X to his school or, if not a school day, the mother’s home at the conclusion of each period of time.
Until X commences school the mother shall be entitled, for two (2) occasions per year to suspend the operation of weekend time between X and the father to allow her to have an uninterrupted period of up to 3 weeks to travel with X and provided:
(a)Such periods of time as are missed shall be made up as soon as practicable and within 4 weeks of the mother’s return from travel;
(b)Such periods shall not include Father’s day, X’s birthday, Easter or Christmas Day.
Each parent shall be entitled to speak with X on the telephone (and/or other electronic means such as Skype and Facetime) whilst he is in the care of the other parent and with respect to same:
(a)The parent wishing to speak with X shall telephone between 6-7pm (and provided that this order shall not be taken as precluding telephone calls at other times);
(b)The parent X is with shall ensure that between 6-7pm that their phone is switched on, in a mobile reception area and available to receive incoming calls;
(c)The parent X is with shall provide X with such assistance as he may require in answering and using the telephone but otherwise allow him to speak with privacy and without interruption or distraction.
The father shall, within 28 days of these orders, arrange and attend, at his expense, an appointment with each of X’s treating General Practitioner and Speech Pathologist for the purpose of discussing X’s health needs (including but not limited to any food allergies) and his expressive speech development and exercises that the father can engage in with X to assist with same.
Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to allow, enable and permit:
(a)Each parents’ details to be recorded with the children’s school and/or child care as both a parent and emergency contact person;
(b)Each parent to obtain from the children’s school and/or child care such information, materials, documents, reports, copies of photos or other materials as they may desire.
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to X such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with X if hospitalised.
Each of the parties shall forthwith and to the extent that they have not already done so do all things, sign all documents and give all consents, authorities and instructions necessary to allow an application to be lodged to obtain a passport for X each paying one half of any fee charged for the issue of the passport and to be held by the mother.
Pursuant to s.65Y of the Family Law Act the mother shall be entitled to travel with X outside of the Commonwealth of Australia without the further consent of the father for up to two (2) occasions per calendar year each of up to 21 days duration and provided:
(a)The mother shall give the father not less than four (4) weeks’ notice of her intention to travel and an itinerary of intended travel including the place/s X will be staying and a copy of return travel documents;
(b)The mother shall provide the father a telephone number/s on which telephone communication (as above) can continue during that holiday travel.
Each parent shall, at all times, keep the other advised of their usual residential address (being the address at which X will ordinarily reside whilst in their care), telephone contact number/s and email address.
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 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.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that the parties intend to use a communication book for the purpose of communicating non-urgent information regarding X.
IT IS NOTED that publication of this judgment under the pseudonym Brickley & Brickley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3672 of 2013
| MR BRICKLEY |
Applicant
And
| MS BRICKLEY |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications with respect to future care arrangements for a young child, X, born (omitted) 2011.
The parties to the proceedings are X’s parents, being his father, Mr Brickley, who is the Applicant, and his mother, Ms Brickley, who is the Respondent.
Notwithstanding the serendipitous date of birth of X he is unlucky. The arrangements for his care are far from agreed between his parents.
X is presently 29 months of age.
Family Dispute Resolution
The parties have not, prior to these proceedings, attended Family Dispute Resolution.
The father attempted to attend Family Dispute Resolution and a certificate was issued by a Family Dispute Resolution practitioner on 8 July 2013. The certificate evidences the father’s attempts and indicating that Family Dispute Resolution did not proceed as the mother had not attended.
Not a great deal would appear to turn upon that issue, save:
a)The parties have been denied the opportunity of consensual resolution by attending Family Dispute Resolution or any attempt thereat; and
b)I am thus obliged by reference to section 60I(9) of the Family Law Act 1975 to consider whether the parties should attend Family Dispute Resolution.
Section 60I of the Act mandates that the Court not hear and determine proceedings between parties unless they have attended Family Dispute Resolution or an exemption has been granted by reference to the relevant provisions contained therein.
I am satisfied that the dispute between these parties and that the issues that each raises are such that the parties would, within the terms of section 60I(9), be entitled to an exemption. However, it is regrettable that dispute resolution did not occur. It has meant that the matter has continued to litigation.
History of proceedings
These proceedings have reached hearing expeditiously.
The Initiating Application was filed 28 August 2013. It was returnable by way of first court event 15 October 2013. On the first court event, the parties attended a Child Dispute Conference and the Memorandum generated therefrom is part of the evidence before the Court.
On the first return date the parties entered into final orders by consent with respect to property adjustment. Interim parenting orders were made on a contested basis and the matter listed for trial.
I declined to appoint an Independent Children’s Lawyer or order a full Family Report. I then listed the matter for trial 6 and 7 March 2014. Many interruptions occurred during the trial and significant portions of time were lost. However, the matter was completed, at least as regards evidence, during those days and by extending court sitting hours. As a consequence of the disruptions however, written submissions were required and the parties have each, through their counsel, provided erudite submissions within the timeframe fixed. The husband’s submissions were received on or about 21 March 2014 and the mother’s on or about 4 April 2014.
This judgment is now delivered. The matter is thus concluded within eight months of the proceedings having been commenced and within five months of the first court event. That is entirely appropriate and warranted.
This is a young child whose arrangements for practicing a relationship with each parent were incredibly unclear and undecided when the proceedings were commenced. At his age it is important that the Court give as expeditious a consideration to the matter, on both an interim and final basis, as is possible. I am heartened that it has been possible in this case, whereas in others, pressures of workload preclude it.
Material considered
In dealing with these proceedings I have read each of the documents identified by the parties.
In the case of the father I have read:
a)His Initiating Application filed 28 August 2013;
b)His Affidavit sworn or affirmed 14 February 2014 and filed the same date;
c)An Affidavit by the paternal grandmother, Ms C, sworn or affirmed 7 February 2014, filed 14 February 2014;
d)The father’s case outline document; and
e)Final submissions in written form.
In the mother’s case I have read and considered each of the documents identified, comprising:
a)An Amended Response filed 14 February 2014;
b)An Affidavit of evidence‑in‑chief by the mother sworn or affirmed 14 February 2014 and filed the same date;
c)An Affidavit of the maternal grandmother, Ms E sworn or affirmed 13 February 2014 and filed 14 February 2014;
d)A Notice of Abuse, Family Violence or Risk of Family Violence (Form 4) filed 14 February 2014;
e)A case outline document; and
f)Written submissions as identified above.
I have also read and considered the Child Dispute Conference Memorandum dated 15 October 2013 (exhibit A).
A number of documents have been tendered in evidence comprising, to the extent that it is relevant for the purpose of these proceedings:
a)A number of photographs printed from Facebook, exhibit M2;
b)A number of entries from records of (omitted) Medical Centre relating to the father, exhibit M3; and
c)A report from Ms G Speech Pathologist, exhibit M4.
Whilst there is no Family Report, I am satisfied that this does not create any difficulty in the proceedings being heard and determined.
Past time arrangements
It is common ground between the parties that the time arrangements with respect to young X and his father, prior to the commencement of the proceedings, were infrequent and intermittent. That time largely, if not entirely, occurred in the presence of the mother or other maternal family members.
Since the proceedings commenced time has occurred by and large in accordance with interim orders made on the first return date of the proceedings. Those arrangements built up over a period of time commencing with a period each Sunday from 9am until 1pm, thereafter 9am until 3pm and, ultimately, commencing early 2014, each Sunday from 9am until 5pm. Provision was also made for a period of time on Christmas Day which has been the subject of controversy in the evidence of the parties.
Issues raised by the Child Dispute Conference Memorandum
The Child Dispute Conference Memorandum eruditely identified a number of issues in dispute between the parties. Based upon a consideration of the issues as raised therein, the determination was made by reference to section 60I(10) of the Act, that no further Family Dispute Resolution would be required.
The mother raised a number of safety concerns regarding the father’s home which were particularised as:
a)Consumption of alcohol by family members;
b)Concern with respect to a dog in the household suggested to have bitten people in the past; together with
c)General criticisms particularised in the mother’s evidence as filed with respect to both family violence and what might be best described within the mother’s case as parental incapacity of the father.
The Memorandum under the heading “Issues Impeding Resolution”, clearly stated the fundamental issue impeding resolution as “the mother’s lack of trust regarding the father’s ability to parent the child effectively and keep the child safe.”
Young X, regrettably, suffers from a number of food allergies. X also has a delay in development of expressive speech, hence his participation in speech pathology, although that is an activity that his mother has arranged and attended with him solely.
The food allergies have been described varyingly throughout the proceedings as allergies or disabilities. I am not satisfied that they could be properly or appropriately described as a “disability”.
The parties
As regards the issues identified in the Child Dispute Conference Memorandum, what is clear and what became clearer, following the parties’ cross-examination and after a consideration of their evidence in full, is that Ms Brickley can be fairly described, without it in any way being a criticism of her, as an over-anxious mother. That is, no doubt, fed and fuelled to some extent by what can, again, be fairly described as regards Mr Brickley, as a degree of immaturity on his part. He has recently turned 30. Indeed, that is the subject of controversy as he was scheduled to spend time with the child on the day of his birthday but chose not to and instead participated rather in celebrations for his birthday.
Mr Brickley also has a mild intellectual disability. There is no evidence before the Court to suggest or demonstrate the extent to which that impacts upon Mr Brickley’s life or functioning, although Mr Brickley clearly is able to hold down employment. It ultimately is neither a criticism of Mr Brickley nor relevant.
The mother’s case raises concerns as to the father’s capacity, based both on his apparent and demonstrated immaturity, as well as his mild intellectual disability. I am not satisfied that the latter could or should properly be categorised as a basis upon which incapacity could be founded. It is a reality, however I am loath, and certainly the evidence would not permit it, to be critical of Mr Brickley’s parenting capacity, attitude or any other aspect of his parenting on the basis of his disability. Indeed, I am satisfied it would be entirely inappropriate.
Mr Brickley also has difficulty with reading and writing. I do not raise that to embarrass him. His literacy skills are far from developed. Accordingly, he has significantly and from time-to-time obtained the assistance of his mother in reading and responding to entries within a communication book that the parties have come to use in practising their communication with each other.
One of the significant issues that is clear from the evidence and which I accept can be fairly described from both parties’ perspectives, relates to the father’s involvement with young X’s care prior to the parties’ separation.
The father suggests by his evidence that he was largely precluded from participating not encouraged or other impediments put in his way as regards participating in X’s care. This included having X sleeping in the same room as his mother and the father sleeping in a separate room, the father not being permitted to engage in the child’s feeding, bathing or other activities.
To the extent that this is the father’s evidence, I accept that it is his genuine perception. Whether it is based in reality or not is more difficult to discern but I accept that he genuinely perceives and felt and still feels restricted and excluded pre and post-separation from engaging in a full and active range of parenting of young X.
For the mother’s part, her perspective is entirely different, indeed, diametrically opposed. She expresses that the father has, from X’s birth, had little interest let alone insight, into what is required for his care and little interest undertaking or participating in that care. I, again, accept that this is an entirely genuine perception as expressed by her. The evidence makes clear and Mr Brickley concedes clearly that Ms Brickley is an intelligent young woman, a very committed mother to young X and somewhat forceful in her approach towards him, his care and protection.
I am satisfied that the perception of each of these parents, in all probability, has some basis in reality and beyond it simply being that which they perceive. There may also, in the case of Mr Brickley, be a willing desire to acquiesce, i.e., when he offers to assist and has been told by Ms Brickley that his help is not needed, he has been more than happy to take that rejection of his offer of assistance on its face and thus not offer again.
However, the perceptions they have each developed are largely based upon their views and perspectives of each other. Mr Brickley, for his part, as well his mother, readily concede that Ms Brickley is, save their criticisms as to Ms Brickley’s suggested attitude towards the father’s involvement with the child (and that of the paternal family for that matter), an excellent mother. Indeed, she is. Any criticism of the care that she provides for young X would be disingenuous and false.
For her part however, Ms Brickley does not make that same concession with respect to Mr Brickley. Her evidence suggests that she fundamentally questions and doubts Mr Brickley’s capacity as a functioning member of society let alone as a parent. To that end, what is clear from the evidence, and I am so satisfied is that the attitudes each parent has of the other are somewhat self-perpetuating.
The mother was more than happy to take on and discharge all elements of X’s care during the marriage of these parties and did so well and continues to do so well.
Mr Brickley, for his part, was more than happy to acquiesce in that regard, although suggesting and expressing, and I accept genuinely so, that he desires, at least now, to be more actively involved and to learn to undertake tasks which he has not previously undertaken and thus not learnt how to undertake. Whilst Mr Brickley perceives and expresses that he was not been allowed to participate, his active pursuit of participation, once initial rejection was offered, was far from resplendent or complete. Ms Brickley, for her part, would be more than happy to reject those offers of assistance, not believing Mr Brickley to be competent or interested in X’s care and wellbeing and thereafter perceiving, once he has been told his help is not needed, his lack of participation as proof positive of that lack of interest and of lack of capacity.
Chronology of events
I do not propose to canvas each and every event alleged by the parties. I will endeavour to highlight those of significance.
(omitted) 1983, the mother is born. She is presently 30 years of age and will soon turn 31.
(omitted) 1984, the father is born. He has recently turned 30.
(omitted) 2007, the parties meet and commence dating.
(omitted) 2007, the parties commenced to cohabit with each other.
(omitted) 2011, the parties are married at (omitted).
(omitted) 2011, X is born. As indicated, he is now 29 months of age.
In February 2013, the father consulted with his doctors with respect to concerns that he had with respect to both sleep difficulties and significantly low mood, what has been described in the evidence as depression, although nothing from the material would appear to indicate that anyone has ever provided an appropriate clinical diagnosis of that disorder.
29 October 2012, Ms Brickley returns to paid employment working two days per week having taken a 12 month period of maternity leave prior thereto.
15 April 2013, the parties separate on a final basis.
May 2013, the mother alleges an agreement is made between the parents that Mr Brickley would spend time with X each alternate Saturday between 2pm and 4pm, that time to occur at either a park proximate to her home or at a McDonald’s or play centre and in her presence and supervision.
18 May 2013, the father spends time with X for a brief period of about half an hour. This is the first time he has spent with X since the parties separated approximately a month earlier. The mother’s evidence suggests that the period had been arranged to occur at a local park with her presence and supervision and was to last for two hours but the father left far earlier than that and for reasons unconnected with her.
8 July 2013, the section 60I certificate is issued.
13 July 2013, the mother alleges that the father pushed X towards her, having held his hand forcefully and more tightly than necessary, and as a consequence of his being frustrated with X. As a consequence of being pushed towards her, it is suggested that X fell to the ground and was distressed and crying. The father denies that allegation.
The parties’ proposals
Set within the context of the above chronology and the parties having arrived at this hearing quite quickly, the mother’s proposals are as set out in exhibit M1, the Minute of Orders tendered by her counsel at the conclusion of the evidence.
The mother proposes that X spend daytime periods with the father up and until he commences school, presumably in 2017, he turning five the (omitted) prior thereto.
I say “presumably” as it may be, in light of the difficulties with expressive language that X clearly struggles with, that he may be held back and may commence school either mid-year or the following year. That is unclear and cannot be clear at this point in time. There are many events which will need to be traversed before that determination can be made and that will be a decision for these parents, not the Court.
The father, for his part, seeks orders in accordance with his application. That would see a fairly rapid transition, indeed, immediate transition, from the present periods of each Sunday to alternate weekend overnight time.
The father’s counsel in closing submissions and on the father’s instructions, indicated that whilst that is the relief sought by him in his application, that he would be prepared and would see the wisdom of a more gradual movement towards alternate weekend overnight time than that which his application seeks.
I do not criticise the father for that change of position between the commencement of the case and final submissions. Indeed, it is a sensible and appropriate position for him to adopt in light of the evidence and, no doubt, his having been provided with advice which he has reflected upon and accepted. Thus it could not be a criticism but, indeed, an instance of some insight by the father notwithstanding the mother’s concerns he possesses none and is unlikely to.
Notice of abuse and allegations of risk
I propose to briefly deal with the Form 4 filed in the proceedings by the mother, particularly as it suggests both family violence and abuse. Those matters are fundamental to the Court’s determination of any parenting proceedings. Those issues are fundamental to a determination of whether Family Dispute Resolution is appropriate prior to or during proceedings.
The Form 4 alleges two incidents of abuse. It suggests, firstly, the occasion that has been referred to in the chronology as occurring on 13 July 2013 when the mother suggests that the father was physically abusive towards X, pushing the child towards the mother and the child falling to the ground. That is otherwise addressed in the mother’s affidavit material also.
The second allegation is that on 10 November 2013, the child returned to the mother’s care with a bruise on his bottom. That is addressed in the mother’s affidavit material as well as in annexure U thereto being a photograph of the child’s bottom suggested to show a bruise. The father denies the first and the second was not put to him during cross-examination other than in general terms regarding bruising.
The bruising complained of was put to the mother in the same general terms and concessions made by each that the child at his age and playing has a propensity to fall, particularly onto his bottom, and that he may well have had a bruise innocently.
As regards the bruise, I am not satisfied that it is or could be appropriately described as abuse. There is no evidence to suggest that it was caused through other than play.
In relation to the suggested pushing of the child, I am concerned that:
a)It is denied by the father and I am in no position to make a finding of fact with respect to it; but
b)I am not satisfied that it would fall within the definition of abuse in any event, even if a finding could be made.
On that basis, I am satisfied that I need not making a finding.
The events as described could not possibly fall within the section 4 definition of abuse, save to the extent that it is suggested as an assault. I am not satisfied, as indicated, that it could be so described or that the evidence permits a finding that the event occurred.
As regards family violence, the mother’s evidence both to the Family Consultant and in paragraphs 81 and 84 of her Affidavit suggest two events.
The first is a suggestion that the father threw a mobile phone at the mother on 2 January 2013 while she was sitting and breastfeeding the child and that the phone landed at or about her feet.
Secondly, the mother makes an allegation in the following terms:
… the mother alleges the father has “yelled and verbally abused her in the child’s presence.” To the extent that that is taken up in the child dispute conference memo, the father’s evidence with respect to it could well be taken from his answers during cross-examination as a concession or admission.
I am not satisfied that the father’s response in cross-examination (that he accepts that the statement was made to the Family Consultant and that he conceded that he had yelled at the mother), is necessarily an admission of family violence.
By reference to the definition of “family violence” in section 4AB of the Act, which I incorporate herein, certainly something well short of physical assault is required to establish the existence of family violence. The definition is descriptive and illustrative, rather than specific, and incorporates both objective and subjective elements as follows:
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Whilst I am not satisfied that the two events specified in the Form 4 would necessarily and of themselves establish family violence, I am concerned and, based upon the father’s evidence, find that family violence within that definition has occurred. That finding is made as it was put to Mr Brickley that when the Child Dispute Conference Memorandum referred to “family violence, mainly verbal”, that it was accurate. Mr Brickley agreed that it was.
Without intending to be at all pejorative, Mr Brickley is a far from a sophisticated litigant and thus I am not satisfied that it would be safe to take that evidence as an admission. That is particularly so when Mr Brickley otherwise makes clear that there were verbal altercations between he and Ms Brickley involving both of them yelling at each other. However, the other portions of Ms Brickley’s evidence and Mr Brickley’s concessions, I am satisfied, would establish family violence although clearly, never physical violence nor a pattern of violence.
The finding is made as Mr Brickley was clear that on occasions when he has yelled at the mother, (whether it has been he alone yelling or the parties yelling at each other), that he understood that she was fearful of him. He indicated there has never been physical violence by him towards the mother or anyone. However, he was aware that she felt intimidated and scared of him when he yelled. To that extent, clearly, that would make out the allegation based upon his concessions, fairly and appropriately made, rather than reliance upon the Form 4.
Concern was raised in submissions on behalf of Mr Brickley that the Form 4 came into being late in the piece. Whilst Ms Brickley’s earlier affidavit, that filed in accordance with the Federal Circuit Court Rules 2001 and required to be filed sufficient to identify issues in dispute between the parties, may or may not have made reference to the same evidence, the Form 4 should clearly have been filed. Although, I am satisfied by a consideration of the specific allegations raised that family violence and abuse are not made out by that alleged within the Form 4 alone.
The risk of abuse alleged by the Form 4 relates to matters which clearly do not and could not fall within the definition of abuse. The allegations may amount to neglect. Certainly, the definition of abuse includes behaviours which cause or are likely to cause significant psychological harm to a child as a consequence of abuse. That alleged falls far short of that standard. It is suggested, for instance, that the father is unable to administer first aid to the child if required. Certainly one such example is suggested in the evidence when the father contacted the maternal grandmother to provide assistance. It is suggested that the father negligently applied an ointment to the child’s lips which “could have been poisonousness” (sic). I am, again, not satisfied that could satisfy the definition.
A particularly curious aspect of the evidence, almost like a parody of the television program “Wilfred”, is the suggestion that the father “displayed sexually inappropriate behaviour towards a child’s teddy bear.” That is the subject of the exhibit M2, which depicts Mr Brickley in various actions – thankfully fully clothed – which are suggestive of engaging in anal intercourse with the teddy bear, touching the teddy bear where a real bear’s genitals would be and what might be described as “pashing” the teddy bear. However, there is no suggestion that the child is ever aware of those events, was present or in any way has been exposed to those behaviours, childish as they may be. I am satisfied that whilst they are childish, they could not possibly be described as a risk of abuse.
The mother alleges that “the father has mental health issues and suicidal ideation and the child is at risk of physical and/or psychological abuse.” That allegation would not appear to have been taken further in the mother’s case and thankfully so, as it again falls well short of the standard required to make out an allegation of abuse or risk of abuse by reference to Johnson & Page [2007] FamCA 1235 and similar authorities and is, in its form, inadmissible and lacking any probative value.
The evidence with respect to the “father’s mental health”, as it is described in the mother’s case, is confined to his mild intellectual disability which is most assuredly not a mental illness or disorder, together with the suggested diagnosis of depression which is suggested to have occurred at some point or points in the past and shortly prior to the parties’ separation.
During cross-examination both the father and paternal grandmother conceded that the father had been “depressed” at and about the separation of the parties and that the father had talked to his doctor about “being down”.
The father indicated that whilst he was “feeling down” shortly prior to the parties’ separation that he also felt particularly angry. The mother suggests that may have been as a consequence of his using dexamphetamine. That medication was prescribed for him by his doctor to deal with sleeping issues. The father conceded that when he was angry that the mother was most assuredly scared of him.
There is nothing to suggest any diagnosis of a mental illness or disorder at any time and it would certainly appear that the father’s “depression” if appropriately labelled, by reference to both his evidence and that available through the exhibits, was reactionary, was addressed and that the father demonstrated some insight into it and has taken appropriate action to address it. That is certainly corroborated by the paternal grandmother’s evidence.
The reference to “suicidal ideation” would appear to involve one occasion when the father, he suggests in frustration and that is certainly entirely consistent with his evidence, had indicated to the mother within the context of disputes between them regarding the child that he “might as well kill himself.” There is no suggestion that he was serious nor was it acted upon. The mother concedes in her evidence that she did not take it as a genuine threat of suicide and certainly no action was taken by him to act or suggest that he would act upon it.
Within the evidence there are significant disputes about many matters, very few of which are of significance and very few of which are relevant to the child’s wellbeing.
A significant period of cross-examination was devoted to the colour purple (an issue of the child being dressed in clothes that are purple rather than the Alice Walker novel). It is one of the more curious issues to have arisen in this or any other case but, clearly, it has caused significant anguish for the parties or at least for the father.
The father suggested that he has always “hated” the colour purple. One can presume the father has never bought X a Tinky Winky Teletubby doll.
The father complains and is critical of the mother both with respect to the child wearing the colour purple and the child wearing T-shirts with slogans such as “I love my mummy.” The father complains that the mother was deliberately taunting him by dressing the child in such colours or in such slogan-adorned T-shirts.
What is clear is that when the matter was raised by the father with the mother, although one would think for young X there are many more significant issues to be raised with respect to his welfare that the mother desisted in sending him in such clothes.
Clothing has been a particular issue as X has skin allergies and sensitivities. Accordingly, the mother has requested that he wear only the clothes that he is sent in as they are washed in detergents that she is aware will not affect this child’s sensitivities. That would appear, again, to be an issue that the parties have eventually been able to resolve between themselves.
The Facebook postings of the father’s suggesting sexual engagement with the teddy bear were also the subject of curious cross-examination. However, I am satisfied that the most that can be made of it, as already indicated, is perhaps “childish exuberance” and misplaced comedic intent albeit by a 30 year old.
Issue arose with respect to the father’s time with young X on Christmas Day 2013. The period of time that X was to be with the father was from 1pm until 6pm. The parties are agreed that X generally sleeps between 1pm and 4pm. X had no doubt been up early, on Christmas Day, excited and engaged with his mother and maternal family. He was then collected by the father.
Criticisms are raised of the father on a number of levels. Firstly, the father when collecting X was accompanied by his present partner or girlfriend. The father and his girlfriend do not reside together full-time but Mr Brickley suggests, even though she is not a witness in the proceedings, that it is a relationship of an enduring nature between he and her.
The father’s person of interest, if she might be so described, resides on the (omitted), has a child of her own (whom it would seem is diagnosed with, or some concern is raised as having been diagnosed with cerebral palsy). Whether the child has or has not, I fail to see the relevance of the diagnosis.
If the child has a condition or disorder which affects their functioning, there is no basis to assume that it is in any fashion relevant to the care of X, if that child is present on any basis, whether relating to the time and care that the child needs or otherwise. There are a great many people within the community with cerebral palsy and other conditions and disorders who function perfectly well and make important contributions to society. I have no reason to doubt that this will be the case for this particular child and thus I am not concerned whatsoever regarding that issue.
The mother’s criticism regarding Christmas Day is directed at the father bringing his girlfriend or partner with him to the mother’s home to collect the child, being it would seem, the first occasion this has occurred and occurring on Christmas Day. The girlfriend’s presence is suggested to create some distress and upset for the mother. I can understand that may have been so.
Secondly, and perhaps more importantly however the father’s behaviour towards the child on Christmas Day is the cause of suggested concern and criticism.
The father’s evidence is clear that the child, not having had a sleep and being somewhat excited and wound up, was then incredibly upset and difficult to manage and would not settle for him. When asked about that issue, the father indicated that he believed that because the child had been up at 6am and had not slept and that “…this made the time hard, the child was very upset and unsettled.” The father indicated he tried to put the child down for a sleep on two occasions but was not successful.
The father then indicated “I was getting upset that my Christmas was being ruined. I wasn’t happy that she had kept him awake.” That is so, notwithstanding the agreement between the parties as to when this child ordinarily sleeps and the order for time that had been sought.
It was asked fairly and squarely of Mr Brickley whether he believed that what occurred on Christmas Day, the child being upset and thus he being upset, was the mother’s fault and he indicated “she knows his sleep pattern. I understand its Christmas but it’s my time as well.”
I am asked to be highly critical of Mr Brickley for the “self-focused attitude” that he is suggested to have demonstrated in those answers.
I accept that both parties were upset by events on Christmas Day, the mother by the father bringing his partner and the father by the child being upset and the day not going as he may have desired. Some slightly greater insight into the behaviours the child was demonstrating would not have gone astray. However, I do not propose to be as critical as I am invited to be.
Significant issues are raised with respect to the child’s feeding. The child has a number of allergies. It is clear that some specific monitoring of the child’s food intake, both as to quantity and that consumed, is undertaken by his mother and appropriately so. She can then, in consultation with the child’s doctor, ensure that things are excluded that need to be and things are permitted which can be.
The father, when cross-examined about such matters, indicated that he often has trouble getting young X to eat for him. He made that statement quite clearly. He was otherwise clear when questioned on the issue that when he has such difficulties, he perceives that this may have some connection with the fact that during the relationship, “I was never allowed to feed him.” There may be some basis to that, although I am not critical of Ms Brickley for it. However, if Mr Brickley has never had the opportunity and experience of engaging with a child, this being the first child for each of the parents, it is difficult for him to learn.
The aggravations that occur between the parties, particularly through that communicated or not communicated in the communication book as to the child’s food intake, clearly do not aid in assuaging Ms Brickley’s distrust of the father or his perceived incapacity.
Another significant issue arose from the suggested inability of the father to properly supervise the child. That relates particularly to an event when it is suggested X had fallen over whilst in the father’s care and bumped his face, particularly his nose, and Ms Brickley alleges was not properly treated. When that was put to the father he indicated frankly and candidly that the child had been playing in the backyard and whilst the suggested aetiology of the fall and injury was tripping on a step whilst unsupervised, the father indicated that the family dog, the subject of some discussion in the evidence, had brushed against the child, he had lost his balance and fallen over.
Whichever has occurred the event is far from life-threatening for this child. I accept the child returning with an injury to his face was upsetting for Ms Brickley. X certainly experienced an injury. It was photographed and attached to the mother’s evidence. However, the fall would appear to have been far from significant and addressed appropriately by Mr Brickley and/or other family members at or immediately following the injury.
A second issue arose with respect to the child having come to the father when ill and having returned with a significant temperature which required the mother to obtain medical treatment. Both the father and his mother indicated that they had taken the child’s temperature, they had written a note, (the paternal grandmother at least) in the communication book, explaining what they had done and what had occurred and they were of the belief that nothing that had been done by them that was out of the ordinary.
What is missing from the father’s evidence, and which he could not know is the fact that the mother was concerned by the child’s temperature when returned. I am not satisfied that I can slate home to Mr Brickley culpability for either the child’s temperature or an absence of appropriate treatment by him when he was aware that the child was sick. He indicates that the child had been sick all day, it was a very hot day and whilst he conceded that the measurements taken by he and his mother may not have been accurate for whatever reason, he had certainly been diligent in attending to the child. I am not satisfied that I can or should draw from that incident an inference of incapacity on the father’s part.
In relation to Easter, there is again a criticism of the father for not taking up all of the time which had been made available to him. However, I do not accept that this would demonstrate, by and of itself, a lack of interest or desire by the father to spend time with the child. It is, in all probability, reflective of the relative lack of emotional intelligence of the father.
In relation to the father’s capacity and Ms Brickley’s attitude towards it, as was highlighted in submissions by Mr Brickley’s counsel during cross-examination, Ms Brickley was given the opportunity in broad and general terms to make a positive statement regarding Mr Brickley. She was asked, “Is there anything good you have to say about his capacity as a parent?” Her ready response was “no”. When asked whether she saw any benefits to X of spending time with his father, the response was “yes”. When Ms Brickley was pressed to particularise those benefits, they were confined to “…it being in the child’s best interests to know who his father is and to have a knowledge of both parents”. That is not a particularly fulsome acceptance of benefit to X. Such an attitude would suggest Ms Brickley’s support is limited to what might be referred to in other jurisdictions as “identity contact”.
Overall, the evidence leaves me in a position whereby Ms Brickley asserts that the parties cannot communicate, that they cannot agree or resolve difficulties and thus an order for sole parental responsibility should be made in her favour. Added to that and as spoken to by Ms Brickley during her cross-examination is her concern that sole parental responsibility should flow, not solely or even primarily based upon difficulties with communication which objectively looking at the communication that has occurred between these parties, is not that poor, but due to the father’s lack of capacity as a parent and thus his inability to have effective or appropriate input into decision-making.
It was suggested that the father does not care for the child, either practically or emotionally, and that the father’s decision making is poor. It was also suggested that all decisions had been made by the mother and they have all been good decisions and, on that basis, input from the father would not add anything to the quality of decision making.
There is some logic to that proposition and indeed it is based on a fundamentally accurate premise. Ms Brickley does make abundantly good decisions with respect to X, save and except perhaps, and as Mr Brickley invites the Court to criticise her for, when it comes to an acceptance of the importance of and actions taken within the parameters of case law such as Stevenson & Hughes (1993) FLC 92-363, to encourage, support and facilitate the child’s relationship with the father. It is difficult for the mother to do so, I accept, when she does have a genuine belief that the father is not capable of providing care to the standard she does. I accept he probably is not.
Ms Brickley’s capacity as a parent is excellent. Mr Brickley is capable but not as capable. Nor has he ever been given much chance to demonstrate or prove his capacity. Mr Brickley’s capacity is, at best, developing.
More importantly Ms Brickley does not believe the Mr Brickley has any capacity for improvement. To the extent that Ms Brickley has concerns for the child’s safety whilst in Mr Brickley’s care I am satisfied, on the objective evidence available, that those concerns are ill-founded.
The final issue that thus arises is whether time between X and his father should become overnight at any time before this little boy commences school which will be not before 2017.
I have not canvassed each and every portion of the evidence and do not propose to do so. I will refer to some portions of it, either as canvassed above or in the discussion of the legislative pathway, but I am content to make clear that all of the evidence of the parties, both within the documents and exhibits and arising from their cross-examination has been considered.
Social Science
Before leaving the evidence there is one final point I am obliged to make.
Annexed to the mother’s material is a report by a social scientist. It is referred to by paragraph 82 as forming part of the basis upon which the mother’s proposals are framed and the report itself is annexure Q to the affidavit. It is a report by a well-known and prominent Australian social scientist Dr McIntosh.
Beyond the mother’s evidence that the report and its consideration has contributed to the mother’s views and position in these proceedings the material is not properly introduced and is not admissible in its form.
It is not this Court’s role to enter into controversy between social scientists. However, I am aware of controversy within social science. I am conscious that the report that the mother seeks to introduce is one of many thousands, if not hundreds of thousands, of reports produced in the last 20 to 30 years studying children of separated parents including children of this particular age group. Other authors such as Warshak, Nielsen, Lamb et al express different views. Many concur with those of Dr McIntosh.
I do not suggest for one moment that I do not respect or value the contribution to social science made by each of these authors. However, the material that is annexed is not referenced or addressed for any purpose other than to suggest the basis upon which the mother’s proposals are framed, i.e. she has relied upon that social science.
The social science referred to is not properly before me. It is extraneous material. It has not been put to the parties. It has not been put to or commented upon by anyone qualified to do so and especially not so as regards its possible application to these parties and this child. Thus, I have no regard to it save to accept that it is one of the pieces of information that Ms Brickley has taken into account in formulating her position.
With the maelstrom of controversy regarding social science in this particular area (i.e. that which is appropriate for children of this age group or children under four or preschool age generally), the Court would be loath to place any reliance upon any social science without all such social science being taken into account. It is difficult to understand how the Court could.
As was opined by Bryant CJ, in a paper delivered by her to the Australian Judicial Colloquium[1] and relating specifically to issues such as this, that for the court to pluck one piece of social science from the library of material and place reliance upon it is simply to proceed on the basis (assuming the evidence is properly before the court, which in this case it is not), of preferring one social scientist and ignoring all others. The court is in no position to do so and will not.
[1] The use of extrinsic materials—with particular reference to social science and family law decision making (6 October 2012).
The report cannot be taken into account by reference to section 144 of the Evidence Act 1995. There is no basis upon which I could accept that it is non-controversial or without contradictor.
Legislative Pathway
I turn now to the legislative pathway.
I am obliged to commence with the objects and principles in section 60B of the Act which I incorporate herein:
(1) The objects of this Part are to ensure that the best interests of
childrenare 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).
The objects require that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their interests.
The Court must also be cautious to ensure that children are protected from physical or psychological harm arising through exposure to abuse, neglect or family violence, that children receive adequate and proper parenting and that parents fulfil their duties.
In this case all four elements of the objects are in play.
Clearly, on the evidence available, and indeed on Ms Brickley’s evidence alone, there is a benefit to young X of having a meaningful involvement with both of his parents. Perhaps the deficiency from Ms Brickley’s evidence is that the involvement she proposes is not necessarily meaningful, but she most assuredly proposes an involvement by Mr Brickley.
It is suggested that X requires protection. I am not satisfied, for the reasons above, that he does.
I must ensure that X receives adequate and proper parenting. Ms Brickley suggests that this cannot occur in the father’s household and especially so if the child were attending overnight. The mother indicates that when the child is older, when his expressive speech has developed more and when the father has, through many years of experience in daytime visits with the child, developed adequate skills to move him beyond his present immaturity, that then and only then overnight time would have a benefit to the child and with some reasonable assurance that his parenting will be provided to an adequate and proper standard.
As regards the fulfilment of duties, the only criticism raised by the evidence is a complaint by Ms Brickley that Mr Brickley is less than regular and efficient in meeting his child support obligations. However, by the conclusion of cross-examination, it was conceded by Ms Brickley that Mr Brickley’s payments, by direct withholding from his salary, are indeed regular and efficient and any tardiness arises from accounting by the Child Support Agency in payment out to the mother.
I must also consider the principles which underlie the objects.
The principles commence with the caveat that, except when it is or would be contrary to a child’s best interests, the court should ensure that the child’s rights are met. The principles include a right to know and to be cared for by both parents and a right to spend time on a regular basis and communicate on a regular basis with both parents.
Each parent proposes regular communication and time. It is a matter of substantial difference as to quantity as well as frequency. It is to be noted that each party proposes that once overnight time is occurring on an abundant full weekend basis, that time would be each alternate weekend. I note that the order that is operating at present and on an interim basis provides for regular day only and weekly time.
Whilst the parties have not put any specific proposal with respect to a continuation of that arrangement for any period, I note that Mr Brickley’s counsel has submitted that a gradual movement towards the introduction of overnight time would be acceded to by Mr Brickley.
I am satisfied that if I were to make orders that, for some time continued weekly day only time, prior to the introduction of overnight time, that the parties have each had due process afforded to them as regards such an arrangement. Neither could suggest that they were unaware that it was possible or could be contemplated as it is the very arrangement they are presently practicing, pursuant to orders made by the Court.
Young X has a right to have his parents share duties and responsibilities for his care as well as to agree about his future parenting. There is no issue of significance raised as regards the child’s culture, unless one were to include, within the definition of culture (which I am satisfied should not be so included, but for present purposes, can be considered at least as analogous), the practice of faith and religion.
Ms Brickley is of the (religion omitted) faith. Mr Brickley’s faith or spirituality is not known, but clearly he is not of that church. It is on that basis that Ms Brickley seeks specific orders with respect to events such as Easter and Christmas, to allow her to continue to practice with her family the events significant to their faith and their religious observance.
As regards those rights it is to be noted that they are X’s rights. He has a right as regards each of his parents and both of his parents at the same time, to the extent that X’s time or involvement with one parent impacts upon his time or involvement with the other. That is something which is unavoidable unless the parties desire to reconcile and live together.
It has been noted since the 1980’s that any order for time, then access or contact, is a necessary interference and an appropriate and worthwhile one in the arrangements of each parent’s household and the child’s relationships.
Section 60CA of the Act reminds the court that in all that is done the child’s best interests are of paramount consideration.
I must then turn to section 61DA and determine whether the presumption of equal shared parental responsibility applies. I am satisfied, on the basis of the finding that I have made, largely by reference to Mr Brickley’s frank, candid and appropriate concessions during cross-examination, that family violence has occurred and thus the presumption cannot apply. The wording of the section, whether it is intended by Parliament or otherwise, is clear and specific that I need only find that family violence has occurred.
Section 61DA provides that the presumption does not apply if there are “reasonable grounds to believe” that a parent has engaged in family violence. It could be one historical event of family violence and then the presumption does not apply. However, whether the presumption applies or otherwise does not impact upon the court’s exercise of discretion in allocating parental responsibility, i.e. if the presumption applies, an order for sole parental responsibility or joint and several parental responsibility pursuant to section 61C of the Act can still be made and, conversely, if the presumption does not apply an order for equal shared parental responsibility can still be made.
It is observed by the High Court that an interference in a parent’s right to participate in decision making for their child (i.e. to be deprived of a share in parental responsibility), is a serious and significant step that should not be taken lightly and only taken when the evidence compels it.
For reasons that I will explore, I do not propose to take that step. There is no basis by which these parties cannot, albeit with imperfect but far from toxic communication, continue to enjoy and engage in equal shared parental responsibility.
If the presumption does not apply, I am not mandated to consider equal or substantial and significant time before considering any other time arrangement. However, if the presumption does not apply I am not precluded from considering those arrangements. I am simply not mandated to do so in any particular order. I propose to consider all time arrangements at large by reference to consideration of section 60CC of the Act.
Primary considerations
Turning thereto, I commence with the primary considerations being:
a)The benefit to the child of a meaningful relationship with both parents; and
b)The need to protect the child from physical and psychological harm.
Section 60CC(2A) prioritises the latter over the former.
As I have already indicated, I am not satisfied that there is, based upon the evidence in this case, a need to protect X from physical or psychological harm through exposure to abuse, neglect or family violence by, perpetrated by or in the household of either party. Thus I am left to consider the benefit to X of having a meaningful relationship with both of his parents.
For the relationship to be meaningful as discussed in Mazorski & Albright [2007] FamCA 520 and myriad cases since, there must be an active involvement of a parent in parenting; shifting from the noun to the verb.
A proposal that sees Mr Brickley spending time with X on a day only basis and on a weekend day at that could not be supportive of the development of a meaningful relationship between X and his father. That must be set against reasonable practicality and, particularly, reasonable practicality as conceded by these parents and, in particular, Mr Brickley.
During his evidence Mr Brickley made clear that he has not attended doctors or speech pathology appointments relating to young X’s allergies or delay in developing expressive speech as those appointments occur during the week. Mr Brickley asserts that he has work commitments and cannot attend. That is not an attitude that should continue or endure.
If Mr Brickley genuinely desires a meaningful relationship with his child and to participate in his child’s life, he must give full meaning to the practical expression of parental responsibility, i.e. X’s needs come first. If that means, subject to the attitude of his employer, that he needs to take time off work during the week to attend appointments, and I propose to make at least one order that will compel him to do so, then so be it. It is what parental responsibility is about. It is not abandoning responsibility when convenient or impractical for a parent, but ensuring that the impracticality is addressed so that he can participate.
To develop a meaningful relationship X will need to be parented by his father. There are deficiencies at the moment. I am satisfied the primary deficiency comes through Mr Brickley’s lack of emotional intelligence and relative immaturity. Mr Brickley, as I have indicated, was far too willing to accept rebuttal of offers of assistance in parenting X whilst the parties were together, as meaning that he need not offer again. He must develop skills. Whilst I am asked to be doubtful as to the insight of Mr Brickley in that regard, there are glimmers from his evidence that suggest that I need not be so negative or pessimistic.
Mr Brickley repeatedly through his cross-examination asserted his desire to learn how to do things on his own. For instance, when he was criticised for not contacting the mother when the child would not settle at Christmas, he indicated that he desired to keep trying himself, even though ultimately it took him some little time before he was effective, because he realised he needs to and in fact desires to do these things himself. On a number of occasions similar statements were made, particularly to the effect that he simply wishes to be part of X’s life and be a father to him.
An arrangement whereby X continues, for another three to four years, to spend day only time on weekends with his father will not give him a meaningful relationship or make Mr Brickley a parent. It will make him a play thing or a distraction. X will be aware of whom his father is, but he will not develop the depth of relationship with his father that a meaningful relationship speaks of, as his father will never have “parented” him or been a real father. He will have been a father in name but not deed.
I am not satisfied that the perceived and genuinely perceived incapacities of Mr Brickley have objective basis. Mr Brickley certainly could be better at being a parent. But he is a first time parent, he is somewhat immature and he will learn how to do the job through doing it with a gradual build-up of time so that X can get used to things and, importantly, Mr Brickley can through necessity learn.
I am satisfied that X’s right to a meaningful relationship with his father and that the primary consideration would be better met by more extended time than Ms Brickley proposes.
I turn to the additional considerations.
Views
X is a very young child with very little expressive speech. He has not expressed any view and indeed, if expressed, it would be far from dispositive or determinative.
Nature of the child’s relationship with each parent and other persons
Ms Brickley’s evidence is resplendent, appropriately so, with the assertion that she is and has always been X’s “primary care parent”. One cannot doubt that.
As I have already indicated, Ms Brickley’s parenting of X is excellent. However, notwithstanding the strength of the relationship and attachment between X and his mother, he also has a developing relationship with his father. That relationship is of importance to X, indeed equal importance. It will never outshine X’s relationship with the mother.
It will never be as deep or profound or, for that matter, as meaningful but it is an important relationship for X’s development, his sense of self and his sense of place.
The relationship between X and his father is presently developing. It will become stronger provided it is encouraged, not only through the parents and each of them, but through practice. Accordingly, Mr Brickley needs time to develop that relationship, both spread over a chronological space as well as portions of time and different types of time. The arrangement needs to develop to a point where X is dependent upon his father for care whilst with his father, not others, and not by returning to the mother.
That means the father having an ability to participate in the range of activities with X that are set out clearly in section 65DAA(3) of the Act. Whilst they cannot be presently fully met through practical considerations they can at least be attempted. Things such as being fed, bathed, dressed, put to bed, gotten up and the routine recommenced. Mr Brickley needs to participate in these activities if he is to parent and if the relationship is to become meaningful.
Section 65DAA(3) requires that an order, for it to be fairly within the descriptor “substantial and significant time”, include time that allows a parent to be involved in the child’s daily routine. Mr Brickley does not presently, and on the mother’s proposal, will not for quite some years, have that opportunity, thus X will not have expression given to that right.
I am satisfied that whilst gradual, a far more rapid movement towards overnight time than proposed by Ms Brickley is warranted and in X’s best interest.
The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spending time with and communicating with the child
Criticisms are raised of Mr Brickley in relation to his acquiescence in decision making, his abandonment of a role as a parent as well as his not taking up time that has been available to him and on several occasions.
In relation to decision making, as I have already indicated, I am satisfied that the perception of each of these parents is genuine and has some validity.
There is some basis for Ms Brickley to perceive that Mr Brickley does not wish to be involved in decision making. However, there is also some real validity to the perception of Mr Brickley that his input is not welcomed. How it could be welcome in circumstances where it is suggested that he has nothing to offer, would clearly indicate that his views would not necessarily be sought or any input that he provided relied upon.
I am not satisfied that I could be critical of the father for failing to participate in decision making, save and except that to the extent that X clearly has delays in his speech and attends speech pathology twice a week during the week and additionally has food sensitivities and allergies, and Mr Brickley can and should have been more proactive in participating in those arrangements, such as attending upon the child’s doctor to be educated about them. What are the allergies? How should he deal with them? What can X eat or not eat? Is it important to regulate and record that which he eats? These are all matters of real dispute between these parents.
In relation to his speech pathology it is even more fundamentally important. It goes to the development of a meaningful relationship between X and his father. Mr Brickley should attend at the speech pathologist, not necessarily for every appointment, but certainly to speak with the speech pathologist, find out what is going on, learn exercises that he can engage in with X whilst he is in his care and then engage in them. That will add to the meaning of this child’s relationship with his father, it is part of parenting, it is part of parental responsibility.
I propose to make orders that compel that Mr Brickley do those very things. In relation to the missed periods of time I am satisfied that rather than reflecting disinterest they are reflective of immaturity.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Each parent has.
Likely effect of change including separation from either parent or any other child or person
What is fundamental is that any order that increases X’s time with the father will decrease X’s time with the mother. However, I am satisfied that is beneficial. That is not to suggest that removing X from the mother’s care is beneficial to him but in this circumstance X has the corresponding benefit that his right to a relationship with both parents is thus enshrined and developed.
The separations that X will have from his mother are brief. He is separated from her already two days a week when she attends to employment that is one day a week more than he spends with the father. There is no suggestion that this has in any way impacted upon the mother’s relationship with the child nor would it.
Whether that care is provided by day carers or by extended family members or both, clearly X can weather such separations. X’s time with his father is important. It is not presently as important as his time with his mother but important nevertheless, and his relationship with each parent is equally important. His relationship with his father cannot and will not develop unless his time increases and moves to more meaningful periods of time including overnight.
Practical difficulty and expense
I incorporate section 65DAA(5) herein:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parties presently live relatively close to each other.
The father proposes that as early as 2015 that he may move to the (omitted) where his girlfriend or partner lives. That is not certain and the father is criticised for not having perhaps thought it through as clearly and as fully as he might, particularly as regards the increased travel this would create for X.
The distance that would be created, even if that move occurs, is far from substantial. It would not render regular weekly time impracticable. It would certainly increase travel. It would be, instead of a fairly short car journey, a car journey of possibly up to an hour and a half. But that is far from significant. Indeed it can take that length of time to travel a short distance in Sydney.
Dealing with present and predictable future circumstances I am satisfied that any arrangement for either weekly or fortnightly time will not be rendered impractical at any foreseeable point through any foreseeable event.
The parents’ current and future capacity to implement an arrangement for equal and substantial and significant time, or at all, is demonstrated at least as regards weekly Sunday periods through their practice of that arrangement for some months, without either being unduly critical of or complaining about it.
I am satisfied weekly time can and should continue for some little time to give a further period for Mr Brickley to develop his parenting skills, X to continue to develop his relationship with his father and to feel safe, familiar and comfortable with him, and for Ms Brickley to have some further reassurance that X is and will continue to return, uninjured and safe.
After that period I am satisfied that a movement towards overnight time is appropriate. The mother has sought that this not be until X is five or preferably commences school, presumably shortly thereafter. I am satisfied that there is nothing that would preclude it occurring much earlier and I propose to introduce overnight time, at least for one night, from X’s third birthday. That will be an overnight visit only, commencing late on Saturday afternoon/evening and concluding on Sunday evening. That will get this young boy used to the pattern without a significant change in that which he will have become used to for over a year, i.e. being in his father’s care each Sunday.
I am conscious that it is an impost upon any parent for weekly time to occur on that basis, involving a weekend. However, that is offset against the realities that X is not presently attending school or day care or preschool on a fulltime basis and accordingly, in light of the mother’s work arrangements, there will still be abundant time for arrangements to occur outside of each and every weekend.
I propose to also make some provision to allow Ms Brickley to enjoy holidays with X and thus suspend time arrangements, subject to the missed time being made up, twice a year. However, I am satisfied that is the best arrangement which these parties could implement without significant difficulty.
In relation to travel, that will obviously then lead into an arrangement during 2015 when the father may move to the (omitted). The mother proposes that if that move occurs that the father would undertake all travel. I am satisfied that if the parents have equal shared parental responsibility that must have meaning in practice. Accordingly, I propose that the arrangement continue whereby each parent does one trip each. The father proposes the changeover at a midway point, the ubiquitous proposal of McDonalds. I do not propose to make such an order. The travel is far from onerous, being up to an hour and a half, and the need for a mid-point is completely unnecessary (leaving aside the general efficacy of such an arrangement).
Once X commences spending two nights per weekend with his father, I would propose that the arrangement then shift to that which the father seeks and that which would be less onerous for Ms Brickley, being alternate weekend time. That is not ideal, but it is the most appropriate and just arrangement that can be arrived at balancing the mother and father’s legitimate interests, they being relevant (see Kirby J’s dicta in AMS & AIF (1999) CLR 160), and X’s best interests, including his best interests being served by fulfilment of his right to maintain and develop a meaningful relationship with both parents.
I am satisfied that there is no impediment to the parents’ current and future capacity to engage in such an exercise. More importantly, I am satisfied that once X has commenced school, that the weekend should then extend so that Mr Brickley collects X from and returns X to school. That may well involve Mr Brickley having to make some accommodation arrangement with family or his employer however, if the relationship is to be meaningful, and if there is to be a fulsome demonstration and practice of equal shared parental responsibility, Mr Brickley should be involved in such arrangements.
It is not sufficient that Mr Brickley relies upon Ms Brickley to collect this little boy from school and take him to school every day to meet his convenience. He should make real changes in his life, so that he is available to do it himself, so that this little boy can experience the joy of introducing his father to his teacher and peers at school and his father can similarly share in that joy, gain information from the school teacher, meet the other children in the class and their parents and be a real part of X’s life, not simply someone who never sets foot on the school premises. That is what the full expression of parental responsibility involves and that is what would best contribute to development of a meaningful relationship.
That will also then see the burden of travel, as Ms Brickley proposes shift almost entirely to Mr Brickley as, if he is transporting the child to and from school, he will be doing the driving. That is something Mr Brickley may factor into not only his employment arrangements, but his choice of where he lives.
I must consider the parent’s current and future capacity to communicate and resolve difficulties. Whilst it is suggested that communication between these parents is poor, it is not as poor as many. These parents are able to effectively communicate, even through use of a communication book, something which is incredibly problematic for Mr Brickley with his literacy skills. When Mr Brickley is criticised for not responding in detail or having others do it for him that is somewhat disingenuous and unfair. It is clearly acknowledged and recognised that he has those difficulties.
I do not propose to make an order that the parties use the communication book although I will note their intention to do so. It is a matter for them. It is not for this Court to prescribe for parents, who will have equal shared parental responsibility, how they should communicate with each other. However, there are many means available to these parties, including telephone, text message, email and a full gamut of electronic communication not previously available to earlier generations. How they choose to communicate is a matter for them.
The communication that has occurred to date has been perfectly acceptable. It has been polite, cordial and business-like. It has achieved its purpose. Largely, Mr Brickley has acquiesced in decision making and, thus, he has received or been given information, rather than necessarily providing it or being actively involved in making a decision as to what will occur based upon information. However, they are behaviours that, presumably over time, Mr Brickley will fall into and become comfortable with playing a role in.
I am satisfied that the parents’ current and future capacity to communicate and resolve difficulties, noting that they resolved their property arrangements on the first return date of the proceedings and have been able to negotiate arrangements without significant difficulty to date, is such as to support both a gradual, albeit more expedited increase in time and movement to overnight time than Ms Brickley supports, and equal shared parental responsibility.
As regards the impact on the child, I have no evidence as to that issue at all. It is not suggested that the child has come to significant harm. That is not to ignore the allegations raised by Ms Brickley as to the child being pushed which allegation is denied by Mr Brickley, nor the child falling in the father’s care and grazing his nose and face or the suggested concerns with respect to the dog in the father’s household, a Maltese terrier obtained from a shelter and who it is suggested to be wary of strangers and nip people from time to time.
Whilst there is a concern and fear that the child will be bitten, other than one suggested occasion when the child has said to have complained, but without apparent injury, it has not come to pass.
I am satisfied that the impact on the child of increasing time with his father and, thus and thereby, developing a more complete and meaningful relationship with him is beneficial and outweighs the perceived concerns arising from the father’s suggested lack of capacity or capacity to change.
Capacity of the parents
I have addressed that above and I am satisfied that each parent has sufficient capacity to meet the child’s needs. That is directed far more at Mr Brickley as Ms Brickley is clearly a highly capable, functioning parent.
Mr Brickley is also a capable, functioning parent. He has not had much opportunity to demonstrate it and has, on occasions, let Ms Brickley down through not meeting her expectations. However, her expectations of him are at her standard which is incredibly high and would be met by few parents. Mr Brickley does his best. He does, as it were, muddle through. The child’s needs would appear to be met adequately at least.
Maturity, sex, lifestyle and background of the child
This is a very little boy with some specific issues in his life and development, particularly around his speech.
I am satisfied that whilst Mr Brickley is readily frustrated regarding the child’s inability to properly communicate with him or communicate in the fashion that, no doubt, Mr Brickley would desire and will one day, no doubt, do, particularly if he becomes more engaged in speech pathology exercises with him, that the child will cope with and benefit from the arrangements I propose to order.
Aboriginality
Neither parent nor the child identifies as Aboriginal or Torres Strait Islander.
The attitude to the child and responsibilities of parenthood
That is canvassed above. I am satisfied that I should not be overly critical of either parent’s attitude.
Mr Brickley asked me to be critical of Ms Brickley, particularly in relation to what he suggests is a lack of willingness to let go and trust him. She has some basis upon which she might not.
Ms Brickley asked me to be critical of the attitude demonstrated by Mr Brickley for the reasons set out above and, again, I am not satisfied I can or should be.
Family violence involving the child or member of the child’s family
To the extent that I have indicated that I am satisfied that a finding that family violence has occurred can be made, it is to be noted that what is suggested, through the father’s own concession, is that when he raises his voice, yells and rants at the mother and during verbal altercations between them, that she is fearful of him.
Mr Brickley is a large man. It is not surprising that Ms Brickley might be scared in those circumstances.
I am not satisfied that the finding of family violence made by me would obviate against a proper and appropriate exercise of equal shared parental responsibility, nor that the obligations thus imposed by section 65DAC of the Act would be onerous.
Family violence orders
There are none.
Whether it is preferable to make orders that are least likely to lead to the institution of future proceedings
Normally I would be loath to make orders with respect to a child of two-and-a-half that are designed to continue through to and then prescribe arrangements once he commences school which will certainly not be before 2016. However, in this case I propose to.
There is no purpose to be served through these parties participating in further proceedings that are unnecessary, such as would arise if orders were made for the next 18 months to two years, and leaving the parents to then renegotiate arrangements and, failing renegotiation, returning to Court.
I can reasonably predict and with some confidence predict that a very gradual build-up of time, in staged yearly reviews, will meet this little boy’s best interests and needs.
For all of those reasons I am satisfied that I should make orders as alluded to and which provide for a continuation of the Sunday time until X’s third birthday later this year. Time would then increase to incorporate one overnight per week and from Saturday afternoon/evening through to Sunday.
Having then attained the age of four, time would increase to Friday until Sunday. Once X commences school and, thus, that period running for some little time, the weekends then evolving to school collections and returns.
I do not propose, as indicated, to make orders about a communication book but will note its utility and the parties’ intentions to continue using it.
A number of orders are sought prescribing the parents’ behaviour during the child’s time with them, and principally Mr Brickley’s. For instance orders are sought to the effect that Mr Brickley not use illicit drugs whilst the child is in his care. I am not satisfied that it is appropriate for the Court to make such an order. There are perfectly good state laws that make it illegal, hence they are illicit, and it is not for this Court to reinforce state law, nor tacitly to condone its breach at other times, such as when the child is not in his care. More fundamentally, there is simply no evidence the father has ever used them.
I am not satisfied that orders of that nature, as between parents with equal shared parental responsibility, as a general proposition and specifically by reference to the evidence in this case, would be appropriate.
Accordingly, I make orders as set out at the beginning of these reasons.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 12 March 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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