CAMPBELL & MORGAN

[2019] FamCA 19

FAMILY COURT OF AUSTRALIA

CAMPBELL & MORGAN [2019] FamCA 19

FAMILY LAW – CHILDREN – Residence – where there are competing applications for one child – where the child is ordered to live with the mother – where the child has lived with the mother since separation – where the father spent supervised time with the child during proceedings – where the father progressed to spending unsupervised time with the child – where the parties are in dispute around how much time the child will spend with the father – where the child struggles with the hostility between the parents that he has been heavily exposed to – where the child is articulate and mature – where the orders provide for the child to spend significant and substantial time with the father - where the orders allow the child to continue to develop a strong relationship with the father whilst easing his anxiety caused from being away from his primary caregiver and main attachment figure.

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – where proceedings were commenced in the Federal Circuit Court of Australia – where proceedings were transferred due to the child’s mental health and behaviour.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – where the presumption of equal shared parental responsibility applies – where the mother in the past has exercised parental responsibility without consulting the father – where if the mother was given sole parental responsibility there is a risk she will entirely exclude the father from decisions regarding the child - where both of the parents are committed to the safety and wellbeing of the child – where both parents have the capacity to meet the child’s needs – where the parties are restrained from departing from school enrolments or making decisions regarding medical and therapeutic treatment without written consent of the other parent.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Campbell

RESPONDENT: Ms Morgan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Gosford Family Law

FILE NUMBER: NCC 618 of 2016

DATE DELIVERED: 23 January 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 6-8 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

THE APPLICANT: Representing himself

COUNSEL FOR THE RESPONDENT: Mr Kelly

SOLICITOR FOR THE RESPONDENT: Ashby Family Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Gosford Family Law

Orders

1. That all prior parenting orders in relation to X born … 2011 (“the child”) are discharged.

Parental responsibility

1. That the parents have equal shared parental responsibility for decisions regarding the long term issues for the child (including but not limited to education, specialist medical attention and religious instruction).

2. That each parent shall have sole parental responsibility for decisions about the day to day care of the child while he is living with/spending time with that parent.

3. That each parent is restrained from the following actions unless there is prior written consent of the other parent:

   (a)Changing the enrolment of the child from his current school E School (“the child’s school”) other than for progression to high school;

   (b)Taking the child for specialist medical attention; psychological assessment and intervention; psychiatric assessment and intervention or counselling of any kind whatsoever without the prior written consent of the other party.

Residence

1. That the child live with the mother.

Spend time with

1. The mother shall use her best endeavours to ensure that the child spends time with the father as follows:

   6.1During school terms in 2019:

   6.1.1Each alternate weekend from Friday after school until Sunday at 6.00 pm (or Monday at 6.00 pm if it is a public holiday) commencing 1 February 2019;

   6.1.2Changeover on the Friday during school terms to be effected by the parents or their nominee well known to the child immediately after school or from after school care, as may be arranged by the father, and on the Sunday (or Monday as may be the case) to be effected by each parent or his or her nominee at the McDonald’s Restaurant at Suburb F;

   6.2During school terms thereafter, commencing in Term 1 2020:

   6.2.1Each alternate weekend from Friday after school to before school Monday with the father or his nominee to collect the child from, and deliver the child to, school;

   6.2.2In the event that the child is not attending school on the Friday and/or Monday of changeover, that weekend changeover event shall take place at the McDonald’s Restaurant at Suburb F;

   6.3During school holidays commencing at end of Term 2 in 2019:

   6.3.1In even numbered years, for seven nights from the conclusion of school or from after school care, as may be arranged by the father, on the last Friday of school term until 3.00 pm on the following Friday at McDonald’s Restaurant at Suburb F by each parent or his or her nominee;

   6.3.2In odd numbered years, for seven nights from 3.00 pm on the midpoint Friday of school holidays until 3.00 pm on the last Friday of the school holidays, with changeover on both occasions at McDonald’s Restaurant at Suburb F by each parent or his or her nominee;

   6.3.3Changeover on a school day to be effected after school or after school care, as may be arranged by the father, and on the Sunday (or Monday as may be the case) to be effected by each parent or his or her nominee at the McDonald’s Restaurant at Suburb F:

   6.3.3.1In the event that the child is not attending school on the Friday of changeover, changeover shall take place at the McDonald’s Restaurant at Suburb F by each parent or his or her nominee;

   6.3.4During the school holidays which follow Term 4:

   6.3.4.1In even numbered years, from 6.00 pm on the Friday of the last week of term until 6.00 pm on the Friday seven nights later, and thereafter, each alternate week until the end of the school holidays;

   6.3.4.2In odd numbered years, from 6.00 pm on the Friday of the second week of the school holidays, until 6.00 pm on the Friday seven nights later, and thereafter each alternate week until the end of the school holidays;

   6.3.4.3Notwithstanding any other order, the child shall be returned to his mother at 6.00 pm two nights before the commencement of Term 1 of the next school year;

   6.3.4.4All changeovers during the Term 4 holidays shall be effected by the parents or his or her nominee at the McDonald’s Restaurant at Suburb F.

Special occasions

1. Notwithstanding any other order, the child spend time with each parent at Christmas as follows:

   7.1With the mother:

   7.1.1In even numbered years, from 9.00 am Christmas Eve until 3.00 pm Christmas Day;

   7.1.2In odd numbered years, from 3.00 pm Christmas Day until 6.00 pm Boxing Day;

   7.2With the father:

   7.2.1In even numbered years, from 3.00 pm Christmas Day until 6.00 pm Boxing Day;

   7.2.2In odd numbered years, from 9.00 am Christmas Eve until 3.00 pm Christmas Day;

   7.3Changeover to occur at the McDonald’s Restaurant at Suburb F by the parents or his or her nominee.

2. Notwithstanding any other order, the child spend time with each parent as follows:

   8.1On Mother’s Day with the mother from 5.00 pm on the Saturday immediately prior to Mother’s Day and to remain with the mother for the entirety of Mother’s Day;

   8.2On Father’s Day with the father from 5.00 pm on the Saturday immediately prior to Father’s Day until 6.00 pm on Father’s Day should the child not otherwise be spending time with the father.

3. Notwithstanding any other order the child spend time with the father on his birthday as follows:

   9.1If a school day, with the father from after school or 3.00 pm, until 6.00 pm on the same day;

   9.2If a non-school day, for a period of no less than four hours as agreed but failing agreement from 3.00 pm until 7.00 pm.

4. Notwithstanding any other order the child spend time with each parent at Easter as follows:

   10.1With the mother:

   10.1.1In even numbered years from 6.00 pm Easter Saturday until 6.00 pm Easter Monday;

   10.1.2In odd numbered years from 9.00 am Good Friday until 6.00 pm on Easter Saturday;

   10.2With the father:

   10.2.1In even numbered years from 9.00 am on Good Friday until 6.00 pm on Easter Saturday;

   10.2.2In odd numbered years from 6.00 pm Easter Saturday until 6.00 pm Easter Monday.

Communication

1. The parents shall use their best endeavours to ensure that the child communicates by telephone or Skype or similar audio/visual method, with the parent with whom he is not with each Tuesday and Friday between 6.30 pm and 7.00 pm.

2. Each parent communicate to the other parent as soon as practicable upon any of the following incidents involving the child:

   12.1Becoming seriously ill;

   12.2Being involved in an accident or other incident causing injury requiring medical attention;

   12.3Attending an Accident and Emergency unit at a hospital;

   12.4Being admitted to hospital;

   12.5Any other emergency concerning the child’s health, welfare and wellbeing.

3. Each parent is restrained from denigrating the other parent and/or members of the other parent’s family in the presence or hearing of the child and each parent shall use their best endeavours to ensure that no member of their family or friends denigrates the other parent in the presence or hearing of the child.

4. Both parents are authorised (and a copy of these orders shall be sufficient authority):

   14.1To receive such notices, newsletters, invitations, photographs, reports and other documents or information normally provided to parents from any school which the children may attend from time to time;

   14.2To attend all functions to which parents are normally invited by any school which the child may attend from time to time, including but not limited to concerts, awards ceremonies, assemblies, sports days and parent/teacher evenings;

   14.3To receive such medical reports, test results, medical notes and other similar documents normally provided to parents from any medical practitioner which the child may attend from time to time;

   14.4To attend any medical or health appointment for the child where the treating practitioner requests or recommends the attendance of either or both parents.

Independent Children’s Lawyer

1. That the Independent Children’s Lawyer (“ICL”) provide to the child’s school a copy of these orders.

2. That the mother arrange for the child to meet with the ICL promptly to enable the ICL to explain the orders to the child and to answer any of his questions arising from the explanation.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Campbell & Morgan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 618 of 2016

Mr Campbell

Applicant

And

Ms Morgan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of the only child of the parties’ relationship the child aged seven and a half years at date of trial.

2. The parties began a relationship early in 2001. Either in mid-2002 (father), or in 2005 (mother), the father purchased a property in Suburb G in Sydney and the parties began living there together. There is no significance for the purpose of this parenting dispute as to when cohabitation began.

3. It is agreed that in 2003 the mother had the misfortune to have an ectopic pregnancy and was hospitalised after surgery for two weeks.

4. In 2006 the mother was diagnosed with Type 1 Diabetes and spent three weeks in hospital.

5. Later in that year the father was declared bankrupt.

6. In 2008 a property at C Town was purchased in the name of the mother.

7. In early 2009 the mother had a second ectopic pregnancy the consequence of which was a medical inability to conceive naturally. The parties entered the IVF program and in July 2010 the mother fell pregnant with the subject child.

8. In 2011 the subject child was born to the delight of both parents.

9. The parties were clearly committed and hoped for a long term relationship although there had been periods of separation.

10. In February 2013 the mother re-mortgaged the property in order to fund renovations to the home.

11. In January 2014 the parties separated and the relationship ended on a final basis at that time.

12. The subject child was then close to three years old. He has lived with his mother since separation of his parents.

The Parties

The Father

1. The applicant is the father, Mr Campbell, aged 43. His household consists of himself, his partner Ms J and her two children from a prior marriage, Y aged almost 15 and Z aged 10. Those two children are in a shared care relationship between Ms J and their own father.

2. The father is by occupation a supervisor.

3. He and his partner live in rented accommodation at K Town.

The Mother

1. The respondent is the mother, Ms Morgan, aged 43. The household of the mother consists of herself and the subject child, living in the three bedroomed property at C Town owned by the mother subject to a mortgage.

2. A recent relationship for the mother ended in February 2018 and there is no reference to any other partner for the mother.

3. Travel between the two households takes approximately 50 minutes to an hour by car.

History of Relevant Events

1. The father filed an Initiating Application in the Federal Circuit Court on 11 March 2016. That was exclusively about property and in the witness box the father explained that he did not seek parenting orders because at that time he was seeing his son and did not see the need for litigation.

2. On 14 June 2016 the mother responded by filing a document seeking orders both as to property and parenting. She proposed that the child spend supervised time with the father each Wednesday from 4.00 pm to 6.00 pm and each alternate weekend on Saturday for two hours and on Sunday for two hours in the afternoon. She proposed a mental health assessment for the father before that time began.

3. The mother also filed a Notice of Risk alleging that there was a risk to the child arising from the mental ill-health of the father from abuse of drugs or alcohol and that the father did suffer a serious parental incapacity.[1] The mother also alleged that there had been family violence in the relationship between the parties.[2] 

   [1] Notice of Risk filed 15/06/2016

   [2] Notice of Risk filed 15/06/2016

4. At that time the child was no longer spending time with his father as he had done previously.

5. On 8 August 2016 orders were made be consent that the child live with the mother and spend time with the father in the way that the mother had proposed, although for slightly longer periods, three hours on each weekend day of alternate weekends with such time to be supervised.

6. On 19 September 2016 the father filed an Amended Initiating Application proposing parenting orders as follows:

   ·Equal shared parental responsibility;

   ·Residence with the mother;

   ·Time with the father on alternate weekends and on each other Sunday for the day, together with Wednesday nights until before school on Thursday; and

   ·Half school holidays.

7. On 11 November 2016 further interim orders were made for the child to spend time with the father supervised at a children’s contact centre in Suburb L, at times recommended by the centre.

Transfer to the Family Court

1. On 31 March 2017 orders were made in the Federal Circuit Court for the matter to be transferred to this Court. At that time, the orders earlier made by consent for supervision of the father’s time with the child, were discharged.

2. On 21 July 2017 the parties were directed to attend for interviews for a Family Report.

3. The parties were unable to reach interim consent orders but the mother was open to the father attending the child’s sporting events.

4. The father was also noted to be open to attending, together with the mother, a suitable practitioner such as a paediatrician or psychologist and to share costs of assessment and therapy.

5. On 5 October 2017 the father filed an Application in a Case seeking orders for time with the child through the week, at holidays and communication by telephone.

6. The mother filed a Response seeking dismissal of the application.

7. The father filed an Amended Application in a Case proposing time between himself and the child.

8. On 1 December 2017 orders were made after an interim  hearing which provided for the following arrangements:

   ·For the child to spend time with his father on one day of each weekend from 9.00 am to 5.00 pm for a period of time, progressing to weekends extending from 9.00 am Saturday to 5.00 pm Sunday, with changeover to be at McDonald’s at Suburb F;

   ·Provision for telephone contact;

   ·Restraints on denigration; and

   ·Specific orders for exchange of information.

9. Those orders have been complied with although there have been difficulties around changeover, most particularly changeover from the mother to the father at the commencement of periods of time.

10. On 7 February 2018 the father withdrew his application for de facto property settlement. The trustee in bankruptcy withdrew as a party from the proceedings.

11. On 3 May 2018, on the application of the mother the proposed trial dates for May 2018 were vacated and the trial adjourned to 6 August 2018 for three days.

12. The hearing ran and was completed within the three days allocated.

The Issues

1. Through his application the father conceded that the child should continue to live with the mother.

2. The areas of dispute were:

   a)Whether the mother should have sole parental responsibility or that the parties should share parental responsibility as proposed by the father;

   b)The periods of time that the child would spend with the father; the mother proposing a reduction of time to one weekend day of each alternate weekend from 9.00 am to 6.00 pm and for days in proximity to the special days for which orders are generally made, for instance Boxing Day, Easter Saturday, on the child’s birthday and on Father’s Day.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father

   (a)Amended Initiating Application filed 9/02/2018;

   (b)Notice of Risk filed in the Federal Circuit Court on 19/09/2016;

   (c)Affidavit of the father Mr Campbell filed 29/06/2018;

   (d)Affidavit of Ms J [father’s partner] filed 29/06/2018;

   The Respondent Mother

   (e)Amended Response filed 19/06/2018;

   (f)Notice of Risk filed in the Federal Circuit Court on 15/06/2016;

   (g)Affidavit of the mother Ms Morgan filed 19/06/2018;

   (h)Affidavit of Ms M Morgan [maternal grandmother] filed 22/06/2018;

   (i)Affidavit of Ms N Morgan [maternal aunt] filed 16/06/2018;

   Reports

   (j)Family Report dated 18/10/2017;

   (k)Child Inclusive Conference Memorandum dated 6/10/2016.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

1. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

2. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

3. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

4. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. The mother proposes that she have sole parental responsibility for the child. The Family Consultant supported that approach with the proviso that the mother “keep the father informed of any major decisions or events”.

2. The evidence suggests that if the mother was ordered to do so she would tell the father what was happening for the child at school, medically and for extra- curricular activities, but only after decisions had been made and implemented. If the parties were on good terms that would work reasonably well, one parent would trust the other to make decisions likely to suit the child and both parents.

3. However in this case, sole parental responsibility to the mother is likely to be welcomed by her as authority to make all decisions without reference to the ideas and preferences and availability of the father.

4. I am supported in this view by the risks identified by the mother in her Notice of Risk including a “serious parental incapacity” for the father.

5. The symbolism for the child would be unhelpful to him, that his mother was “in charge” of him and his father was not.

6. Equal shared parental responsibility requires consultation in advance of decision making. The mother may not enjoy raising with the father decisions for future consideration but she is capable of doing so.

7. Difficulties in compliance will be reduced by orders restraining both parents from departing from current enrolment at school and requiring written consent in advance from each other before the child has specialist medical and other therapeutic treatment.

8. There will also be provision for the orders to be provided by the Independent Children’s Lawyer (“ICL”) to the principal of the child’s school.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. Each party acknowledges that there is a benefit to the child of having a meaningful relationship with the other parent. If I accept the evidence of the father on this point, as I do, the child enjoys a good relationship with him, although displays aggressive, oppositional behaviour very often at the commencement of periods of time.

2. The child is experiencing some psychological harm but the evidence does not support a finding that that harm is through exposure to abuse, neglect or family violence. What the evidence does suggest is that the child struggles with the hostility between his parents and is unable to control or regulate his emotions in the transition between them, especially from his mother to his father.

3. That situation is evaluated in this way by the Family Consultant:[3]

   [The child’s] experience of the parental separation has been one of conflict, of inconsistent arrangements that have caused him to become distressed and confused and of inconsistent parenting which has increased his level of anxiety. This has led to him becoming angry and aggressive because he is not at a developmental age where he is able to reconcile the difference in parenting styles.

   [3] Family Report dated 18/10/2017, par 132

4. I turn to those of the additional considerations which are relevant in this situation.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The child was able to express his views in quite an articulate way given that he was, at the time of interview, six and a half years old. He was described by the Family Consultant as “an intelligent child who was a lovely conversationalist.”[4]

   [4] Family Report dated 18/10/2017, par 104

2. The child said that he likes spending time with his father but did not like it when he was not allowed to go home or telephone the mother by inference when he wanted to, “maybe I could just go to Dad’s and if he doesn’t let me sleep in his bed, then if I wake up at 2 o’clock I could go home to mum.”[5]

   [5] Family Report dated 18/10/2017, par 106

3. The child expressed his positive feelings towards the father’s partner; he was critical and complaining about her son Y but positive about the younger child Z. He was otherwise happy to go to his father’s home.

4. The child is reported as having said that he wanted the judge to know that he likes spending time with the father and also with Ms J [the father’s partner], that he did not want to live with the father but would like to spend weekend time with him.

5. At that time, in October 2017, he was hoping to either sleep in his father’s bed or to have a mattress at the side of his father’s bed in case he needed to be comforted during the night. The Family Consultant reflected that that was a developmentally appropriate view and also a reflection of the closeness between mother and child where there was just the two of them in the household. I accept that the child was expressing a clear view that he wanted to spend time with his father and he wanted it to be weekend time but was looking for some reassurance at times when he felt a bit insecure.

6. It is likely that the child would be reassured more by the father’s willingness to allow such an arrangement than the arrangement itself.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has his closest relationship with his mother who is his primary carer. He has a close loving and important relationship with his father. He also has good relationships on both sides of his extended family.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother has made decisions about the child without consultation with the father first, seeing herself as primarily responsible for the child and also regarding the father as irresponsible, even risky.

2. The father has taken every opportunity he has been able to spend time with the child and to communicate with him. He has experienced considerable frustration with what he perceives to be the mother’s obstructive attitude to his relationship with the child.

3. The mother is intent on protecting the child from what the mother perceives to be poor parenting. The message for the child is that the mother dislikes and mistrusts the father. Yet the child knows the father well enough to like him and trust him. He also likes and trusts his mother. It is hard for him to reconcile what he personally knows about his father, with what his mother is suggesting.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father was, until late in 2017, a bankrupt for a period of time which imposed a consequential financial strain on the mother who works three days a week in order to meet the mortgage and support herself and the child.

2. The father is now again in employment and child support, if it has not already been assessed is soon likely to be, and payments re-established.

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

1. Since orders were made in December 2017 the child has been spending time with his father on alternate weekends. An increase of time from one overnight to a two night weekend should be easily manageable, especially with the supportive and knowledgeable presence of Ms J.

2. After 12 months an increase to a three night weekend will deliver the benefits of changeovers at school. That aspect would be a benefit now but it is likely that the child would feel worried about himself and his mother if time progressed at that pace.

3. Holiday time as proposed by the father in one week blocks will need to be graduated to ensure that a child who is already anxious and reactive, does not baulk more than he already does at the transition between his parents.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. The parents live about one hours drive apart. They each drive. The practical difficulty is not in the collection and delivery of the child but how to ensure a stress free, smooth changeover at the commencement of a period of time.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The Family Consultant described the observation between the child, the mother and the maternal grandmother in most positive terms:

   It was evident the mother and the maternal grandmother are very warm and nurturing women and the child appeared to enjoy being in their company. He appeared to enjoy interacting with them and was relaxed and calm colouring in.

2. In observation between the father, the child, the father’s partner and her daughter, the child is described in this way “…instantly gravitated towards the father. They hugged each other and it did not take long before the child warmed to everyone in the room including [Z]”.[6]

   [6] Family Report dated 18/10/2017, pars 119 & 121

3. Each of the parents has the capacity to meet the needs of the child, socially, financially and emotionally. The mother probably is more finely attuned to the child’s emotional needs. At the same time she is more inclined to indulge what the child wants rather than to have boundaries and consequences.

4. There is a benefit to the child in experiencing the different approaches of each of his parents.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child was seven and a half years old a date of trial. He is an intelligent child who enjoys school, has friends and participates in extra-curricular activities.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. Both of the parents take their responsibilities as parents very seriously. The child is the only child of each of them and is extremely precious.

2. The mother may underestimate the significance of the role of the relationship between the child and his father now and into the future. The mother outlined in her affidavit many negative aspects of the father which have made her feel pleased to have separated from him. If she can find it within herself to recall what was good about the father in the nine years they were together before the child was born, she will more easily be able to understand and support the relationship of the child with his father.

3. The father may be mistaken in his view that the mother is exclusively responsible for the child’s present reluctance to come with him at changeover. The evidence supports a finding that the child expresses the tension between the parents through his own behaviour. He complains to the mother about events in the father’s household. He has on occasions been physically aggressive towards the father, kicking and punching. It is a pressure that should be removed from him.

Any family violence involving the child or a member of the child’s family, and 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

1. The mother asserts, and the father denies that there was family violence during the course of the relationship.

2. The mother applied for an Apprehended Violence Order which was declined. The father asserts there was no basis for it.

3. In the Family Report the child reports seeing and hearing his parents yelling at each other. The Family Consultant considers that the child understands the dislike and hostility between his parents which is contributing to his problems.

Any other fact or circumstance that the court thinks is relevant

1. In May 2014 the father was admitted to O Hospital as an involuntary patient. The records confirm that he did spend one night in hospital, returning home to sleep on the second night before coming back to hospital to be discharged. It is apparent that he was in an emotional and distraught state after the end of his relationship with his then partner.

2. He was extensively cross-examined on this topic as if it were a determinative factor of the time the child would spend with him. However there is nothing about his trip to hospital which would necessitate protection of the child from the father.

3. On 4 February 2015 the father took a cricket bat and visited the home of his former partner with the intention of using the cricket bat on her new partner. He did not in fact do so. He described himself as “provoked”. This is certainly an incident of some concern. If the child were to be exposed to the father taking such vengeful action when he is provoked in future, it would be most destructive for the child. However there is nothing contrary to the assertion of the father that it is the one and only time that he has come to police attention for violence.

4. Certainly, the conduct of the child on occasions at changeovers and at the supervised contact centre when the child was not permitted to take presents with him (at the direction of the supervisor) could only be described as “provoking”. The father was, in dealing with his son, able to remain in control of himself and to be focused on the need of the child to recover from what could only be described as a tantrum.

Conclusion

1. Substantial and significant time for the child with his father will clearly be of benefit to him and in accordance with his own wishes. Graduated weekends and holiday time is the appropriate course. He is still somewhat anxious about spending too long away from his mother. With her support that level of worry should reduce.

2. Orders are made accordingly.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 January 2019.

Associate: 

Date:  23 January 2019